One of the great contributions of Justice Antonin Scalia to American law was the rejection of so-called legislative history as an untrustworthy guide to congressional intent, and Monday’s column by former Representative Tom Delay is a good example of why.
Writing more than two decades after the law at issue, the byzantine Consolidated Appropriations Act of 2004, was adopted, Delay relays his memory of one particular provision in the hopes of guiding the Federal Communications Commission to his preferred outcome on a forthcoming vote on the national television ownership rule.
That regulation, which handicaps local broadcasters in their economic competition with Big Tech and cable, prevents a single company from owning multiple stations that collectively reach more than a specified percentage of the American population. The percentage has fluctuated over time — in 2004, Congress directed the FCC to amend its rules to set the number at 39%, the provision Delay describes.
As is obvious, Netflix and Amazon suffer no such artificial limit on their reach. They can sell their streaming services to 100% of American households, which makes them heavyweights when bidding to put more nationally broadcast sporting events behind paywalls, when a television station owner can never reach less than half as many homes.
These cartels want to keep their competition limited by law, and so they’re resurrecting has-been congressmen in support of their version of the legislative history. Friends of reforming the rules could just as easily point to an op-ed by three former chairmen of the House Energy & Commerce Committee supporting the FCC’s modification of the rule. They could further highlight statements by the current committee chairman and the telecom subcommittee chairman calling for the FCC to loosen the rule.
But that simply exposes the flaw at the root of the enterprise: determining the law is not about sifting the opinions of various members of Congress who wrote the statute. Otherwise law becomes an exercise in “looking over a crowd at a cocktail party and picking out one’s friends,” which is just an invitation to judicial policymaking in disguise.
Scalia would have none of that, and so he insisted that we look at the text of the law itself. As former FCC general counsel Tom Johnson and FCC practitioner Joel Thayer have both pointed out, the law itself is very clear: Congress in 2004 directed the FCC to amend its rules. In doing so, Congress left it in the FCC’s hands for the future because the FCC retains authority over its own rules. Some might say Congress slapped a short-term compromise on the issue with a long-term fix in the future resting with the FCC. But it’s not about what some might say, or what others might remember. We don’t make law based on the recollections of those who were in the room where it happened. Justice Scalia taught us to just read the law in and of itself — that the best expression of Congress’s intention is the words that Congress enacted.
Here, those words clearly leave the issue in the Commission’s hands for future rulemaking. Two decades later, the short-term band-aid is no longer holding — the Commission should use its authority to give broadcasters a fighting chance on a level playing field with cable and Big Tech.
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Daniel R. Suhr is an attorney and president of the Center for American Rights, a conservative think tank and law firm with a focus on FCC issues.