Having won control of the White House and Congress, Democrats are turning their attention to their legislative agenda. High on the list of priorities? The Fairness Doctrine. Democrats such as House Speaker Nancy Pelosi of California and Sen. Charles Schumer of New York hope to use their party's victory to reinstate the Fairness Doctrine on radio, but the return of the doctrine would be bad news for them – and could end up being good news for conservatives.
Not familiar with the Fairness Doctrine? It's not your fault – it hasn't been in existence for more than 20 years. Meant to ensure every side received fair hearing on controversial issues, the doctrine was tossed out by the Federal Communications Commission (FCC) during the Reagan years.
Many Democrats are eager to bring the doctrine back, and it is likely to be introduced early on in the next Congress. Senator Schumer underscored this point when, on Election Day, he made his case for the doctrine on Fox News, arguing that government has a right to regulate radio for the public good, as it does with pornography.
In conservative media, the doctrine has been getting play throughout the campaign. As Barack Obama's victory looked increasingly likely, David Frum used the Fairness Doctrine to argue for divided government, warning that a Democratic Congress would try to silence the opposition through the Fairness Doctrine. Others contended that Democrats wanted the doctrine to force more stations to air less-popular liberal radio programming.
Perhaps these are the goals. If so, they show how off-base these Democrats are about the history of the Fairness Doctrine, and how out-of-tune they are with the current direction of the Democratic base. Liberals aren't clamoring for a voice on radio – they're staking out territory on the Internet, which they've effectively used not only to air grievances and ideas but to organize political action.
More important, though, the Fairness Doctrine did more to help develop conservative talk radio while in effect than it has in the 20 years since its revocation.
Admittedly, that conclusion isn't obvious. Democrats' decision to advance the Fairness Doctrine makes sense according to conventional explanations of conservative broadcasting's rise. In talk radio lore, the abolishment of the doctrine in 1987 gave rise to Rush Limbaugh and a slew of conservative imitators. That Limbaugh went national in 1988 lends credence to this theory.
But the Fairness Doctrine presented conservatives with a sweeping example of liberal media bias, a charge they have used to build and justify alternative conservative media. First articulated in 1949, the doctrine had a chilling effect on conservative opinion. No one – not the FCC, not Congress, not broadcasters – knew what the doctrine required other than that broadcasters ensure fairness.
But what did "fairness" mean? In many ways, the standard seemed to be the one a Supreme Court justice famously adopted toward pornography: FCC officials would know it when they saw it.
Rather than air controversial issues and risk license revocation if the FCC deemed the coverage unfair, many broadcasters simply steered clear of such material. This decision hit conservative broadcasters hard. In a political culture dominated by liberal consensus – the belief in the positive value of government action, containment of communism, and regulation of industry – conservatism was controversial in a way liberalism was not.
Take the case of Clarence Manion, whose conservative radio show ran from 1954 through 1979. In October 1957, Mr. Manion taped an interview with Herbert Kohler about an ongoing strike at Mr. Kohler's Wisconsin plant. The national radio network carrying Manion's program refused to air the broadcast. Too controversial, network executives said, claiming (incorrectly) that the network would have to give time for the union to respond.
The incident convinced Manion and his listeners that conservatives couldn't get a fair shake in established media outlets. Episodes such as these allowed conservatives to seize a populist platform, to decry censorship, and cement their perception of liberal media bias.
That bias argument is central to conservative media: If established media are intractably liberal, then balance demands the existence of alternative right-wing media. Reinstating the Fairness Doctrine resurrects these issues without any prospect of achieving balance in radio broadcasting. Attempts to limit conservative broadcasting would meet instant legal challenges. No court would uphold the doctrine in its earlier ambiguous form, which survived so long only because it faced few legal challenges.
Moreover, liberals would do well to consider the implications of government regulation of on-air content. Do we really want government monitoring broadcasts, weighing their politics, and pushing program remedies? The doctrine died in the 1980s because it was seen as a muzzle on controversial broadcasting. It would do well to stay dead.