The Hill
Wednesday, May 13, 1998
Ross Perot: Here's the deal
By Stuart N. Brotman

What do you get when you combine ideas about presidential debates advocated by Ross Perot and Ron Paul, the Libertarian Party's presidential nominee in 1988, now a congressman from Texas?
The not unlikely scenario of candidate Howard Stern arriving at the next presidential debate, gleefully waving his federal campaign check in hand as the price of admission.
Simply put, the Perot-Paul proposal, embodied in a bill Paul introduced recently in the House, would force radio and television stations to set up a broadcast debate podium from any candidate that qualified for federal campaign money. It is an idea that would tie debate status to federal campaign spending -- and should receive a quick thumbs down from Congress.
Instead, Congress should suspend the equal time law as it did in 1960, making possible the historical Nixon-Kennedy debates. By suspending the equal-time requirement, Congress made it easier for broadcasters to offer candidates free time on the airwaves.
The current law governing broadcast debates, Section 315(a) of the Communications Act of 1934, requires a broadcaster to offer precisely equal opportunities to all legally qualified candidates for a given public office - federal, state or local - if it permits any candidates for such office as a use of the station. As a general rule, any use, however slight, of broadcast facilities by a legally qualified candidate imposes this equal opportunity obligation on broadcasters.
Despite the severity of this rule, there are exceptions. Equal air time does not have to be offered, for example, when a candidate appears in a newscast, interview, news documentary, or if the candidate's appearance is incidental to the subject of the broadcast.
For many years the Federal Communications Commission (FCC) ruled that televised candidate debates did not fit any of these exemptions and thus were subject to the equal-time requirement. Faced with the possibility of dozens of minor party candidates demanding equal air time, broadcasters shied away from controversy and lost revenues by closing the door on any type of debate.
To its credit, the FCC reversed its course in 1975, indicating that the news event exemption would be extended to encompass live debates between qualified political candidates initiated by non-broadcast entitied, such as League of Women Voters. And in recent years, the FCC has gone even further by ruling that broadcasters themselves could produce candidate debates in their own studios, and even air them on tape within 24 hours after the debate took place.
But as the law now stands, even the boldest television network would think twice about letting the government require that particular debate participants appear. Why? Because broadcasters would run the risk of the FCC ruling the the debate is not a bona fide news event, given that no independent journalistic determination was involved. This means that presidental debates would likely fall outside the exemptions and back into the electronic quicksand of equal time.
The Perot-Paul idea fails to confront this reality. By mandating that certain candidates appear solely by virtual of receiving federal funding, the independent editorial discretion of broadcasters - which is the legal foundation permiting any broadcast debates - would be subsumed by an act of government fiat. Under these circumstances, it is likely that broadcasters would revert back to square one - namely, declining to air any presidental debates due to a multiplicity of candidates that would make the format too unwieldly.