[Congressional Record Volume 144, Number 36 (Thursday, March 26, 1998)]
[Senate]
[Page S2683]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. NICKLES:
  S. 1872. A bill to prohibit new welfare for politicians; to the 
Committee on Commerce, Science, and Transportation.


            the new welfare for politicians prohibition act

  Mr. NICKLES. Mr. President, I rise today to introduce legislation 
that would prohibit the Federal Communications Commission (FCC) from 
establishing regulations that would compel broadcasters to offer free 
or reduced cost air time to political candidates.
  It is clear that this type of regulation would result in drastic 
change to current communications and campaign finance law and thus, 
exceed the regulatory authority of this agency. Absent a legislative 
directive from Congress, the FCC lacks the authority to require 
broadcasters to offer free or reduced-cost air time for political 
candidates.
  While in many areas of broadcast regulation, the FCC does possess 
broad authority to change its regulation to reflect what is within the 
public interest, that authority has always been specifically granted by 
an act of Congress. This broad authority does NOT extend to the 
regulation of political broadcasting.
  The Communications Act clearly mandates, with respect to candidate 
appearances on broadcasting stations, certain specific requirements for 
FCC to enforce on broadcasters for political candidates. The law 
requires broadcasters to provide candidates with equal opportunities, 
ensure that there is no censorship of political messages, and provide 
``reasonable access'' to federal candidates. As for media rates, the 
Act specifically states that when candidates buy air time, they will be 
accorded a stations' ``lowest unit charge'' for the same class and 
amount of time.
  It seems quite clear that Congress' inclusion of these specific 
provisions indicates that in the area of political 
broadcasting, especially for rates charged for advertising, the FCC 
does not have the authority to rewrite the Communications Act and 
impose a free political time requirement which is inconsistent with 
Congress' specific statement on this issue.

  Any attempt to affect campaign finance reform through overreaching 
FCC regulations rather than through the legislative process, regardless 
of good intentions, is wrong. Any changes or revisions to the campaign 
finance or communication laws should be made by the people through 
their elected representatives and not by non elected federal 
bureaucrats. New regulations from the FCC would further involve the 
government in protected political speech areas and create a patchwork 
of agency regulations without any consistent overall reform.
  Mr. President, during the 105th Congress this body has thoroughly 
debated campaign reform and free air time for political candidates. 
Clearly there is not enough support in this body to pass legislation 
that includes the free air time provisions. This legislative defeat 
does not give the FCC Chairman the authority, even with direction from 
the President, to issue regulations giving candidates free time and 
mandate or bribe the nation's broadcasters to abide by these 
regulations. Again, if this type of reform is to be implemented, it 
requires legislative action by Congress. It is not appropriate for a 
federal agency to mandate this comprehensive reform by regulatory 
action.
  The Constitution is very clear. Article I, Section 1 of the 
Constitution vests in Congress all power to ``make laws which shall be 
used necessary and proper for carrying into Execution the foregoing 
Powers * * *''. Nowhere in the Constitution is the Executive Branch 
vested with the power to make the law. The framers of the Constitution 
understood the threat to our freedom which could be posed by an all-
powerfull executive branch. This principle is as valid today as it was 
when they drafted the Constitution. Any proposed regulations by the FCC 
which would require broadcasters to give free or reduced-cost air time 
to federal political candidates raises serious constitutional concerns.
  This is not the first time that the Clinton administration has tried 
to bypass Congress and legislate by Executive order. They have 
attempted to do this on several occasions. And I think they have done 
so knowing full well they could not get their desired objective through 
Congress.
  Let me remind the FCC, that if this type of regulatory action is 
taken by this agency, I will lead the effort in the Senate to defeat 
the regulation. The Congressional Review Act, gives Congress the 
ability to disapprove regulations, when a simple majority believes that 
the regulation is inappropriate.
  Every member of this body, Democrats and Republicans, should reject 
this approach. We should uphold and protect this institution, the 
legislative branch, and the constitution.
  And so, Mr. President, I have warned the White House that I am 
willing to use any appropriate tools at our disposal to stop this 
egregious abuse of power. I will do what I can to stop the proposed FCC 
regulations on air time for political candidates. And I will do what I 
can to block any other attempts by this administration to legislate by 
executive action. It is my intention to use everything in my power to 
protect this institution. I am hopeful that my colleagues will join me 
in this effort.

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