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6 CommLaw Conspectus 173 (1998)
Are Politicians a Protected Class: The Constitutionality of Reasonable Access Media Rights under the Communications Act

handle is hein.journals/cconsp6 and id is 179 raw text is: ARE POLITICIANS A PROTECTED CLASS?: THE CONSTITUTIONALITY OF 'REASONABLE ACCESS' MEDIA RIGHTS UNDER THE COMMUNICATIONS ACT. Matthew W. Daus* To most Americans, politicians do not qualify as a protected class. However, due to the constituen- cies they represent, the candidates' rights may have an impact on voters' rights. In our media saturated society, the ability of a candidate for public office to obtain television or radio access is often crucial to a campaign's success. Further- more, a candidate's ability to deliver a message to American voters through the broadcast media plays a critical role in the preservation of a free and democratic society. Section 312(a) (7) of the Communications Act' guarantees candidates for federal elected office the right of reasonable access to the broadcast media. While the federal election law reform was well intentioned, Congressional exclusion of state and local candidates to reasonable access re- mains a mystery. Although twenty-five years have passed since the passage of Section 312(a) (7), it is not untimely to pose a constitutional inquiry- namely, does the distinction drawn between fed- eral and non-federal candidates under the rea- sonable access rule violate the Equal Protection Clause of the Constitution?2 This query is the subject of this article. Now is the time to reconsider the Constitu- tional ramifications drawn between federal and non-federal political broadcasting. Campaign fi- nance reform is currently underway and sister provisions of the Communications Act are pro- * Matthew W. Daus is Deputy Commissioner for Legal Affairs and General Counsel at the New York City Taxi & Limousine Commission. The views expressed in this article are exclusively those of the author in his private capacity and do not in any way represent the official views of the City of New York. 1 47 U.S.C. § 312(a) (7) (1994). 2 Although there is no explicit Equal Protection Clause in the United States Constitution which applies directly to the actions of the Federal government, the Due Process posed for amendment. In the United States Sen- ate, for instance, campaign finance reform legisla- tion was introduced in January 1997 by, inter alia, Senators McCain and Feingold. This legislation was placed on the Senate calendar in September 1997.3 A portion of the proposed legislation seeks to amend Section 315 of the Communications Act of 1934,4 which would grant candidates to the United States Senate thirty minutes of free broad- casting time.5 Although this proposed amend- ment does not address the reasonable access provisions of Section 312(a) (7) of the Communi- cations Act, the underlying issue of media access is addressed with respect only to United States Senate candidates. Therefore, as related changes may take place during an upcoming Congres- sional term, it is timely to raise the Constitutional issues presented herein. Section I of this article describes the reason- able access requirement for federal candidates under Section 312(a) (7) of the Communications Act, as interpreted by the courts and the Federal Communications Commission (FCC). Section II examines the case law progression applicable to voter and candidate rights under the Equal Pro- tection Clause of the Fourteenth Amendment of the United States Constitution, and identifies the appropriate standard of constitutional review. Section III analyzes the constitutionality of the reasonable access rule's exclusive applicability Clause of the Fifth Amendment has been held to incorporate an Equal Protection component which is identical to the standards that apply to state action under the Equal Protec- tion Clause of the Fourteenth Amendment. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n.2 (1975); Buckley v. Valeo, 424 U.S. 1, 93 (1976); United States v. Paradise, 480 U.S. 149, 166, n.16 (1987). 3 See S. 25, 105th Cong. (1997). 4 47 U.S.C. § 315 (1994). 5 See S. 25, 105th Cong. § 102 (1997). 173

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