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The Ombudsman Column

Challenging Congress: Lobbying Violation or Free Speech?

This has been a winter of considerable discontent for public broadcasting.

The Republican-controlled House of Representatives has already voted, on Feb. 19, to strip all of the $430 million in the Fiscal Year 2011 budget for the Corporation for Public Broadcasting, the umbrella organization that distributes congressionally-appropriated funds to several hundred public radio and television stations around the country. The Democratic-controlled Senate and the White House are certain to push back, so the final outcome is not clear. But the threat of greatly diminished or even completely prohibited future government support is very real.

Meanwhile, the top management of NPR, nee National Public Radio, in recent days and months has also delivered a series of egregious, self-inflicted wounds that not only helped feed the political push, mostly from conservatives, to cut funding from all of public broadcasting, including the PBS television service, but also unfairly damaged the reputation of one of the nation's best and most important news-gathering organizations at NPR.

The irony of NPR's latest management screw-up is that the reporting of the episode cast a shadow over NPR while the press has paid relatively little attention to the political activists and actors who lied about their identities.

At PBS, about 15 percent of the total annual revenue comes from CPB funds that go primarily to PBS-member stations around the country. Many of these are small stations and the CPB funds make up a larger percentage, sometimes 40-50 percent, of their available funds. The rest of the PBS annual revenue comes from corporate sponsorships, grants and foundations, and individual contributions to local stations "from viewers like you."

Using Your Airway to Defend Yourself

In the face of the serious threat to cut-off all government funding, many PBS and NPR stations around the country, and the parent organizations, have been attempting to rally their viewers, listeners and supporters on the air and online to challenge the proposed congressional cutbacks by various means. This tactic, in turn, has led some other viewers and PBS critics to write to me and ask, as this person in St. Paul, Minn., did on March 2: "How is it that PBS is using the public airways to advocate a political position . . . regarding proposed cuts to the funding of PBS . . . without violating campaign finance laws or laws regarding equal time for opposing views?"

A front-page article in The Washington Times on March 8 raised a variation of this question applied to NPR and PBS stations, reporting that "some affiliates' pleas may violate laws preventing nonprofits or government-funded groups from lobbying." The article said, more specifically, that some "lawmakers and conservative critics argue the stations are breaking two laws, one that prohibits using taxpayer-funded grants to petition Congress for more taxpayer money and the other that bans nonprofits from doing much lobbying of any kind."

Public broadcasting has always been a special breed since it was founded by Congress more than 40 years ago. It is different, intentionally, from commercial broadcasting and has always been based upon a different, commercial-free funding model that includes corporate sponsorships, donations by individuals and organizations, and some relatively small percentage of government support via the CPB. There have been numerous attempts since its founding to wipe it out through ending the CPB contribution. None have succeeded thus far.

There is no doubt that PBS and NPR contribute greatly to the unique fare available to viewers and listeners, programs that are not likely to be available elsewhere on television or radio. But times and circumstances change.

The BBC and CBC Do It With Help

On one hand, there is a legitimate argument that some critics make that news-gathering operations, in particular, are best without any government support; it's an argument that is more focused on NPR than PBS because the radio network is a genuine news organization posting hundreds of correspondents around the country and the world, whereas PBS is essentially a distribution service with a flagship national news program, the PBS NewsHour, that is produced at a local station outside Washington, WETA.

Indeed, even at the founding of public broadcasting there were arguments about the wisdom of providing even some government support.

On the other hand, PBS and NPR have both operated with this dose of taxpayer support for decades and both are generally and rather widely respected for solid, in-depth and straight-forward factual reporting that goes well beyond, in many cases, what is available on commercial networks.

Ralph Engelman, chairman of the journalism department at Long Island University and author of the authoritative political history "Public Radio and Television in America," points out that elsewhere in the world news organizations that are entirely government and taxpayer-supported such as Britain's BBC and Canada's CBC, for example, maintain highly professional news operations. So why, he asks, "is a commercial system more pure than something that has some government funding?" And why, since the private sector has a free-hand for lobbying, he asks, should public broadcasting, which is not a government news operation, be excluded?

Engelman says this debate is really about ideology, not money, and he would "love to see a balanced, in-depth treatment of this issue, with all sides being discussed," on radio and television. "It's really what public broadcasting is there for."

I must say that when I first started to see the effort in February to rally support against congressional cuts on various PBS-member stations and online at pbs.org, including this message from PBS CEO Paula Kerger, it made me wonder what is legal and proper for a public broadcasting service using its own air time in self-defense against would-be congressional cuts.


Watch the full episode. See more PBS Presents.


PBS Responds

I sent the message from the viewer in St. Paul, cited above, to PBS and here, in part, is the response from Jan McNamara, senior director for Corporate Communications:

"The American public has a stake in PBS and cares deeply about the services they receive from their local stations. Some member stations are choosing to use on-air messages to inform their viewers about the possible elimination of federal support and how defunding will affect the services that stations are able to provide.

The obligations mentioned by [the viewer] regarding campaign finance laws and equal time requirements are not applicable to situations such as this in which efforts are being made to raise public awareness about the attempt to defund public media. In a 2007 inquiry on the subject, the Inspector General of the Corporation for Public Broadcasting affirmed that '[Public broadcasting stations] . . . have the constitutional right to share their concerns and opinions concerning matters being considered in legislation with their Representatives and Senators.' The key issue is whether federal funds are used to conduct the grass roots outreach to viewers described above, which would be prohibited by law. Stations are mindful of this and do not use any federal funds in connection with these grass roots efforts. We believe those voters who support public broadcasting have the right to have their voices heard in this important national discussion."

Other Voices

As far as I can tell, no FCC rules are implicated in this situation. I also checked with Andrew J. Schwartzman — the president and CEO of the non-profit, public-interest Media Access Project and a well-known authority on media law — about the PBS member-stations' on-air campaign.

He said the applicable standard is the 1984 U.S. Supreme Court ruling in a case involving the FCC and the League of Women Voters of California. The bottom line in that case, he explained, is that the Court ruled, 5 to 4, that a provision of the 1967 Public Broadcasting Act that forbids any noncommercial station to "engage in editorializing" violates First Amendment rights and is therefore unconstitutional. In the PBS system, it's the individual member stations that hold the broadcast licenses, not PBS, and it's the stations that are responsible to the FCC.

Officials at a number of PBS-member stations, some of whom I have talked with and some of whom are quoted in The Washington Times, say they are also very careful to tell people just to express their views, let their voices be heard, rather than telling them what to say. I find that part of the PBS explanation to be a stretch. What comes across to me is that PBS and some of the stations are urging their supporters to press their representatives and make the case for PBS. Conservative blogger Tim Graham provides an example of this.

The video message from PBS CEO Kerger is presented as a thank you to all those who have voiced support. But in so doing, it makes the point that "if PBS station funding is eliminated, it is our children who will feel the greatest loss." It says that "America needs PBS and now PBS needs you" and tells you where to go to "learn more about the threat to PBS stations . . . and to find out what you can do to ensure that the programs you love will always be there."

Here's a Sampling of the Letters

How is it that PBS is using the public airways to advocate a political position (all the ads, messages and announcement regarding proposed cuts to the funding of PBS, particularly offensive, one aimed at kids) without violating campaign finance laws or laws regarding equal time for opposing views? Of course if I wait around for PBS to provide time for an opposing view to its normal programing of East Coast dinner-party-liberalism, I'll be waiting a long time.

Saint Paul, MN

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A deluge of recent advertisements on KQED TV urge viewers to advocate against proposed budget cuts for public broadcasting. The premise of the ads is that federal financing is crucial to current operations; i.e. that KQED is, directly or indirectly, significantly benefited by the funds — federal funds — proposed to be cut. The federal Anti-Lobbying Act. 18 U.S.C. § 1913 provides that "No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose by vote or otherwise, any legislation, law, ratification, policy, or appropriation, whether before or after the introduction of any bill, measure or resolution proposing such legislation, law, ratification, policy or appropriation." What am I missing? This advertising appears blatantly illegal. Apart from that, it seems to me, at least, to represent an unethical misuse of taxpayer money by those who run the stations, to buy a continued flow of taxpayer money to those who run the stations. Does the response lie in creative bookkeeping, along the lines of "the federal money only goes to PBS and we're KQED" even though subsidy of PBS reduces KQED's costs? This seems to me to be a topic worthy of a substantial response from management. Thanks for reading this rant.

Peter Bassing, San Rafael, CA

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I have become aware of the Congressional decision to no longer fund Public Television through Jon Abbott's TV campaign to get the Senate to reverse the House decision. This made me aware for the first time of the fact that government provides funding to PBS. 1) I believe it is a gap in your integrity to state on each program the fact that government is paying for PBS. Often what government pays for, government influences. This gives me pause regarding the integrity of PBS. 2) I believe that we desperately need a smaller government to reduce our debt and to return to the role of federal government as described in the constitution. I think if government reduces its roll, and thereby the taxes it needs to function, people will have more money to invest in PBS. This is an issue that should be discussed with the membership.

Norm Young, Windham, NH

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Suddenly on a "non-commercial" station I am inundated with political ads: Congress has passed a bill ending funding for PBS. Tell Congress how you "feel." You want everyone to protest. I guess when it's YOUR funding, it isn't commercial. Well, I have let my representatives know how I "feel" about this. I am wholeheartedly in favor of ending ALL taxpayer funding of public television, public radio, public any mass medium.

Bethesda, MD