The growing influence of mass media in political campaigns has been a concern for campaign finance regulators around the world over the past few decades. The role of the media often goes beyond simply informing citizens about the positions of political parties and competing candidates; it often extends to the formation of the opinions of the electorate on certain subjects and can even determine the results of elections. Many see the potentially corrupting influence of the close relationship between big money and the media in politics as a dangerous mix of dependencies and giving rise to the need for effective regulation. While others may not share this view, there is no doubt that the question of whether, and how, to regulate the influence of money on political discourse is currently being debated on both sides of the Atlantic. .
The purpose of this article is to provide a comprehensive comparative assessment of how national regulators attempt to reduce media influence during political campaigns by regulating the costs associated with radio and television station airtime for political advertisements during election periods. This article will focus on some of the different approaches applied by national regulators and anticipate some relevant upcoming developments in campaign finance regulation around the world.
In the United States, federal campaign finance law does not provide free airtime for candidates in federal elections. Repeated efforts to introduce legislation permitting the provision of free or discounted airtime date back to 1968, when Senator E. William Henry suggested the first free airtime proposal. This effort continued with the recent enactment of the Bipartisan Campaign Reform Act, introduced by Senators McCain and Feingold, which originally contained a proposal to address rising television costs in presidential campaigns. However, this wording was later removed to ensure passage of the entire law. Many legal scholars in the United States are of the view that such a mandate would be unconstitutional because it would violate broadcasters’ First Amendment rights by infringing on broadcasters’ editorial authority and requiring stations to broadcast (and to pay for) speeches and political opinions. that they wouldn’t otherwise broadcast or support. In view of the views expressed by the United States Supreme Court in United Citizens, McCutcheon and other cases that have coupled strong First Amendment protections with issues of political speech, it is difficult to foresee that free airtime will be granted to candidates or parties for federal office in the United States in a near future.
The United Kingdom
In the absence of a system of direct funding for public campaigns, the UK 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 some free airtime on national television and radio during election periods. The UK also bans paid political advertising; the relevant legislation has been confirmed by the European Court of Human Rights in Animal Defenders International v. UK in 2013.
The attribution, length and frequency of political advertisements are decided by an independent regulator called the Office of Communications. In addition to major parties that are generally eligible to receive free airtime, other registered parties are eligible to receive free airtime provided their total number of candidates equals 1/6 or more of the seats up for grabs. .
In France, the general rule is that any form of paid commercial advertising in the press or by any audiovisual means during the three months preceding an election is prohibited. The state, in order to guarantee candidates’ access to the electorate, provides free access to public radio and television for political advertising for a certain period of time during official election campaigns. In presidential elections, each presidential candidate is entitled to equal time for advertising on public television and radio during the official campaign. The minimum total airtime provided by law is fifteen minutes per television and radio channel for each candidate in the first round and one hour in the second round. The Conseil Supérieur de l’Audiovisuel in France, an independent regulator, has been tasked with ensuring compliance with the applicable provisions.
In Germany, the Political Parties Act prohibits political parties from buying airtime on public television or radio. This prohibition is always valid and extends beyond the campaign period. However, the political messages of the political parties reach the electorate thanks to the free broadcasting time of public and private radio and television. The allocation of time off is dealt with by state regulatory authorities and not by an independent authority as in France and the UK.
The specific national examples discussed above indicate that major democracies have adopted different methods of regulating the role that the media, and therefore the big bucks, play in elections. From outright bans on paid political advertising to partial or total permission, the dichotomy is clear: American-style politics, closely tied to private campaign finance, treats paid television and radio as an inextricable part of the political game. The media, as large corporations, can editorialize to take sides and promote any candidate or party they want, but the overall system is subject to disclosure requirements and the judgment of the electorate. Nevertheless, the argument of freedom of expression should not be underestimated in view, in particular, of the relevant constitutional tradition of the United States.
In Europe, the provision of free airtime, especially during election periods, is seen, among other things, as a remedy to the potentially corrupting influence of big money on politics. Regulatory frameworks and independent authorities are responsible for distributing free broadcast time to parties and candidates while setting the conditions for such broadcasts. The controlled exposure of the public to political messages during campaigns is believed to prevent big interests from monopolizing television or radio time in promoting their favorite candidates, while the provision of free airtime to parties and candidates in proportion to their electoral influence guarantees media coverage to small players, creating a level playing field. A different understanding of freedom of expression and its restrictions in many European jurisdictions has allowed legislation prohibiting or extensively regulating paid political advertising to survive judicial scrutiny.
It’s hard to imagine Facebook or Twitter being required by law to post free political ads on behalf of political parties or candidates. The massive expansion of the Internet and social media in recent years has not only reduced the role of television and radio in the political game, but has also opened up a new field of campaigning for candidates and parties.
Effectively regulating this new area 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, expanding free access to the media is arguably one way to achieve it.
Obviously, the Internet and social media cannot be excluded from a common understanding that all political messages should reach the widest possible audience. We are not so far from the era where political battles will be fought exclusively online and where the effective use of the Internet will be decisive for electoral victory. The challenge for regulators is to first perceive the change and then consider mandating equal access to social media and the internet. What is certain is that political campaigns will never be the same again.