The increasing influence of mass media in political campaigns has been an issue of concern for campaign finance regulators worldwide during the past decades. The role of media often goes beyond merely informing the citizens of the positions of competing political parties and candidates; it often extends to shaping the electorate’s views on certain subjects and can even determine election results. Many take the position that the potentially corrupting influence of the close relationship between “big money” and the media in politics constitute a dangerous mixture of dependencies and give rise to a need for effective regulation. While others do not espouse this view, there is no doubt that the issue of whether, and how, to regulate the influence money has on political discourse is one that is currently being debated on both sides of the Atlantic.
The purpose of this post is to provide a comprehensive comparative assessment of how national regulators try to curtail the influence of media during political campaigns by regulating the costs associated with air time by radio and television stations for political advertisements during election periods. This post will focus on some of the different approaches national regulators apply and anticipate some relevant upcoming developments in campaign finance regulation throughout the world.
Federal campaign finance law in the United States does not provide for free air time to candidates for federal office. Repeated efforts to introduce legislation allowing the provision of free or discounted airtime date back to 1968, when Senator E. William Henry suggested the first proposal for free air time. This effort continued with the recent enactment of the Bipartisan Campaign Reform Act, introduced by Senators McCain and Feingold, which originally contained a proposal addressing the rising costs of television in presidential campaigns. That language, however, was subsequently removed to ensure passage for the entire Act. Many legal scholars in the United States take the position that such a mandate would not pass constitutional muster because it would violate the First Amendment rights of broadcasters by intruding on broadcasters' editorial discretion and forcing stations to air (and pay for) political speech and views that they otherwise would not broadcast or support. Given the current United States Supreme Court's articulated views in Citizens United, McCutcheon and other cases that have associated strong First Amendment protections to issues of political speech, it is difficult to anticipate that free broadcast time will be provided for candidates or parties for federal office in the United States in the near future.
The United Kingdom
Lacking a system of direct public campaign financing, the United Kingdom has passed legislation allowing for various forms of indirect funding of political parties and candidates. The most important of these is a provision offering political parties a certain amount of free broadcasting time on national television and radio during an elections period. The United Kingdom also bans paid political advertising; the relevant legislation has been upheld by the European Court of Human Rights in Animal Defenders International v. UK in 2013.
Allocation, length and frequency of political advertisements are decided by an independent regulator called the Office of Communications. Apart from major parties that are commonly entitled to receive free air time, other registered parties are eligible to receive free broadcasting on the condition that their total number of candidates equals 1/6 or more of the seats up for election.
In France, the general rule is that all forms of paid commercial advertisement through the press or by any audiovisual means during the three months preceding an election are prohibited. The state, in order to secure candidates’ access to the electorate, provides free access to public radio and television for political advertisement for a certain amount of time during the official election campaigns. During presidential elections, each presidential candidate is entitled to an equal amount of time for public television and radio broadcast advertisement during the official campaign. The total minimum air time set forth by law is fifteen minutes per television channel and radio station for each candidate on the first ballot and one hour on the second ballot. The Conseil Supérieur de l’Audiovisuel in France, an independent regulator, has been assigned with dealing with making sure that the relevant provisions are complied with.
In Germany, the Law on Political Parties prohibits political parties from purchasing public television or radio airtime. This prohibition is constantly valid and extends beyond the campaign period. However, political messages by political parties reach the electorate through free air time in public and private radio and television broadcasting. Allocation of the free time is processed by state regulatory authorities and not by an independent one as in France and the UK.
The specific national examples discussed above indicate that major democracies have adopted different methods of regulating the role media, and thus big money, play in elections. From a total ban on paid political advertisement to partial or complete permission, the dichotomy is evident: American-style politics, closely linked to private campaign financing, treat paid television and radio air time as an inextricable part of the political game. Media, as big corporations, may editorialize to take sides and promote the candidates or parties they wish, however the overall system is subject to disclosure requirements and the electorate’s judgment. Nevertheless, the Free Speech argument should not be underestimated considering, in particular, the relevant constitutional tradition of the United States.
In Europe, the provision of free air time, especially during election periods, is considered, among others, as a remedy to the potentially corrupting influence of big money on politics. Regulatory frameworks and independent authorities are tasked with distributing free broadcast time to parties and candidates while setting out conditions for such broadcasts. Controlled exposure of the public to political messages during campaigns is thought to restrict big interests from monopolizing television or radio time in promoting their preferred candidates while the provision of free air time to parties and candidates proportionately to their electoral influence secures media coverage to smaller players, creating a level playing field. A different understanding of the freedom of speech and its restrictions in many European jurisdictions has helped legislation banning, or thoroughly regulating, paid political advertisement survive judicial scrutiny.
It is difficult to imagine Facebook or Twitter being forced by law to publish free political advertisements on behalf of political parties or candidates. The massive expansion of the internet and social media the past years has not only decreased the role of television and radio in the political game but has also opened a new campaign field for candidates and parties.
Efficiently regulating this new field is definitely a challenge for regulators around the world. If we accept that creating a level playing field for political parties and candidates is a common goal of modern campaign finance systems, the expansion of free access to the media is arguably one of the ways to achieve that.
Evidently, the internet and the social media cannot be left out of a common understanding that all political messages need to reach the widest possible audience. We are not that far from the era where political battles will be exclusively held online and effective use of the internet will be determinative of election victory. The challenge for regulators is to first perceive the change and then to contemplate whether to mandate equal access to social media and the internet. What is certain is that political campaigns will never be the same.