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Federal Support and Public Broadcasting: Not Quite What LBJ FEDERAL SUPPORT OF PUBLIC BROADCASTING: NOT QUITE WHAT LBJ HAD IN MIND By Chris Johnson On November 7, 1967, President Lyndon B. stated that the Corporation would get "part of its Johnson signed the Public Broadcasting Act1 into support from the government" but "be carefully law and established the Corporation for Public guarded from government or party control," "be Broadcasting ("CPB"), a nonprofit corporation free and independent," and belong "to all the 9 responsible for distributing the annual federal ap- [American] people." propriation for public broadcasting. 2 Senator However, recent developments demonstrate Claiborne Pell touted the newly enacted legisla- that public broadcasting has found itself suc- tion and the corporation it established as placing cumbing to political party control, calling into "the voice of the American people in a productive question whether public broadcasting is com- 3 relationship to the great medium of television." pletely free and independent and whether it be- Congress declared in the Act itself that "it furthers longs to all the American people. The public is the general welfare to encourage public telecom- left wondering whether public broadcasting is 1 munications services which will be responsive to truly an expression of diversity." For example, in the interests of people both in particular localities a hearing before the House Commerce Commit- and throughout the United States, which will con- tee's Subcommittee on Telecommunications in ' 4 stitute an expression of diversity and excellence." July 1999, Subcommittee Chairman William In signing the bill, President Johnson remarked Tauzin (R-La.) revealed that a rather significant that the Act's purpose was to "enrich man's number of public broadcasting stations had spirit"5 and "give a wider and stronger voice to ed- rented donor lists to the Clinton-Gore election ucational radio and television by providing new campaign, violating a federal tax law that prevents funds for broadcast facilities."' 6 Furthermore, Pres- nonprofit groups from participating in political ident Johnson announced his enthusiasm for activities. 11 CPB subsequently conducted a survey CPB, describing it as an institution that would "as- of the 75 largest public television stations and sist stations and broadcasters who aim for the best found that more than one-third had exchanged in broadcasting: good music, exciting plays, re- member or donor lists with political groups and ports on the whole fascinating range of human ac- roughly more than forty percent rented lists from 1 2 tivity."7 Johnson predicted that public broadcast- political groups. ing would "try to prove that what educates can Public Broadcasting System ("PBS") President also be exciting."8 More importantly, Johnson also Ervin Duggan resigned less than two months after I See, e.g., Paul Farhi, WETA's PoliticalName-Swapping; Ex- I Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 0 Stat. 365 (codified as amended at 47 U.S.C. § 396 (1994 & change of Donor Lists with Democrats Angers GOP, WASH. POST, Supp. IV 1998)). July 16, 1999, at Cl; Paul Farhi, WETA to Drop Political Lists, 2 47 U.S.C. § 396(k)(3)(A)(i)-(iv) (setting out the re- WASH. POST, July 17, 1999, at Cl; Public BroadcastingStupidity, quirements for how the annual appropriation for the Corpo- WASH. POST, July 20, 1999, at A18; Swapping of Donor Lists by ration for Public Broadcasting is to be distributed). Public TV Decried, WASH. POST, July 21, 1999, at A4; George F. 3 113 CONG. REc. 31587 (1967). Will, Who Needs Public Broadcasting?, WASH. POST, Aug. 1, 4 47 U.S.C. § 396(a)(5). 1999, at B7; TV Column, WASH. POST, Aug. 2, 1999, at C7. 5 113 CONG. REc. 31587. I' See PBS Stations Rented Clinton Donor Lists, WASH. POST, 6 Id. July 31, 1999, at C7. CPB Bans List Dealings with Politicos, 7 Id. 12 See Steve Behrens, 8 Id. CURRENT, Aug. 2, 1999, at 1, 10 & 19. 9 Id. COMMLAW CONSPECTUS [Vol. 8 the list-swapping scandal broke. Although other when he signed the Public Broadcasting Act into factors may have contributed to his resignation, law over thirty years ago. This comment proposes Duggan likely was embarrassed after he explained that public broadcasting is currently subject to to Congress that thirty public stations had shared government and party control. First, this com- their membership lists with political groups.1" ment will discuss the history behind the passage of Conservative critics of public broadcasting con- the Public Broadcasting Act of 1967 ("1967 Act") demned the list-swapping practices as further evi- and the creation of the Corporation for Public dence of public broadcasting's liberal bias. 14 Fur- Broadcasting ("CPB"). Next, through the descrip- ther concern over the matter in Congress tion and evaluation of past and recent events in prompted the proposal of a bill known as the Pub- Parts II and III, this comment will show that fed- lic Broadcasting Donor Privacy Act of 1999,15 eral support for public radio and television has designed to prevent public broadcasting stations not had the effect that President Johnson or the from sharing their donor lists with any other or- 90th Congress intended and will demonstrate that ganization. The bill proposes to deny funding or federal support for public broadcasting has in fact assistance from CPB to any public broadcast sta- produced undesirable side effects contrary to the tion that "may make available any list, in whole or policies underlying the 1967 Act. Additionally, in part, of the financial contributors to such sta- Parts II and III will assert that public broadcasting tion to any person or other entity."'16 is currently a product of government control and CPB President Bob Coonrod reacted to Con- is subject to numerous political interests. gress's concerns by introducing a resolution ad- Part IV will argue that continued federal sup- dressing the issue, which the CPB Board of Direc- port for public broadcasting is constitutionally un- tors passed unanimously. 17 The resolution sound under the First Amendment and the con- required all stations receiving a CPB grant to flicting Supreme Court decisions thereunder. Part maintain active control and complete records of V will discuss the executive branch's controls and all uses of their membership and donor lists; offer censorship pressures, linked to the annual appro- all donors a means to have their names sup- priation, exerted on public broadcasting. Part VI pressed from their lists; not sell or release donor will examine the American public's reaction to names to any candidate for public office, political and support for public broadcasting. Part VII will parties or organizations supporting a candidate, propose alternative methods for phasing out the and certify compliance in regards to their tax-ex- annual federal appropriation and determine empt status, political activity and lobbying.' In whether these methods present recurring legal addition, Coonrod sent an open memo to all pub- and constitutional issues or instead better achieve lic radio and television station managers urging a goal of adequately financed, noncommercial them to ensure that their stations do not trade broadcasting benefiting all the American people. member and donor lists with political parties in Furthermore, this comment will argue that pub- the interests of respecting the privacy concerns of lic broadcasting has lost sight of the mission the members and donors."1 Johnson Administration originally intended for it. It is clear that the public broadcasting of today As a result, public broadcasting no longer con- is not quite what President Johnson had in mind forms to constitutional standards of accountabil- 1'3 See Lisa de Moraes, PBS Executive Ervin Duggan Finds an 16 Public Broadcasting Donor Privacy Act, H.R. 2791, Open Door Out, WASH. POST, Sept. 10, 1999, at Cl. The Public 106th Cong. (1999). Broadcasting System ("PBS") is a private, nonprofit organiza- 17 See CPB Announces New Guidelines to Protect Privacy of tion that distributes television programming to the member Public Broadcasting Contributors: Stations Not Allowed to Share stations. It receives no direct government appropriations, Lists with Political Campaigns or Committees, Corp. for Pub. although it does receive substantial grants every year from Broadcasting press release, July 30, 1999 [hereinafter CPB CPB. See CORPORArION FOR PUBLIC BROADCASTING, 1998 AN- Press Release]. CPB press releases and memoranda can be NUAL REPORr 7, 28, 43, 46, 55, 58 (1999) [hereinafter CPB found at its web page archives. See Corporation for Public ANNUAL REPORT]. Broadcasting (visited Jan. 24, 1999) <www.cpb.orgatwork/ 14 See Moraes, supra note 13, at Cl. media>. 15 Public Broadcasting Donor Privacy Act, H.R. 2791, IS See CPB Press Release, supra note 17. 106th Cong. (1999). This bill is currently being debated in 19 See Memorandum from Bob Coonrod, President & House subcommittee. Up-to-date status of the bill can be CEO, Corporation for Public Broadcasting, to Public Radio found on the Library of Congress's Thomas website, and Television Station General Managers (July 28, 1999). <thomas.loc.gov>. 20001 Not Quite What LBJ Had in Mind ity, it is not in alignment with First Amendment Under the Johnson Administration, Congress rights and it has not generated a favorable re- created a task force on educational television, sponse from the American public. This comment known as the Carnegie Commission on Public will conclude that, given these circumstances, Television ("the Commission").2 6 The Commis- there is little justification for direct annual federal sion recommended a better-financed and di- subsidies for public broadcasting. Federal support rected educational television system than in exist- of public broadcasting has produced results that ence in the United States at the time.2 7 In reflect neither the intent of the 90th Congress, addition, the Commission recommended replac- which drafted the bill, nor the Johnson Adminis- ing the term "educational television" with "public 2 0 28 tration, which signed it into law.
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