Presidential hopeful Donald Trump this weekend is poised to do for the Republicans what Hillary Clinton has done for the Democrats: trigger the “equal time” doctrine with an appearance on “Saturday Night Live.”
Attorneys for NBC have updated the company’s Federal Communications Commission filings to note that Mrs. Clinton’s Oct. 3 appearance on “SNL” for 3 minutes and 12 seconds allows her primary opponents to demand equal airtime on the network. The doctrine, known as Section 315(a), does not compel broadcast stations to cover political candidates, but once a candidate appears on the air, stations are required to offer the same treatment to any rival who requests it.
The Radio Act of 1927 created the equal-time doctrine when airtime was a scarce commodity, so important for electoral success that federal regulation was deemed the only way to protect the public interest.
Lawmakers’ intention was to foster debate. But in practice the doctrine often has the opposite effect. In 1952, for example, the criteria to qualify under the equal-time doctrine were so broad that they covered presidential candidates from 16 minor political parties. That meant stations could not give time to Democrats or Republicans without potentially providing the same amount of time to candidates from the Socialist Party or the Prohibition Party. As a result, broadcasters shied away from political candidates.
Congress noticed, and by 1959 it had adopted exceptions to the doctrine. Among them, “bona fide news” broadcasts or documentaries wouldn’t trigger equal-time obligations.
At first the FCC maintained that political debates would still trigger equal-time requirements. To ensure that the Nixon-Kennedy debates could be broadcast without worry that stations would be forced to trot out every also-ran, Congress temporarily suspended the doctrine in 1960. The FCC would later “revise” its equal-time interpretation and conclude that political debates were “bona fide news events.”
Over the years the FCC has continued to broaden exceptions to allow political candidates more leeway. Candidate appearances on “The Tonight Show” starring Johnny Carson or “The Late Show” with Stephen Colbert have also been categorized as bona fide news events.
Now the biggest issue may be technological. Thanks to new content-distribution methods—cable, satellite and the Internet—the once “scarce” resource of broadcast airtime has given way to an endless array of opportunities.
Holding a small number of broadcast stations and cable and satellite operators to a century-old standard makes little sense. Given the few situations that now trigger the equal-time doctrine, the explosion in available media outlets, and the government’s strained interpretations of the rule, it is hard to imagine how the doctrine yields more speech than it chills.
In addition, election oversight is now performed by the Federal Election Commission, created in 1975. The FEC enforces limits on political contributions, along with disclosures of campaign spending, including on television and radio broadcasts. Almost every American has heard candidates speed-read disclaimers on TV ads, for instance.
The FEC also regularly examines whether media companies unfairly provide coverage to favored candidates, a service which could amount to a financial contribution. The FEC has a broad “media exemption” that allows programs about political candidates.
Should the FEC decide that a political appearance on a broadcast station doesn’tmeet its standards, it could deem the appearance a campaign contribution, or a campaign expenditure. That would trigger contribution limits, disclosure requirements and possible fines. The FEC could do this without conscripting broadcast stations in an equal-time scheme.
Stations should be allowed to air comedy sketches without fear of handing over their airways to any political candidate who asks.
Ms. Boliek, a visiting fellow at the American Enterprise Institute, and Mr. Muller are associate professors of law at Pepperdine University.