Indiana Law Review


Keeping Third Parties Minor:
Political Party Access to Broadcasting

I. Introduction

Since 1864, politics in the United States has been dominated by

a two-party system comprised of Republicans and Democrats. Third

parties, however, have raised new issues many of which have been
adopted later by the major parties and have become enshrined in
law. With the increased use of expensive radio and television time

in political campaigns in recent years, federal statutory law and

court opinions about access to the airwaves have been crucial for

minor third parties in their efforts to reach the electorate.^

The "equal time" provision of the Communications Act of 1934,^

the Federal Election Campaign Act of 1971,^ and the United States
Supreme Court decision in Buckley v. Valeo^ have all served to fur-
ther entrench established political parties at the expense of third

parties.

Practical solutions, which Congress might study, do exist to

remedy the discriminatory effects of these communications and cam-
paign laws. The recent reliance upon television advertising as the
major method of political campaigning will continue to endanger the
important role customarily played by third parties in American

political history unless ameliorative action is soon taken.

II. Third Parties in United States History

From 1787 to 1856, various political parties arose and

These parties have been called "minority" or "minor" or "third" parties to
distinguish them from the Democratic and Republican parties; these terms are used in-
terchangeably.

m U.S.C. § 315(a) (1976). While § 315(a) is the provision specifically creating the
"equal time" doctrine, all of § 315 regulates matters of political broadcasts. In par-

ticular, § 315(b) establishes guidelines for the rates which may be charged to can-
didates seeking to obtain air time or attempting to enforce their equal time privilege.

'Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified in scattered sections of 2, 18, 47

U.S.C. (1976)), as amended by Federal Election Campaign Act Amendments of 1974,
Pub. L. No. 93-443, 88 Stat. 1263 (codified in scattered sections of 2, 5, 18, 26, 47 U.S.C.

(1976)), and as amended by Federal Election Campaign Act Amendments of 1976, Pub.
L. No. 94-283, 90 Stat. 475 (codified in scattered sections of 2, 26 U.S.C. (1976))

[hereinafter cited as Federal Election Campaign Act of 1971 as amended]. Also includ-
ed in the scheme of campaign financing and regulation is Subtitle H of the Internal
Revenue Code. The Revenue Act of 1971, Pub. L. No. 92-178, §§ 801-802, 85 Stat. 497
(now I.R.C. §§ 9001-9013). This subtitle consists of two parts: Chapter 95 deals with
funding national party conventions and general election campaigns for President, and

Chapter 96 deals with matching funds for presidential primary campaigns.

M24 U.S. 1 (1976).

713



714 INDIANA LAW REVIEW [Vol. 12:713

declined — the Federalist, National Republican (Whig), Anti-Mason,
American (Know-Nothing), and Free Soil parties. The Democratic-
Republican party endured this period and today is known as the
Democratic party. The Republicans, whose party was founded in
1854, captured the presidency a mere six years later and have con-
tinued since then as a major party.

Although other political parties in the twentieth century have

slated candidates for elective office and have presented ideas, some

of which have become embodied in law, none of them have dislodged
or even seriously contested the political control of the major parties

for more than a brief time.^
Early in the twentieth century, the Socialist party increased its

strength yearly, winning races for 1,200 offices throughout the

United States in 1912.® The party's opposition to World War I,
however, was a major factor in its subsequent decline. Its six per-
cent share of the presidential vote in 1912 dropped in half in the

following two elections and declined precipitously thereafter.^
Differences over policies and personalities created splits in the

Republican party in 1912 and in 1924, producing significant third-

party movements in those years' presidential contests. In 1912,
former President Theodore Roosevelt led the Progressive (Bull

Moose) ticket, out-polling the Republican nominee, incumbent Presi-

dent William Howard Taft. Progressives of both major parties,
socialists, labor unionists, and isolationists joined together in 1924 to

support the candidacy of Wisconsin Senator Robert A. La Follette.
That campaign attracted nearly 5,000,000 votes,® which constituted

almost seventeen percent of the total number cast.^
South Carolina Governor J. Strom Thurmond of the States'

Rights (Dixiecrat) party and former Vice-President Henry A.
Wallace of the Progressive party each received about 1,100,000 of

the votes case for President in 1948.^® More recently, Alabama
Governor George C. Wallace received over 10,000,000 votes, or four-

teen percent of the total vote, in 1968 when he was the presidential
candidate of the American Independent party."

Since the beginning of the twentieth century, numerous can-
didates have appeared on the ballot for the presidency. In the 1976

Tor a discussion of third parties in United States history and their significance,
see generally W. Hesseltine, The Rise and Fall of Third Parties (1957); D. Mazma-
NiAN, Third Parties in Presidential Elections (1974).

"J. Weinstein, The Decline of Socialism in America 1912-1925, at 27 (1967).
^W. Hesseltine, supra note 5, at 38-39.

'Id. at 27, 33.

®D. Mazmanian, supra note 5, at 5.

"U.S. Dept. of Commerce. Historical Statistics of the United States: Co-

lonial Times to 1970, pt. 2, at 1073 (1975).



1979] ACCESS TO BROADCASTING 715

election, there were about a dozen minor party candidates. Of these
candidates, Roger McBride of the Libertarian party and former

Senator Eugene McCarthy, who ran as an independent, appeared on
state ballots for President the most frequently. Neither McBride nor

McCarthy was on the ballot in Indiana, but three other minor party
candidates were, each of whom received insignificant numbers of
votes.

^^

Third-party and independent candidates seek other offices. A
former Governor of Maine, James B. Longley (1975-79), and one of
Virginia's current Senators, Harry Flood Byrd, Jr., both ran as in-
dependents against candidates of the major parties and defeated
them.

In addition to attempting to gain power, minor parties have
served various functions in American politics, including encouraging
various disaffected citizens to participate in the electoral process. A
major function served by minor parties has been the elevation of
new and controversial issues to prominent public debate. ^^

Throughout United States history, third parties have championed
views that later became embodied in the programs of major parties
and then enacted into law. The Anti-Masonic party of the 1820's and
1830's opposed secrecy in government and secret societies such as
the Masons and Phi Beta Kappa.^* In 1832, the Anti-Masons held the
first national convention to nominate a presidential candidate; the

Whigs and the Democrats soon imitated this practice. ^^ While there
may have later developed various defects in the convention system,

^^The minor party candidates for President in 1976 in Indiana ran on the tickets

of the U.S. Labor, Socialist Workers', and American parties.

^^Chief Justice Warren described this value of minor parties in Sweezy v. New
Hampshire, 354 U.S. 234 (1957):

All political ideas cannot and should not be channeled into the programs of

our two major parties. History has amply proved the virtue of political ac-

tivity by minority, dissident groups, who innumerable times have been in the
vanguard of democratic thought and whose programs were ultimately ac-

cepted. . . . The absence of such voices would be a symptom of grave ill-
ness in our society.

Id. at 250-51. In Sweezy, petitioner had been found guilty of refusing to answer ques-

tions asked him by the New Hampshire Attorney General, pursuant to a legislative
resolution directing the officer to determine if there were "subversive persons" in the

state and to suggest legislation regarding the subject. Sweezy had refused to respond

to inquiries about the content of a lecture he had given at the University of New
Hampshire and to indicate the extent of his knowledge regarding the state's Pro-

gressive party and its members. The United States Supreme Court reversed the con-

viction for contempt because of violations of the due process clause of the fourteenth

amendment. Id.

'*W. Hesseltine, supra note 5, at 11.

''Id.



716 INDIANA LAW REVIEW [Vol. 12:713

conventions were significantly more democratic than the previously
used caucus system of nomination.^^

The Free Soil party forced candidates in the 1848 presidential
election to debate the restriction of slavery, the demand for which
became a key Republican issue a decade later/^ Progressive income
taxation, regulation of railroads, child labor laws, postal savings

banks, and social insurance were ideas first raised politically by
Socialists, Farmer-Laborites, Progressives, and Populists at the end

of the nineteenth and the beginning of the twentieth centuries.^®

Other issues first raised politically by these minor parties included

direct election of United States Senators, women's suffrage, primary
elections, recall, and referendum — most of which were adopted na-
tionally or in numerous states early in the twentieth century. By
raising the issue of "busing" to a national level, the American In-
dependent party of 1968 directly contributed to the adoption of bus-

ing policies by the two major parties.^^
While these minor parties did not achieve significant political

power, they did serve important functions in raising issues, some of
which were enacted into law. One observer stated: "If those who are
in favor of a new party are content to remain missionaries, they
might find much comfort in the record of achievement of the nine-
teenth century's third parties."^"

III. Minority Parties and Broadcasting:
The Critical Problem

The critical problem concerning minority parties' access to
broadcasting involves assuring the widest possible exposure to

divergent political views without overburdening the airwaves. Wide
exposure leads to an informed electorate, upon which the proper
functioning of a democracy rests. In 1968 the United States

Supreme Court stated in Williams v. Rhodes-}^ "There is, of course,

"D. Mazmanian, supra note 5, at 67.

^^Id. at 81-82. Most of these reforms were proposed by more than one of the

minor parties mentioned.

'Hd. at 85-87.

^W. Hesseltine, supra note 5, at 18.
"393 U.S. 23 (1968). Williams involved an attack by the candidates for United

States President of the Ohio American Independent and Socialist Labor parties on the

state of Ohio's requirements for minor parties to achieve ballot status. Pursuant to

Ohio law, a party other than the Democratic or Republican parties had to obtain peti-

tions with signatures of 15% of the number of voters in the last gubernatorial election
and file the petitions nine months before the general election. In affirming the lower

federal court's ruling that the law was unconstitutional, the United States Supreme

Court held that the parties were entitled to have their candidates legally qualified for



1979] ACCESS TO BROADCASTING 717

no reason why two parties should retain a permanent monopoly on
the right to have people vote for or against them. Competition in

ideas and governmental policies is at the core of our electoral pro-

cess and of the First Amendment freedoms."^^
Federal regulation of broadcasting is based on the concept that

the airwaves belong to the public. As a result, stations must serve
the "public interest, convenience, and necessity."^^ These factors

distinguish broadcast media from print media, which cannot be re-

quired, by virtue of the first amendment, to inform the electorate by
presenting the views of all candidates for office.^''

A. Regulation of Political Broadcasts: Congressional Intent

Section 315 of the Communications Act of 1934 continued

without significant change the provisions of section 18 of the Radio

Act of 1927.^^ The legislative intent behind both sections of these
acts is uncertain due to limited congressional discussion of their pro-

visions, but it is clear that they were designed to prohibit the
monopolization of the airwaves by one candidate. No direct
reference to third parties appears in the congressional debates on

either section. Section 315, however, was debated less than two

years after a significant third-party presidential campaign by La
Follette, during which several radio stations censored his speeches.

the election without meeting requirements of the Ohio law. The lower court decision

was modified to allow the American Independent party to be listed on the Ohio ballot.

Id. at 35. The Socialist Labor party was not placed on the ballot because its request to

the Court came after the ballots had been printed, while that of the American Indepen-

dent party came before the printing and thus did not involve disruption to the election.

For further discussion of Williams, see 21 U. Fla. L. Rev. 701 (1969).

^393 U.S. at 32.

^^his phrase appears several times in the Communications Act of 1934, codified

in scattered sections of 47 U.S.C. (1976), and is central to the mission of the Federal

Communications Commission.

^*For opinions of the United States Supreme Court discussing the different ap-
plications of the first amendment to print and broadcast media, see Columbia Broad-
casting Sys. V. Democratic Nat'l Comm., 412 U.S. 94 (1973); Red Lion Broadcasting Co.
V. FCC, 395 U.S. 367 (1969). In Columbia Broadcasting, the Court indicated:

[T]he broadcast media pose unique and special problems not present in the

traditional free speech case. Unlike other media, broadcasting is subject to

an inherent physical limitation. Broadcast frequencies are a scarce resource;

they must be portioned out among applicants. All who possess the financial
resources and the desire to communicate by television or radio cannot be

satisfactorily accommodated. The Court spoke to this reality when, in Red
Lion, we said "it is idle to posit an unabridgeable First Amendment right to
broadcast comparable to the right of every individual to speak, write, or

publish."

412 U.S. at 101 (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. at 388).
'^Radio Act of 1927, ch. 169, § 18, 44 Stat. 1162.



718 INDIANA LAW REVIEW [Vol. 12:713

The candidate charged that monopoly interests in broadcasting had
conspired to restrict his access to the electorate.^®

Section 315(a) of the Communications Act of 1934 provides: "If

any licensee shall permit any person who is a legally qualified can-
didate for any public office to use a broadcasting station, he shall af-

ford equal opportunities to all other such candidates for that office

in the use of such broadcasting station.""

In the Senate debate on the Radio Act, Senator Howell of

Nebraska explained the rationale underlying this particular provi-

sion:

We are all familiar with the results of propaganda, its
dangers and its advantages; and the question which we are
called upon to settle now is how the public may enjoy the ad-
vantages of broadcasting and avoid the dangers that may
result therefrom.

. . . Are we to consent to the building up of a great
publicity vehicle and allow it to be controlled by a few men,

and empower those few men to determine what the public
shall hear?

Mr. President, if all candidates can not be heard, none

should be heard. If both sides of a question can not be heard

over a particular radio station, none should be heard. . . .

Are we going to allow these great interests to utilize their
stations to disseminate the kind of publicity only of which

they approve and leave no opportunity for the other side of

public questions to reach the same audience?^

Section 315 was introduced by Senator Dill of Washington, whose
colloquy with Senator Cummins of Iowa implies that the section was
not meant to be limited to the two major parties:

Mr. Cummins: Of course, the Senator understands that
the effect of the amendment now offered is to deny to all
candidates the use of the broadcasting station.

Mr. Dill: Unless it permits one candidate to use it.

Mr. Cummins: But the Senator knows that if it permits
one there will be enough others to insist upon the use of the
service to. take up all the time of the broadcasting stations.

"E. Chester, Radio, Television and American Politics 19 (1969). For a discus-

sion of the legislative history of § 315, see Flory v. FCC, 528 F.2d 124, 128-29 (7th Cir.

1975); Paulsen v. FCC, 491 F.2d 887, 889 (9th Cir. 1974); Felix v. Westinghouse Radio

Stations, Inc., 186 F.2d 1 (3d Cir. 1950), cert, denied, 341 U.S. 909 (1951); Singer, The

FCC and Equal Time: Never-Neverland Revisited, 26 Md. L. Rev. 221 (1967).
="47 U.S.C. § 315(a) (1976).

^^7 Cong. Reg. 12503-04 (1926).



1979] ACCESS TO BROADCASTING 719

Mr. Dill: I will say to the Senator that at present they

are not required to allow anybody to speak over the radio.

Under the House bill they can allow one man to speak and
forbid everybody else to speak. ... If a station permitted a
candidate for Congress to broadcast, then other candidates

for Congress should have an equal right.^29

There have been three changes in the application of section 315

since its enactment. The first was the 1959 amendment in response
to the Federal Communications Commission (FCC) decision in the

Lar Daly case,^" which indicated that the requirement of "equal op-
portunities" applied regardless of the context in which the initial

candidate appeared on the radio or television station.

Daly was a minor party candidate for mayor of Chicago. He
demanded equal time on Chicago television stations when the sta-
tions' news programs covered the pre-election activities of the in-
cumbent Mayor Richard J. Daley. The FCC held that Daly had a
right to television coverage equal to that afforded to Daley.^^

The FCC decision may have been inconsistent with the congres-
sional intent in enacting section 315 and with broadcasting practice

prior to 1959.^^ In the 1959 amendment, Congress exempted from the

2»M at 12502.

^oColumbia Broadcasting Sys., Inc., 18 Rad. Reg. (P & F) 238, affd, 26 F.C.C. 715,

18 Rad. Reg. (P & F) 701 (1959).

3'In debate on the Radio Act, Senators Fess and Dill discussed whether the equal

opportunities provision would apply to a candidate making a speech or other remarks

not connected with his campaign for office. Although Fess thought that the provision

would be applied. Dill believed that the intention of his amendment was to leave such

matters to the rule-making powers of the Federal Radio Commission (predecessor

agency to the FCC) and that it was not his intent to have the section apply under such

circumstances. 67 Cong. Rec. 12503 (1926). When the FCC 30 years later ruled that the

section was applicable under such circumstances, in the Lar Daly case, the Congress

quickly amended the section. Act of Sept. 14, 1959, Pub. L. No. 86-274, 73 Stat. 557.

Former Senator Dill appeared before the Senate committee considering passage of

legislation to overturn the FCC decision and answered questions of Senator John

Pastore of Rhode Island:

Pastore: Mr. Dill, when you chose the word "use" that appears in sec-

tion 315, ... did you mean that the candidate was responsible for initiating

the broadcast?

Dill: Yes. That was the thought.

Pastore: In other words the mere fact that a station would, on its own,

decide to take a picture at a given time of an event which they considered to

be newsworthy, was that in your judgment a use being made by the can-

didate?

Dill: Not at all. . . . And as a candidate myself in those days I was anx-

ious to put out such publicity as would get into the news on the radio, but it

was never considered to be use of the radio as intended by the law. . . . No;

the term "use" was intended to be a use initiated by the candidate. No doubt

about that. Nobody had any other thought.



720 INDIANA LA W REVIEW [Vol. 12:713

"equal opportunities" requirement of section 315 appearances of can-

didates on any bona fide newscast, bona fide news interview, bona
fide news documentary, or on-the-spot coverage of bona fide news
events.^^

In 1960, a law suspended the application of the section to the

races for President and Vice-President.^* The exemption allowed
John F. Kennedy and Richard Nixon to meet in three radio and
television debates without similar broadcast access being provided

to candidates of minor parties.

Finally, a 1971 statute amending section 312(a)(7) of the Com-
munications Act of 1934^^ required stations to '*allow reasonable ac-
cess to or to permit purchase of reasonable amounts of time for the
use of a broadcasting station by a legally qualified candidate for

Federal elective office on behalf of his candidacy ."^^ Thus, in effect,

section 315 requires that time be made available only to candidates
for federal office. There is no requirement that time be made
available to candidates for state or local office; the broadcast sta-

tions are allowed to exercise their discretion in selling air time to

them. Whether time is purchased by candidates for state and local
office or by candidates for federal office, any appearance by a can-

didate entitles all other candidates for the same office to have an
equal opportunity to use broadcast time on that station under terms

and conditions similar to the initial use. The exception to this equal
opportunities requirement arises when an appearance is classified as

Political Broadcasting: Hearings on S. 1585, S. 1604, S. 1858, and S. 1929 Before the

Subcomm. on Communications Of the Senate Comm. on Interstate and Foreign Com-
merce, 86th Cong., 1st Sess. 113 (1959) [hereinafter cited as Political Broadcasting].

Frank Stanton of the Columbia Broadcasting System (CBS) testified that his network

had believed that § 315(a) did not apply to newscasts. Id. at 103-04. Two years before
issuing the Lar Daly decision, the FCC had interpreted § 315(a) as not applying to
routine newscasts. Allen H. Blondy, 40 F.C.C. 284, 285 (1957). When Allen Blondy ob-
jected that an opponent in a judicial election had appeared on a television news pro-

gram showing a group of judges being sworn into office, the FCC found that the oppo-
nent's picture and the newscaster's accompanying comments describing the event did

not constitute a "use" under § 315(a). The FCC held:
WWJ-TV did not "permit ... [a] legally qualified candidate for . . . public of-
fice to use a broadcasting station" by showing and referring to Mr. Daven-

port [the opponent] in its routine newscasts in the manner indicated.

Therefore, it is under no obligation to ". . . afford equal opportunity to all

other" candidates for the office for which Mr. Davenport has filed.

Id.

'^Act of Sept. 14, 1959, Pub. L. No. 86-274, 73 Stat. 557 (codified at 47 U.S.C. §

315(a) (1976)).

^*Act of Aug. 24, 1960, Pub. L. No. 86-677, 74 Stat. 554.

^Tederal Election Campaign Act of 1971, Pub. L. No. 92-255, § 103, 86 Stat. 3

(1972) (codified at 47 U.S.C. § 312(a)(7) (1976)). ,
''Id.



1979] ACCESS TO BROADCASTING 721

occurring on a bona fide news program. In addition, stations are re-
quired to charge their lowest unit rate for any broadcasting time

purchased by a candidate within forty-five days before a primary

election and sixty days before a general election.^^

B. Barriers to Equal Opportunities

There remain several barriers preventing third parties from

receiving exposure on the airwaves equal to that of the major par-

ties. Most significant is the cost of advertising, particularly on
television and in the larger broadcasting markets.^® Second is the

lack of any requirement that broadcasters donate ''sustaining" (free)

time to the views of candidates for political office. Third is the effect

of the 1959 amendments to section 315. Fourth is the Federal Elec-
tion Campaign Act of 1971, as amended in 1974 and 1976,^^ which
was upheld by the United States Supreme Court in Buckley v.
Valeo.''

1. Costs.— Minor parties face significant obstacles in their at-
tempt to acquaint the public with their analyses and programs. To-

day, television is the major source of public information about most

issues and candidates. Increased costs of political broadcasting

hinder all candidates from reaching the public but especially burden

minor parties because of their usual lack of financial resources.

The cost to all candidates for political broadcasting adver-
tisements (television and radio) rose from less than $10,000,000 in

1956 to more than $24,000,000 in 1964 and to over $40,000,000 in
1968.'*^ This increase in costs took place over a period of time during

which the total cost of campaigns only doubled*^ while, at the same

"47 U.S.C. § 315(b) (1976).

^In 1968, the cost of a one-minute spot for a political candidate on a network, in

prime time, during the fall election was almost $50,000, not including the cost of pro-
ducing the spot. Wick, The Federal Election Campaign Act of 1971 and Political
Broadcasting Reform, 22 DePaul L. Rev. 582, 584, n.lO (1973). The cost of such adver-
tisements presumably has risen sharply since that time. One of the television network
station affiliates in Indianapolis indicated its prices for political advertisements, which

were sold only in half-minute spots: a political advertisement during the 1976 campaign
cost from $20 to $70 during most of the day, $175 to $500 during a sports broadcast,
and $800 to $1200 in prime time. These figures were claimed to be competitive with
the other network affiliates in the city. Interview with Beth Sullivan of WTHR (Chan-
nel 13), in Indianapolis (July 15, 1977). For radio, advertising rates are much less ex-
pensive; for example, one of the most popular Indianapolis AM stations charged be-
tween $15 and $50 for a minute spot political advertisement during the 1976 election

campaign. Interview with Ray Cooper of WIBC (1070), in Indianapolis (July 7, 1977).
^'Federal Election Campaign Act of 1971 as amended, supra note 3.
*°424 U.S. 1 (1976).

"Freeman & Edelstein, Political Campaigning and the Airwaves, 1 Pepperdine
L. Rev. 178, 187-88 (1974).



722 INDIANA LAW REVIEW [Vol. 12:713

time, the rate of inflation increased but twenty-eight percent." The
spending restrictions of the Federal Election Campaign Act Amend-
ments of 1974 may end the continuing increase in broadcast costs,
although the law applies only to federal offices.*^

Campaign* broadcast expenditures in recent years have consum-

ed an increasing percentage of the funds spent by candidates seek-

ing office, which attests to the politicians' belief that such advertis-

ing is effective. Although there are some exceptions, there is a
strong correlation between the size of overall campaign expend-

itures and the success of candidates running for election in states

with meaningful party contests.*^

The requirement for equal treatment in broadcasting for all can-
didates does little to assure equality in fact because the real test of

a candidate's ability to achieve significant exposure to the electorate

is measured by the size of the candidate's campaign chest.''* If one

candidate for an office purchases $1,000 in advertising on a par-

ticular broadcast outlet, federal law requires only that opponents in

the same election be allowed to purchase a similar amount of broad-
cast time under the same conditions.*' If the opponents lack the
funds to purchase the broadcast time, then the requirement of equal

access has been of no benefit to them since the first candidate has
been the only one to obtain exposure to the voters through the par-

ticular station. One major party candidate commonly has far more
funds than the other major party candidate. The disparity in finan-
cial resources is usually much greater for the minor party can-
didates.

With a few exceptions, such as the Wallace campaign of 1968,
minority parties generally have limited funding. Another problem
for most minor parties is that the public is not aware of their goals
and their candidates; without the ability to receive significant

coverage by broadcasters, who refuse to provide any appreciable

"U.S. Dept. of Commerce, Historical Statistics of the United States:
Colonial Times to 1970, pt. 1, at 210 (1975). This percentage increased in the rate of

inflation is based on an 81.4 consumer price index in 1956 compared to an index of

104.2 in 1968.

"Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101,
88 Stat. 1263 (codified at 18 U.S.C. § 608 (1976)).

*'Id.

^'Inquiries at the major broadcast stations in Indianapolis revealed no time pur-

chased by any minor party candidate in the 1976 election, although minor party can-

didates appeared on the ballot in Indiana in that election year for President, Governor,

and United States Senator. Although no data were available about minor party

purchase of advertisements in previous elections, no station representative with whom
the author spoke remembered selling any time to minority party candidates in this
decade. r.

*^47 U.S.C. § 315 (1976).



1979] ACCESS TO BROADCASTING 723

amount of "sustaining" time and whose rates are often prohibitively
high, minor party candidates continue to lack public understanding

of their proposals. Although the Wallace campaign of 1968 had more
money and received more votes than any other minor party effort in
forty years, it was able to purchase far less time than the competing
major party candidates/®

2. Sustaining Time for Candidates. — The broadcasting industry
has made repeated requests to Congress to modify or entirely
repeal section 315, as their testimony before Congress in 1971

demonstrates/^ American Broadcasting Company (ABC) spokesper-
son Everett H. Erlick noted that the network had "previously sug-

gested a trial suspension of section 315 for all candidates — at every
level of government."^" He supported the suspension of section 315
for the 1972 national races, which the committee was then consider-
ing, claiming that it would "contribute significantly to alleviating

the increasingly heavy cost of running for the Presidency. Moreover,

the greater freedom and flexibility afforded the broadcaster in cam-

paign coverage would benefit the public directly ."^^

Julian Goodman of the National Broadcasting Company (NBC)
supported the proposal to suspend section 315 for national races in

1972 but also favored complete repeal of section 315:

**"[I]n January 1969, the FCC reported that the Republicans had outspent the
Democrats for television time, 5 million dollars to 3, during the 1968 Presidential cam-

paign. Other groups (referring mainly to the American Independent Party of George

Wallace) spent $681,491 on television." E. Chester, supra note 26, at 280.

*^Federal Election Campaign Act of 1971, Hearings on S. 1, S. 382 and S. 956
Before the Subcomm. on Communications of the Senate Comm. on Commerce, 92d
Cong., 1st Sess. 328-30 (1971) [hereinafter cited as 1971 Hearings]. A major revision of
the nation's communications law was proposed in the Communications Act of 1978 by
Lionel Van Deerlin, chairperson of the House Communications Subcommittee of the
Committee on Interstate and Foreign Commerce, and Lou Frey, that subcommittee's
ranking minority member. H.R. 13015, 95th Cong., 2d Sess., 124 Cong. Rec. 5128 (1978).
Although that bill did not leave the Committee in the 95th Congress, it is expected to
be seriously considered by Congress in the next few years. H.R. 13015 would greatly

alter the current equal opportunities doctrine by limiting its application only to televi-

sion broadcasts for offices other than those elected on national or statewide bases. Id.

§ 439. In addition, the proposal would remove the current requirement of 47 U.S.C. §
312(a)(7) (1976) that candidates for federal office have reasonable access to broadcasting

outlets. The Van Deerlin proposal makes no mention of the rates which broadcasters
should charge for political programs, as opposed to the current requirement that those

programs be billed at the lowest applicable rates.

Broadcasting industry officials have applauded the relaxation of the equal oppor-

tunities doctrine in the Van Deerlin proposal and have urged that its requirements be
relaxed further. The Communications Act of 1978: Hearings on H.R. 13015 Before the
Subcomm. on Communications of the House Comm. on Interstate and Foreign Com-
merce, 95th Cong., 2d Sess. 45, 166-67 (1978).

^1971 Hearings, supra note 49, at 329.



724 INDIANA LAW REVIEW [Vol. 12:713

[T]he most effective step which the Congress could take to
increase broadcast appearances of candidates would be the

repeal of the equal opportunity requirements of section 315

of the Communications Act. This would enable broadcasters

to schedule appearances of significant candidates in a varie-

ty of programs and formats without the penalty of making
equal time available to candidates of "splinter" parties; such

a penalty tends to limit the ability of broadcasters to pre-

sent candidates with whom the public is concerned and
disserves the public interest in the political process.^^

Frank Stanton of the Columbia Broadcasting System (CBS) also
supported suspension of section 315 for the 1972 national races.

Although he did not here advocate total repeal of the section, he had

previously expressed such a preference on numerous occasions.^^

The network executives have argued that section 315 prevents
them from giving major party candidates all the free time the net-
works would like to provide.^^ They have opposed, however, any pro-
posals that they be required to give free time to any candidates.

While they have advocated a total repeal of the equal opportunities

requirement, they have also supported permanent or temporary

suspension of section 315 for all national, statewide, and congres-

sional contests. In support of their position, the executives cited the

1960 Nixon-Kennedy debates,^^ which were aired free of charge to

the candidates and which were held after section 315 was temporari-
ly suspended.^® They used the debates as an example of the public
service the networks could render in the absence of the equal oppor-

tunities doctrine. The executives claimed that the debates con-
tributed significantly towards informing the voters about the two

main candidates for President but asserted that such a service

"M at 330.
^^Id. at 328. For an example of Stanton's advocacy of repeal of the section, see

Equal Time, Hearings on S. 251, S. 252, S. 1696, and H.J. Res. 2klf Before the Sub-
comm. on Communications of the Senate Comm. on Commerce, 88th Cong., 1st Sess.
220-22 (1963) [hereinafter cited as Equal Time].

^*1971 Hearings, supra note 49, at 328-30; Equal Time, supra note 53, at 220-22.
^In that year, the major party presidential candidates appeared together in a

series of programs billed as debates that were broadcast over the major radio and
television networks. Kennedy is generally credited with having made a better ap-
pearance than Nixon, although a more favorable opinion of Nixon's performance was
held by those who heard the program on the radio. T.H. White, The Making of the
President 1960, 288-91 (1961). Kennedy's appearance on the debates did make him bet-
ter known to the voters which was important for an obscure Senator against the two-
term incumbent Vice-President. Even though it is not possible to ascertain the extent
that the debates altered voting patterns, these programs are often credited as having
been a significant factor in Kennedy's narrow victory in the election. Id. at 293^94.

^Equal Time, supra note 53, at 100-01, 220, 248-49.



1979] ACCESS TO BROADCASTING 725

would not have been available had section 315 been in effect during

the 1960 election campaign. Under section 315, the networks would

have had to devote an equivalent number of program hours to minor
party candidates or perhaps been forced to include those candidates

in the debates with Kennedy and Nixon."
The actions of the networks in providing free time to candidates

in various races involving only the major parties^^ suggest that sta-

tions would not provide very much free political time if the re-
quirements of section 315 were lifted.

Under the requirements of section 315, minor parties in 1956 col-
lectively received as much free time as each of the major parties in
which to present their candidates to the public.^^ Although this com-
parison represents the combined time of all the minor parties, they
still had time for a brief presentation of their respective positions.®"

^See notes 70-71 infra and accompanying text.

^^Guback, Political Broadcasting and Public Policy, 12 J. Broadcasting 191, 196

(1968). The following table shows the amount of sustaining time provided by the televi-
sion networks to candidates and supporters in the presidential races of 1956, 1960, and

1964:

REPUBLICANS DEMOCRATS OTHER TOTAL

(Time is in hours and minutes)

1956 Time 10:43 8:25 10:30 29:38

% of total 36% 28o^ 35% 99%

1960 Time 18:21 19:26 1:35 39:22

% of total 47% 49% 4% 100%
% of change

from 1956 + 71% + 131% -85% + 33%

1964 Time 2:47 1:41 4:28

% of total 62% 38% 100%
% of change

from 1960 - 85% -91% - 89%

Id. The article also includes similar figures for the radio networks. Id. Data about com-

mercial time made available to candidates omits time bought for spot announcements
and therefore is of little value since spot announcements constitute the bulk of political

time bought by candidates. Id. at 198-99.

^''Nathan Karp of the Socialist Labor party has described the inequalities in the

implementation of § 315 regarding minor party candidates. Referring to the 1956 elec-

tion, Karp stated:

Minority party candidates do not receive free time, comparable or otherwise,

unless they specifically demand it. . . . It should also be noted that although

the major networks covered Republican and Democratic National Conven-

tions for several consecutive days in 1956, the only time that minority party



726 INDIANA LA W REVIEW [Vol. 12:713

In 1960, by contrast, the networks provided more free time to the
major parties, primarily for the *'Great Debates" between Richard
Nixon and John Kennedy, but cut the minor parties from their pro-
gramming almost entirely."

Political broadcasting has increasingly relied on paid adver-

tisements rather than on free time provided by stations. In 1962,
fewer than one-fourth of all television or radio stations devoted sus-

taining time to election campaigns, while ninety-five percent of them
sold broadcast time to candidates.*^ The increase in sustaining time
between 1962 and 1970 was modest, while the increase in the
amount of paid political time and the number of stations broad-
casting increased much more rapidly.*^ Thus, the importance of sus-
taining time had declined significantly in this period in relation to

commercial time.

The experience of the Socialist Labor party in obtaining net-
work time in 1960 is indicative of the plight of minor parties in that
year.** The Mutual Broadcasting System did broadcast the accep-
tance speeches of the party's candidates for President and Vice-

President, although many of its affiliated radio stations did not
carry the broadcast. The company claimed that there was not ''suffi-
cient interest in the campaigns [of Socialist Labor candidates] to

candidates were allowed was an amount equal to the actual acceptance

speeches by the candidates who were finally nominated by these conventions.
And even in this latter respect the minority party candidates had to accept
less— and often undesirable — time, or run the risk of spending all their time
and energies in long drawn-out struggles to receive what under the law they

were incontestably entitled to. . . . [Karp then discussed the inability of

minor parties to monitor broadcasts to discover when major party candidates
receive time or whether network broadcasts of the minority parties are be-

ing carried on most network affiliates.] Thus, while all candidates are equal

under the law, some candidates are more equal than others, to use the

Orwellian phrase.

Political Broadcasting, supra note 32, at 116.

"Guback, supra note 59, at 196-97.

®^0f those giving sustaining time, 54% of television stations and 43% of AM radio
stations gave 2 or more hours, while 1V2% of television and under 1% of radio sta-
tions gave more than 10 hours. This represented about one-seventh of the time

devoted to political broadcasting during the campaign. FCC, Survey of Political

Broadcasting — Primary and General Election Campaigns of 1962 (1963), reprinted
in Equal Time, supra note 53, at 2-14.

''The total of sustaining time for political candidates in 1962 was 50,000 minutes.

Id. By 1970, the amount had increased to 70,000 minutes. 1971 Hearings, supra note 49,

Appendix A, at 687-1004.

•*Senate Comm. on Commerce, Freedom of Communications, S. Rep. No. 994, 87th

Cong., 1st Sess., pt.5, 295-385 (1961). This report on the effect of the suspension of §

315 for the 1960 national elections was prepared pursuant to S. Res. 305, 86th Cong.,

2d Sess., 106 Cong. Rec. 12522 (1960).



1979] ACCESS TO BROADCASTING 727

warrant our granting them time comparable to that which will be af-
forded to the candidates of the Democratic and Republican

parties."*^

ABC did grant fifteen prime time minutes on its television net-
work to the presidential candidate of the Socialist Labor party, Eric
Hass.*® NBC television broadcast a half-hour program involving
several minority party candidates.^^

CBS confined its television coverage of minor parties in 1960 to
a half-hour program. Appearing on "Other Hats in the Ring" were
the candidates of the Prohibition party, American Vegetarian party,
and the American Beat Consensus. Also on the program was
veteran Socialist party campaigner Norman Thomas, who was not
running in the 1960 election.^®

In the next presidential election, minor party candidates con-

tinued to have limited access to the airwaves. One commentator
analyzed the networks' performance in 1964:

For the 1964 campaign. Congress refused to suspend the

equal time requirement for presidential and vice presidential

candidates, although the broadcasting industry strongly

favored the suspension. Seemingly as a penalty for Congres-

sional refusal, networks drastically cut sustaining time of-

fered to candidates and supporters. Not only was the time
offered less than in 1960, it was even less than in 1956. If
parties wanted network time, they could buy it. Thus, in

1964, the major parties received only 4 hours and 28 minutes

of free television network time, while all third parties received

nothing. From radio, Republicans and Democrats received
almost 21 hours during which to present their candidates

and views, while all third parties received only 30 minutes.

As far as sustaining time on radio and television networks
was concerned, third parties suffered almost a complete
blackout.*^

*^/d. at 321 (letter from Joseph Keating of Mutual to Nathan Karp of the Socialist

Labor party (Sept. 20, I960)).

'"M at 323 (letter from Mortimer Weinbach of ABC to Ben Waple of the FCC
(Sept. 27, I960)).

'Ud. at 302 (letter from Kathryn Cole of NBC to Ben Noble. Jr., of the Constitu-
tion party (Oct. 28, I960)). This letter does not mention which parties were invited to

appear.

'^Id. at 375 (CBS news release, Oct. 27, 1960). Hass had been invited but refused

to appear because of objections to the appearance of the American Beat Consensus

candidate. Id. at 374 (letter from Patrick Murphy Malin of the American Civil Liber-
ties Union to Sig Mickelson of CBS (Nov. 1, I960)).

^^Guback, supra note 59, at 197. In 1968, the networks provided a total of three

hours of free television time to national candidates. 1971 Hearings, supra note 49, at



728 INDIANA LA W REVIEW [Vol. 12:713

In many political races, the only candidates have been those
from the two major parties; consequently, the broadcasting stations
could have offered significant amounts of free time to all the can-
didates if they chose without having to offer any time to minority

parties. In 1964, twenty of the thirty-four Senate races involved only

two candidates. Only twenty-nine percent of the television stations
in those states provided free time, the same percentage as in states
with three or more senatorial candidates.^" The record in 1968 was
even more dramatic: only thirty-four percent of the stations with
two-person Senate races offered any free time, while forty-five per-

cent of stations with multi-candidate races offered free time.^^ Free

time provided by networks is proportionately much greater than
that provided by local stations.^^

One solution for meeting the problem of adequate access for can-
didates to the broadcast media would be for Congress to require sta-
tions to allocate specified amounts of free time to candidates for cer-
tain major offices. Such proposals have been frequently made but
have never been passed by Congress.'^ These proposals have ad-
vocated that broadcast stations be required to provide free time as

one prerequisite for obtaining a license to operate or for renewing

such a license. Alternatively, they have suggested that the stations

be recompensed through government subsidies or tax credits.^*
These proposals, sometimes referred to as "Voters' Time," would re-
quire that political time be offered to all candidates for specified of-

fices without charge. These proposals have differed widely in their

treatment of minor party candidates.

When Congress amended section 315(a) in 1959, it deferred ac-
tion on more far-reaching changes such as proposals for "Voters'
Time."^^ It did consider such suggestions the following year in hear-

188. It is generally agreed that there was no suspension in 1964 because President

Lyndon Johnson did not wish to debate against his opponent Senator Barry Goldwater

of Arizona, because the Democratic candidate was favored to win overwhelmingly.

Similarly, in 1968 there was no suspension because the Republicans did not want

George Wallace to participate in a debate or to be given free time equivalent to that

given to Richard Nixon and Hubert Humphrey.

^°Wick, supra note 38, at 612 n.l30.

"For example, only one of the major Indianapolis broadcast stations reported pro-

viding any sustaining time for appearances of candidates for statewide election in 1976;

none of them provided any free time to presidential candidates in that year. While

much of the emphasis on the effect of § 315 has been placed on the performance of the

networks and the problems affecting presidential candidates, the problems of lack of

access to broadcasting and an ill-informed electorate appear to be greater in regard to

local stations and statewide or local election races.

"See notes 77-81 infra and accompanying text.

'^Id.

"S. Rep. No. 1539, 86th Cong., 2d Sess. 2, reprinted in [1960] U.S. Code Cong. &

Ad. News 3252, 3253.



1979] ACCESS TO BROADCASTING 729

ings which resulted in passage of legislation to exempt the presiden-
tial and vice-presidential races from the coverage of section 315 in
that year's election/® S. 3171, sponsored by twenty-two Senators in

1960, would have required stations and networks to provide free

time to presidential candidates whose parties received at least four
percent of the vote in the previous presidential contest. Each station
would have had to provide one hour of prime time in each of the last

eight weeks of the campaign in blocks of back-to-back hour spots for
every candidate. Under this proposal, which did not emerge from
committee, only the Democratic and Republican parties would have

qualified for free air time in 1960.^^

In the following years, similar proposals for free broadcast time

for candidates were made by members of Congress and legal com-
mentators. Senator Mike Mansfield of Montana proposed giving sub-
sidies of $1,000,000 to major parties in order to enable them to pay
for broadcasting.'^ Senator Hugh Scott of Pennsylvania advocated
giving equal free time to parties gathering ten percent of the votes

in the previous election. Any party not so qualifying but appearing
on the ballot would receive a maximum of five percent of the time
allotted to a major party .'^ FCC Chairman Dean Burch suggested
that to receive free time, a party must have received at least two
percent of the votes in the last election or obtain the signatures of

one percent of the number voting in the previous election. For the
national offices, he proposed an additional requirement that the par-

ty be on the ballot in at least thirty-four states.*"

Observers proposed varying criteria regarding access of minori-

ty party candidates to free broadcast time, ranging from allowing

minor parties one-thirtieth of the time allocated to major parties to

proposals that they be granted at least half of the time given to ma-

jor parties; some even suggested the repeal of section 315, which
would have had the likely effect of denying minor parties any broad-

cast time at all in most races.®^

''Id. at 3255-57.

"S. 3171, 86th Cong., 2d Sess., 106 Cong. Reg. 5146 (1960).

"Guback, supra note 59, at 206.

"Scott, Candidate Broadcast Time: A Proposal for Section 315 of the Com-
munications Act, 56 Geo. L.J. 1037, 1047-48 (1968).

^^1971 Hearings, supra note 49, at 186 (statement of Dean Burch); Wick, supra

note 38, at 618-19.

"See generally, Barrow, The Equal Opportunities and Fairness Doctrines in

Broadcasting: Pillars in the Forum of Democracy, 37 U. CiN. L. Rev. 447 (1968);
Freeman & Edelstein, supra note 41; Geller, Political Broadcasts—A Few Short Steps
Forward, 20 Cath. U.L. Rev. 449 (1971); McGranery, Exemptions from the Section 315

Equal Time Standard: A Proposal for Presidential Elections, 24 Fed. Coms. B.J. 177
(1970-71); Singer, supra note 26; Wick, supra note 38; Note, Equal Opportunity in

Political Broadcasting: A Dying Ideal, 8 Sw. U.L. Rev. 991 (1976); 22 Cath. U.L. Rev.
177 (1972).



730 INDIANA LAW REVIEW [Vol. 12:713

It is unreasonable to base free broadcast time or campaign sub-
sidies upon the showing of the political party or the candidate in the
previous presidential or other major election. Since these minor par-

ties arose as vehicles for expressing positions of great concern at

the time, they have not endured for long. In some instances, when
the parties' issue disappeared or was adopted as the program of one
of the major parties, these minor parties died. Thus, they would

have failed to satisfy the aforementioned requirements that are based

upon performance in prior elections.
For example, the Wallace campaign of 1968 would have received

no subsidies based upon its strength in 1964 because it did not exist
four years earlier. Similarly, it would not have been reasonable to
grant funds to the American Independent party in 1972 as a result
of Wallace's performance in 1968 since in 1972 the party had few

adherents, and Wallace at the time was again a Democrat. Deter-
mination of subsidies to parties should be based on methods which
assess present rather than past strength so that minor parties

receive funds at the time of their greatest popularity.®^

All five of the minor party efforts that obtained more than

1,000,000 votes for President in this century®^ were forces of

significance for only one presidential election. While each expressed

important issues or grievances that did not disappear after its

respective campaign, each of the parties failed to endure. One
reason for their rapid rise and fall is that each party centered

around a prominent individual who led its ticket; when those in-
dividuals deserted the minor parties, those parties lost almost all of

their previous appeal to the electorate.®*

Although most legislative proposals distinguishing among can-
didates have focused on the party organization, these minor parties

in fact have not been organizationally significant except as vehicles

*^A further problem applies to independent candidates running without benefit of

a formal party's support. While this Note has focused on the problems faced by minori-

ty party candidates, the same, and perhaps greater, obstacles face independent can-

didates.

'^Progressive parties of 1912, 1924, and 1948, State Rights party of 1948, and

American Independent party of 1968 all polled over 1,000,000 votes for President. See
text accompanying notes 8-11 supra.

^FoT specific election data, see U.S. Dept. of Commerce, Historical Statistics

OF THE United States: Colonial Times to 1970, pt. 2, at 1073 (1975); U.S. Dept. of

Commerce, Statistical Abstract of the United States 1978, at 502 (1978). These
sources provide a reference to the popular vote received by the Progressive party in

the 1912, 1924, and 1948 presidential elections, by the State's Rights party in the 1948

election, and by the American Independent party in the 1968 election. Compare these
results with the performance of the same parties in the following presidential election

at which time their candidates for the prior election had either died or had deserted

the party.
,



1979] ACCESS TO BROADCASTING 731

to present their presidential candidates. All but one of these five

candidates repudiated the minor party that had nominated him by
the time of the next election.®^

Equal treatment of candidates on the ballot is one solution. For

the presidential race, candidates on the ballot in enough states to
win a victory in the electoral college would be eligible for free time

or subsidies for broadcast time in those states in which they ap-

peared on the ballot. No candidate would qualify for these benefits if
he was legally ineligible to hold the office sought. For example, a
candidate not meeting the minimum age requirement for the office
or an alien seeking the position would not be entitled to the

benefits, even if able to be placed on the ballot.

Limiting benefits to those presidential candidates who are on
the ballot in enough states to win the office does have some
drawbacks. This test does ignore the nature of the electoral college

system, penalizing a third party that had a great deal of strength in

several states or a region of the country while not appearing on the

ballot elsewhere. If this argument were deemed sufficiently strong
to permit candidates to receive free air time or subsidies whether or

not the aforementioned test was satisfied, they should be limited to
those stations serving states in which they are placed on the ballot.

Requiring that a candidate be on the ballot for the office sought

appears to be a minimum proof of the seriousness of the candidacy,
although there have been rare instances of serious races by write-in

candidates.®* Perhaps such a candidate could be allowed to meet an
alternative requirement, such as obtaining the signatures of a

specified percentage, perhaps one percent, of those who voted for
the office in the previous election."

This percentage test may be a substantial burden to write-in
candidates and their supporters, who would be forced to devote
significant time and resources to a requirement not imposed upon

major parties. This test appears to have a clearer connection to

seriousness of candidacy than does the requirement that a candidate

*^The sole exception was La Follette, who died the year following his race for the
presidency.

**J. Strom Thurmond of South Carolina won election to the United States Senate

in 1954 as a write-in candidate. U.S. Congress, Biographical Directory of the

American Congress 1774-1971, at 1817 (1971).
»ln Williams v. Rhodes, 393 U.S. 23, 33 (1968), the Supreme Court struck down a

requirement that 15% of the voters in a past election sign petitions to allow a non-
major party access to the ballot but said that it would allow a 1% standard which it
characterized as a "very low number of signatures." More recently, in Jenness v. Fort-

son, 403 U.S. 431 (1971), the Court upheld Georgia's election statute requiring can-

didates for office to obtain signatures of 5% of those eligible to vote in the last elec-
tion for the office being sought. Id. at 442. The requirement applied to independent

candidates and those nominated by any party whose candidate received under 20% of
the vote at the most recent gubernatorial or presidential election.



732 INDIANA LAW REVIEW [Vol. 12:713

for President appear on the ballots of a minimum number of states
because the latter prerequisite penalizes serious regional candidates.

3. Effects of the 1959 Amendment.— The 1959 amendment to
section 315^® was drafted so broadly that candidates can receive ex-
tensive coverage that is not subject to the requirement of equal ac-

cess to all candidates for the same office. Incumbents reap a signifi-
cant advantage since they can receive media attention merely by
carrying out the duties of office, including ceremonial duties. Much
more effort is required for a non-incumbent to do something which
will be considered newsworthy. Often, minor party candidates will

be unpopular or will not be taken seriously by broadcasters. It is

true that incumbents are often engaged in activities which are of

significant newsworthiness. These activities are properly excepted

from the coverage of section 315. Many times, however, incumbents
engage in ceremonial activities, arguably for the primary purpose of

receiving news coverage of their candidacy. These appearances
should trigger the equal opportunities requirement of section 315.

Presidential campaigning in recent years has involved much
travel by candidates so that they may appear on local news broad-
casts in several different media markets each day of the campaign.

Minor party candidates are seriously disadvantaged because they

often cannot afford the travel and related costs of such campaigning.

This disadvantage is compounded if the minor party candidate does
make an appearance, but local media do not judge it newsworthy. In
1972, when Benjamin Spock of the Peace and Freedom party was ac-
tively campaigning for the presidency, he was denied news coverage
on the television networks during the final three weeks of the cam-
paign.®^

•"•Act of Sept. 14, 1959, Pub. L. No. 86-274, 73 Stat. 557 (1959) (codified at 47

U.S.C. § 315(a) (1976)).

^''FCC Tells Spock: No Time Due, Broadcasting, Nov. 13, 1972, at 20-21. Spock
complained to the FCC and requested half an hour of free time on each of the three
networks, under the fairness doctrine. The FCC ruled against Spock on Nov. 6, 1972,
by a five to one vote. Since this decision was made so close to the election, Spock did
not appeal it to the courts. The fairness doctrine under which Spock had objected to
his lack of coverage is part of 47 U.S.C. § 315(a) (1976). The Supreme Court has
described its reach:

Formulated under the Commission's power to issue regulations consistent
with the "public interest," the doctrine imposes two affirmative respon-
sibilities on the broadcaster: coverage of issues of public importance must be

adequate and must fairly reflect differing viewpoints. See Red Lion, 395 U.S.
at 377. In fulfilling the Fairness Doctrine obligations, the broadcaster must
provide free time for the presentation of opposing views if a paid sponsor is

unavailable, . . . and must initiate programming on public issues if no one
else seeks to do so.

Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110-11 (1972).



1979] ACCESS TO BROADCASTING 733

In the 1976 presidential election, the joint appearances of Gerald

Ford and Jimmy Carter qualified as bona fide news events and,
therefore, did not trigger the equal opportunities doctrine. It is ap-

parent that this series of events was manufactured for television
broadcast and was not a bona fide news event as evidenced by the
fact that the speakers remained mute for more than twenty minutes
in the first meeting when the audio portion of the broadcast
machinery ceased working. Thus, it is obvious that they were more
interested in speaking to their national television audience than to

their live audience.®"

4. Federal Election Campaign Act of 1971.— The funding of
minor party campaigns and reform of section 315 were included in
the general issue of campaign finance reform that Congress has con-
sidered in recent years.®^ Among the bills considered by Congress in
1971 were proposals to provide substantial free time on broad-
casting stations for major candidates and permanent suspension of
section 315 for presidential and vice-presidential races.®^

One of the major advocates of campaign reform was Newton
Minow, a former FCC Commissioner, who had served as Chairman
of the Twentieth Century Fund Commission on Campaign Costs in
the Electronic Era; that private commission's proposal regarding

political broadcasting was called "Voters' Time." Under this pro-
posal, all "significant" candidates were to be granted time on all

television and radio stations simultaneously during the five weeks
prior to the general election. Major party candidates would receive

six half-hour segments, no more than two of which could be in the

®°Treating candidates' debates or the press conferences of individual candidates

as bona fide news events and thus exempt from the equal time requirement under 47

U.S.C. § 315(a)(4) (1976) resulted from an FCC order in 1975 whose validity has been
upheld. Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert denied, 429 U.S. 890 (1976),

aff'g Aspen Inst. Program on Communications and Soc'y, 55 F.C.C.2d 697, 35 Rad.
Reg. 2d (P & F) 49 (1975). The Chisholm court found appropriate the FCC interpreta-
tion of § 315:

[HJenceforth, debates between qualified political candidates initiated by non-

broadcast entities (non-studio debates) and candidates' press conferences will

be exempt from the equal time requirements of Section 315, provided they

are covered live, based upon the good faith determination of licensees that

they are "bona fide news events" worthy of presentation, and provided fur-

ther that there is no evidence of broadcaster favoritism.

538 F.2d at 351 (footnote omitted). Subsequently, the requirement of live coverage was

dropped, replaced by a requirement for rebroadcast within 24 hours of the live event

unless unusual circumstances warranted a longer delay. Delaware Broadcasting Co., 60

F.C.C.2d 1030, 38 Rad. Reg. 2d (P & F) 831 (1976).
^Trevious to the 1971 and 1974 reform acts, the major campaign regulation had

been accomplished by the Federal Corrupt Practices Act of 1925, Pub. L. No. 68-506, §
30, 43 Stat. 1053 (repealed 1972), and the Hatch Political Activity Act of 1939, Pub. L.

No. 76-252, 53 Stat. 1147 (codified in scattered sections of 5, 18 U.S.C. (1976)).
^'^1971 Hearings, supra note 49, at 152. The former goal was proposed in S. 1,

while the latter was the subject of both S. 382 and S. 956.



734 INDIANA LAW REVIEW [Vol. 12:713

same week. Other parties would receive lesser amounts of time.^^
Minow claimed that United States' campaign practices were unusual
as well as in need of reform:

The United States is the only country in the world where
political candidates purchase time to take their case to the

electorate, and I think a very serious study of the system

that is used in Great Britain and in Canada and in Germany
and in Japan and in other countries is very much in order
for this country, because I think there is a lot to be

learned.**

The Revenue Act of 1971 first introduced into federal law a
distinction among parties legally entitled to appear on ballots on the
basis of whether they were *'major," "minor," or "new."*^ These
distinctions were made to determine which parties would be entitled
to campaign funds from the public treasury and to establish the

amount of each entitlement. A Senate report in 1974 indicated a
clear intent to channel political development into the two-party

system:

[T]he Committee bill would not stimulate a proliferation of
splinter parties or independent candidates. Such a prolifera-
tion would undermine the stability provided by a strong two-
party system and could polarize voters on the basis of a

single volatile issue.

All but fringe candidates would have an incentive to

seek a major party nomination, rather than run as a minor

party candidate, so as to be eligible for the full level of

public assistance in the general election. The bill would
thereby have a cohesive effect, encouraging different fac-

tions to compete and work out coalitions within the
framework of a basic two-party system.*^

The Report claimed that the bill met the constitutional require-
ment of allowing minor parties to retain their opportunity to grow
into major parties:

^^1971 Hearings, supra note 49, at 404-06 (statement of Newton Minow).
'*Id. at 402.

»^The ReveYiue Act of 1971, Pub. L. No. 92-178, § 801, 85 Stat. 497 (now I.R.C. §
9002). Major parties are defined in this act as those which received 25% of the vote in
the previous election. Minor parties are those which received 5 to 25% of the vote in
the previous election. New parties are those which received under 5% in the previous
election or which did not exist at the time of the earlier election.

'^Senate Comm. on Rules and Administration, Federal Election Campaign Act
Amendments of 1974, S. Rep. No. 689, 93d Cong., 2d Sess. 8 (1974).



1979] ACCESS TO BROADCASTING 735

[T]he legitimate interest in preserving the benefits of two
major parties does not justify laws which would choke off
competition by other parties ....

The bill complies with this requirement. It does not pre-
vent minor parties from placing candidates on the ballot or

from organizing resources to support them. It does not

freeze the political status quo.'97

The campaign reform act*® reviewed in Buckley v. Valeo^^ con-
tained sections placing limits on contributions to and independent

expenditures for candidates, imposing limits on expenditures by can-

didates and parties, requiring reporting and disclosure of con-

tributors of funds over specified amounts to political candidates and
parties, providing for public financing of primary and general elec-

tions for President, making available public financing of political
conventions at which presidential candidates are selected, and

creating a Federal Election Commission to administer and enforce
these provisions.

In Buckley, the Supreme Court upheld the limits on contribu-
tions against attacks that they placed an unjustified burden on first

amendment freedoms^^^ and that the limits invidiously discriminated
against minor party and non-incumbent candidates in violation of the

fifth amendment.^"^ However, the Court found that the limitations on
total political expenditures by an individual in one calendar year^°^

and by a candidate out of his own funds^"^ violated the first amend-
ment.

Also attacked in Buckley was the Act's requirement of
disclosure to the Federal Elections Commission of all contributions
over ten dollars and the disclosure to the public of all contributions

over one hundred dollars. Plaintiffs maintained that these re-

quirements were overbroad in their effect on minor party cam-
paigns.^"^ The Court rejected this argument, holding that the peti-

''Id. at 9.

^'Federal Election Campaign Act of 1971 as amended, supra note 3.
««424 U.S. 1 (1976).

'""Id. at 24-29.

'"'Id. at 30-35.

'''Id. at 39-51.

'°'Id. at 51-54.

^°*The plaintiffs included Eugene McCarthy, an independent candidate for Presi-

dent in the 1976 election; James S. Buckley, a United States Senator from New York
seeking re-election that year; The Committee for A Constitutional Presidency — McCar-
thy '76, an independent political organization; several state and national political par-

ties, such as the Libertarian party, the Conservative party of New York, and the
Mississippi Republican party; numerous interested organizations, including the New
York Civil Liberties Union, Inc., the Conservative Victory Fund, and the American

Conservative Union; and an unspecified potential political contributor.



736 INDIANA LAW REVIEW [Vol. 12:713

tioners did not demonstrate sufficient injury to minor party can-

didates and minor parties to justify invalidating that section of the

law/°^

In addition, the Court found the composition of the Federal Elec-

tions Commission to be unconstitutional^"* because the provision for

members to be appointed by the leaders of Congress was thought to
violate the separation of powers clause of the United States Con-

stitution.^"^

The part of the election law most significant for minority parties

is that concerning the funding of political campaigns/"® Funding of

$2,000,000 is made available for each major party's convention,
which is the limit set for expenses allowed at the convention.^"^

Other parties are entitled to limited percentages of the major par-

ties' entitlement based on the vote in the previous national

election;"" a party not choosing its candidates at a convention would

not be entitled to any funds under this section. Had this law been in

"'%2A U.S. at 68-74. The Court indicated that the plaintiffs in Buckley failed to
show "specific evidence of past and present harassment of members (or contributors) . .

.

due to their associational ties" or that the disclosure requirements "will subject them
to threats, harassment, or reprisals from either government officials or private

parties." Id. at 74. This indicates that, while no blanket exemption from the Act's

disclosure requirements was available to minor parties and their candidates, the Court
might find that certain kinds of facts would justify waiving the disclosure re-

quirements in order to protect first amendment rights.
A recent opinion made use of this exception to the disclosure requirements.

Socialist Workers 1974 Nat'l Campaign Comm. v. Federal Election Comm'n, No.
74-1338 (D.D.C. Jan. 3, 1979). The court's judgment was that the Buckley exception to
the disclosure requirements applied. Id., slip op. at 3. The decision cited no facts to
establish that the exemption applied. Both parties agreed that the actual facts justified

suspension of enforcement of some of the disclosure requirements. Id., Stipulation of
Settlement at 2. Information about contributors and recipients of expenditures of the

Socialist Workers party will not have to be disclosed as required by the campaign
laws. Id., slip op. at 4. The party may place on all its literature and campaign adver-
tisements the following statement: "A federal court ruling allows us not to disclose the
names of contributors in order to protect their First Amendment rights." Id. The ex-
emption from disclosure requirements will last through 1984. Id. at 6.

''%24: U.S. at 109-43.

^"^Art. II, § 2, cl. 2.

'"'Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88
Stat. 1263 (codified in scattered sections of 2, 5, 18, 26, 47 U.S.C. (1976)). The author
believes that the disclosure requirements also represented significant harm to minority
parties.

'"^I.R.C. § 9008(b)(1). The figures provided under the Act are for 1976 and will in-
crease with the level of inflation in future years. The figures are dependent upon hav-
ing an adequate amount of money in the Presidential Election Campaign Fund to
satisfy all entitlements in any election year. If the funds are not adequate, first fund-

ing goes to the conventions; next it goes to the general election, and only then does

anything remaining go to primary campaigns. Id. §§ 9006(c), 9008(a), 9037(a).

""LR.C. § 9008(b)(2).



1979] ACCESS TO BROADCASTING 737

effect in 1968, George Wallace's party would have received no public

funds for its convention since the party had not been in existence

four years earlier. In 1972, when the party was a far less significant
electoral force, it would have received about $280,000 for its conven-

tion. The same formula applies to the general election, which means
that the party would have received about $2,800,000 for its general

election campaign in 1972."^

With respect to public notoriety in political campaigns,
primaries present problems for minor parties because they usually

do not hold them. Under the election law, major party candidates
receive funds for their primary election contests."^ These funds help

make major party candidates known to the electorate, while minor
party candidates are not eligible to receive similar assistance.

Similarly, under section 315 of the Communications Act, a campaign

appearance on broadcast media by a candidate in a primary would

lead to equal opportunities for other candidates only if they par-

ticipated in the same primary election. Thus, candidates in un-
contested races and candidates belonging to minor parties without

primaries do not get the opportunity to reach the electorate which

is afforded to candidates with contested primaries.

In the general election, the major parties each receive

$20,000,000."^ Minor parties receive a proportion of that amount
determined by their percentage of the vote four years earlier."* If a

minor party gathers more votes in the current election than in the
previous election, it would be entitled to additional federal funds for

the purpose of paying campaign debts."^ A further requirement for
receiving funds to be used in the general election is that a party

must be on the ballot in at least ten states."®
The public financing provisions were attacked on three grounds,

which were all rejected by the Court in Buckley}^'^ First was the
claim that the granting of funds for political campaigns exceeded the
bounds of congressional power under the "general welfare" clause of

'"These figures are based on calculations that since Wallace received 14% of the
votes cast in 1968, his party would have been entitled to 14% of the sums given to
each major party for its convention and general election expenses. See text accompa-

nying note 11 supra.

"''LR.C. §§ 9031-9042.

"«/d § 9004(a)(1).

"*/d § 9004(a)(2)(A).

"Yd § 9004(a)(3). Similarly, a party in the "new" category, one not existing four
years earlier or one having received under five percent of the votes in the previous

election, gets no funding until after the campaign and receives funds then only if its

vote total was over five percent of the votes cast for the office.

""I.R.C. § 9002(2)(B).

"M24 U.S. at 90-97.



738 INDIANA LA W REVIEW [Vol. 12:713

the United States Constitution."* Second was a claimed violation of
the first amendment, using an argument that analogized the
establishment clause, on the basis that the public financing of some
but not all political parties established the parties that did receive

funds in a preferred position. The third argument asserted that this
statutory section discriminated against candidates of non-major par-

ties and thus violated the fifth amendment due process clause.
In Williams v. Rhodes,^^^ the Supreme Court in 1968 held that

the first amendment guarantees of free speech and association were
violated when a state acted to favor established parties over other
parties, absent a compelling state interest.^^"

In Buckley, the Court did not find that the campaign law

discriminated against the non-major parties: "[T]he inability, if any,

of minor-party candidates to wage effective campaigns will derive
not from lack of public funding but from their inability to raise

private contributions."^^^ It pointed out further that minor or new
parties had an advantage over major parties in that the former

were not subject to the limitation on total expenditures which was
imposed on the latter.^^^ The Court did acknowledge the argument
that this benefit would generally be only an academic one.^^^

There is no correlation between the appeal of a candidate and
his ability to raise significant amounts of money, but there is a close
connection between the raising of funds and the ability to run an ef-
fective political campaign. It is possible to conceive of a candidate

with strong support from the poorest citizens but without other ma-

jor support. Similarly, a party whose program is opposed to
capitalism is unlikely to receive much financial backing but might
receive much electoral support.

The Court in Buckley claimed that since the past achievements
of minor parties "in furthering the development of American
democracy" had occurred without public funding, their inability in

"«Art. I, § 8, cl. 1.

"»393 U.S. 23 (1968).

''"M at 31. The Court stated:
[T]he Ohio laws before us give the two old established parties a decided ad-

vantage over any new parties struggling for existence and thus place
substantially unequal burdens on both the right to vote and the right to

associate. ... In determining whether the State has power to place such un-

equal burdens on minority groups where rights of this kind are at stake the

decisions of this Court have consistently held that "only a compelling state

interest in the regulation of a subject within the State's constitutional power

to regulate can justify limiting First Amendment freedoms."
Id. (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).

"'424 U.S. at 94-95.

'^Id. at 9.

'^'Id. n.l29.

J



1979] ACCESS TO BROADCASTING 739

the future to receive public funds should not disadvantage them.^^*

The majority held that if a party appears to have a good prospect of
receiving over five percent of the vote, it will be an acceptable loan

risk. In light of the difficulties often faced by major party can-

didates in securing loans or gifts, it is perhaps unreasonable for the

Court to assert that minor party candidates are likely to be accept-

able loan risks.

Only two Justices in Buckley argued that the law discriminated
improperly against minor parties and their candidates. Chief Justice

Burger noted: "The fact that there have been few drastic

realignments in our basic two-party structure in 200 years is no con-

stitutional justification for freezing the status quo of the present

major parties at the expense of such future political movements."^^^

Justice Rehnquist most cogently analyzed the harm done to
minority parties by the Act. He agreed with the majority that the
law may require, prior to the allotment of funds, "some preliminary
showing of a significant modicum of support."^^® He argued, however,
that the law had gone far beyond this permissible requirement by

giving a permanent and unconstitutional preference to the current
major parties.^^'

Minor parties are disadvantaged under the election statute not

only in regard to the receipt of public funds, but also by the require-

ment that all contributors of over ten dollars be listed by the par-
ties. There is a great potential for reprisals against people listed as

contributing to the Socialist Labor party, the American Independent
party, or other minor parties. The Court, however, held that such
harassment had not been shown by the plaintiffs and was merely
speculative.^^® The Court found Buckley distinguishable from

^"424 U.S. at 102.

'^'Id. at 251 (Burger, C.J., dissenting).

*^/d at 293 (Rehnquist, J., dissenting) (quoting Jenness v. Fortson, 403 U.S. 431,

442 (1971)).

^^'^Id. at 293-94. Justice Rehnquist stated:

It has enshrined the Republican and Democratic Parties in a permanently

preferred position, and has established requirements for funding minor party

and independent candidates to which the two major parties are not subject.

... I find it impossible to subscribe to the Court's reasoning that because no

third party has posed a credible threat to the two major parties in Presiden-

tial elections since 1860, Congress may by law attempt to assure that this
pattern will endure forever.

I would hold that, as to general election financing. Congress has not

merely treated the two major parties differently from minor parties and in-

dependents, but has discriminated in favor of the former in such a way as to
run afoul of the Fifth and First Amendments to the United States Constitu-
tion.

Id.

'^'Id. at 68-72.



740 INDIANA LAW REVIEW [Vol. 12:713

NAACP V. Alabama,^^^ which had struck down a state requirement
that the National Association for the Advancement of Colored Peo-

ple list all of its members with the state of Alabama. There, the

Court had found "an uncontroverted showing that on past occasions

revelation of the identity of its rank-and-file members [had] exposed

these members to economic reprisal, loss of employment, threat of

physical coercion, and other manifestations of public hostility
."^^°

Another distinction is that in NAACP, production of the member-
ship lists was not justified as essential to the purpose of the state

law under challenge, ^^^ while in Buckley listing and disclosure of

political contributors was a central means of carrying out one of the

Act's purposes, that of eliminating corruption and influence-buying

in political campaigns.'
132

IV. Conclusions and Proposals

No proposal for political broadcast reform will accommodate the
public's need to learn about diverse political viewpoints unless it

provides for free time to candidates. The right to be heard should

not be dependent upon the ability to raise money. The public's right

to be informed over the airwaves could be required as a public ser-

vice, or the government could recompense the stations and networks

directly or through tax benefits.

This reform raises important questions as to its scope. There

must be some minimal requirement that a candidate be serious,

which may be measured by the number of states in which a
presidential candidate appears on the ballot or by a requirement

that a specific percentage of voters sign a petition. Free time based

^^357 U.S. 449 (1958). The NAACP is a nonprofit membership corporation organized
under New York laws for the purpose of advancing the welfare of black citizens. It had
chartered an affiliate in Alabama that was an unincorporated association. Alabama filed
an equity claim to enjoin the NAACP from doing business in the state because of its
failure to comply with the state law requiring filing as a foreign corporation. The state
court ordered the NAACP to cease its activities in Alabama. On the state's motion,
the court ordered the production of many of petitioner's records, including its member-
ship lists. The NAACP supplied all the records sought except the lists and was ad-
judged in contempt of court for which it was fined $100,000. The United States
Supreme Court held the Alabama court order to be invalid under the first amendment
to the United States Constitution, since compelled disclosure of NAACP membership
lists would be likely to constitute an effective restraint on its members' freedom of

association. The state's interest in compelling disclosure of the membership lists was
not shown to be sufficient to overcome the constitutional objections to the production
order. Id. at 460-66.

^"'/d at 462.

"7d
*'M24 U.S. at 70.



1979] ACCESS TO BROADCASTING 741

upon performance in past elections does not measure present
political strength and significantly hinders minor parties.

With the growth of cable television increasing massively the
number of broadcast stations, providing free time to all candidates
may prove to be a lesser burden to broadcasters in the long run
than it would be now. An increase in the number of stations would
mean that the amount of free time required of each would be reduc-
ed proportionately. In addition, since cable systems have so many
channels, dozens of other programs would be available to viewers at
any time while political broadcasts were being made by all can-
didates for major national and state offices. An electorate should
have the right to be informed. At the same time, it should not be
forced to watch political programs. Thus, there is no reason to have

the politicians' statements broadcast simultaneously on all channels

as proposed by the Twentieth Century Fund.^^^ Although surely

fewer people will watch political broadcasts when there are alter-
native commercial programs available, all the people would have the

opportunity, at least, to view the candidates' presentations.

There are dangers of unfair treatment once government at-
tempts to decide which of the various candidates entitled to appear

on the ballot are "significant" or "major" ones. The test applied will
usually allow the Democrats and Republicans to be so classified but
will likely discriminate against other parties and candidates. If any

restrictions are placed upon minor party access to broadcasting,
these restrictions should be drawn as narrowly as possible. If minor
parties are to receive less time than major parties, they should still

receive a significant percentage of that allowed to the major parties,

such as fifty percent; proposals that they receive three or five per-

cent are not much better than ones barring them from the airwaves.
Another measure to increase minor party access to broadcasting

would be to revise the section 315 news program exception or at
least to construe it more narrowly. At a minimum, such bogus news
programs as the Carter-Ford meetings in 1976 should not be allowed

without comparable time being provided to other candidates.

If reliance is to be placed on the fairness doctrine^^* to assure

balance in the presentation of political candidates on news pro-
grams, that doctrine needs to be applied more strictly so that the
situation involving Benjamin Spock in 1972 will not be repeated. The
basic section 315 requirement of equal opportunities must be retained
to prevent a single candidate from monopolizing the airwaves and to

protect mihor party candidates. This requirement should not pre-

133TWENTIETH Century Fund Commission on Campaign Costs in the Election
Era, Report 23, 52 (1969).

^^See note 89 supra.



742 INDIANA LAW REVIEW [Vol. 12:713

vent debates among candidates. As long as free broadcast time is
made available to all candidates to use as they wish, nothing should
hinder two or more candidates from pooling their broadcast time to
appear together on one program. A proper interpretation of section
315 in 1976 should have considered the Carter-Ford meetings as

"uses" under section 315, thereby requiring the television networks

to provide equal opportunities for other presidential candidates to

reach the electorate over the airwaves.

Some proposals for equalizing the ability of candidates to reach
the public would not accord with the mandate of the first amend-
ment. Among these would be restricting the lengths of campaigns,
prohibiting candidates from using political broadcast time other

than that which is provided free of charge to all candidates, requir-

ing that all expenditures supporting a candidate be included within

that candidate's spending ceiling, and curbing the amount which
wealthy persons could spend to further their own candidacies.^^^

In addition to requiring free broadcast time for all candidates

for specified offices, similar across-the-board treatment could be

given to candidates with respect to other kinds of campaign ex-

penses in order to assure that all of them have at least a minimally
equivalent access to the electorate. Perhaps the printing and mailing

costs of one free brochure to all voters could be subsidized by the

government on behalf of each candidate in those states where he ap-
pears on the ballot.

It should not be surprising that Congress and the Supreme
Court have acted in a way that will enshrine the current two major
parties in preferred positions from which it will be difficult for

others to dislodge them. Minor parties in this century have been of
fleeting importance politically and have often represented unpopular

causes. The experience and orientation of those in Congress and on
the Court have been toward a two-party system. Despite their pro-

testations that they are not trying to restrict third parties, they

tend to view a two-party system as proper and inevitable in

American political life. Even if these perceptions are accurate as to
the future course of our politics, there are two flaws in their reason-
ing. Even if the country continues with a two-party system, nothing
should be done to assure that the current major parties be the ones

to survive. Secondly, the Constitution, which does not mention par-

ties at all, should not be read as allowing discriminatory treatment

against third parties and independents.

The key, then, to allowing minor party access to the electorate
is to require free broadcasting time for all candidates for certain of-

fices. Fund-raising ability should not determine a party's ability to

^^'^424 U.S. at 17-23, 51-59.



1979] ACCESS TO BROADCASTING 743

reach the public, nor should public funds increase the disparity be-

tween major and minor parties. If distinctions are made among par-
ties regarding access to broadcasting and to the public treasury,

those distinctions should be narrowly drawn so as to avoid being
unreasonably discriminatory. While the burden imposed by these

proposals on television and radio stations is not as severe as their

owners maintain, the size of the burden is likely to be lessened con-

siderably by the extension of cable systems throughout the nation.

Together, these proposals would increase the public's opportunity to

be informed about all parties and candidates so that the people

could then make their own, and hence the best, decisions.

Alan Raphael