THE ISSUE THEY WANT TO GO AWAY

During the 1992 congressional primaries, pro-life candidates in a series of states bought prime television time for “dead fetus ads.” These commercials contained horrifying imagery of surgical abortion, and they brought a shower of criticism down on the stations that carried them.

The ads did not “work,” for the most part; few candidates who aired them wound up winning. But a handful did win their primaries and were likely to rerun the ads in their fall campaigns. So a nationwide coalition of broadcasters sought protection against this prospect from the Federal Communications Commission.

We are pinned between conflicting federal laws, these television and radio stations complained. The Communications Act of 1934 gives qualified candidates for federal office “reasonable” access to the airwaves. The act also forbids stations to censor candidate-produced commercials in content or design. This law, the broadcasters observed, appeared to require that they carry the shocking abortion ads.

At the same time, however, a separate federal statute imposes criminal penalties for the televised communication of “indecent” material anywhere outside a late-night “safe harbor” period. The FCC defines indecency as any ” patently offensive” depiction of “sexual or excretory activities or organs.” The broadcasters’ lawyer argued that “by this definition,” the abortion commercials were indecent “because they show a byproduct of an excretory activity: a fetus from a uterus.”

This argument was so grotesque that even the federal government was unwilling to accept it completely. In August 1992, the FCC’s Mass Media Bureau concluded, with amazing understatement, that “neither the expulsion of fetal tissue nor fetuses themselves constitute “excrement.'” But the broadcasters appealed, and the FCC eventually allowed stations to shunt or ” channel” graphic abortion ads to their late-night programming schedules.

This compromise remained in force until a federal appeals court struck it down in September 1996. “Content-based channeling of non-indecent political advertisements,” even ads that include pictures of mutilated fetuses, are a violation of the Communications Act, the court decided.

As it happens, the FCC has never taken action against nonsexual indecency, and there was never any serious risk that the commission would penalize a television station for airing a qualified candidate’s pro-life spot, no matter how extreme in presentation. The entire legal controversy was bogus, in other words, and the broadcasters’ indecency claim was a fancied-up dodge disguising a much simpler truth: They did not like the 1992 abortion ads and were attempting to escape a clear requirement to run them.

As it happens, too, this particular question has now been mooted — not so much by the appealscourt ruling as by the conventions of campaigning. For all intents and purposes, the “dead fetus” ad is history. Most pro-life political candidates have long since concluded that purely visceral appeals are counterproductive, and so they no longer produce them. As a matter of fact, the fear of public backlash is so widespread that most candidates no longer advertise their pro-life views at all, even in modulated, non-graphic form. This no doubt makes the nation’s television stations very happy. But it is a troubling development for mainstream discourse on the subject of abortion, which was already highly constricted and is now reserved almost exclusively to occasional debates, on the margin, in Congress.

How can the American mind be turned against our abortion-on-demand regime if American politicians decline to discuss that regime during elections, the very time when they most command public attention? Perhaps private citizens can pick up the slack and produce independent political commercials that advocate the election of pro-life legislators. Perhaps, if such commercials are constructed around non-sensational fact and argument, broadcasters might eagerly accept them.

Perhaps O.J. Simpson was innocent. California’s 22nd congressional district holds a special election this week to fill a seat left vacant by the late Walter Capps, a Democrat. There are two leading Republicans in the race. One is Brooks Firestone, heir to the tire fortune and hand-picked candidate of Newt Gingrich and the national GOP. Firestone is pro-choice. He voted against a ban on partial-birth abortion in the California Assembly.

Firestone is also richly funded. His first campaign commercials ran in early December. Since then, he has been off the air only briefly, the week of Christmas and New Year’s. During this “dark” week, coincidentally, there appeared on local stations more than $ 50,000 worth of 30-second ads touting Firestone’s record — paid for by a non-profit “issue advocacy” organization, the Foundation for Responsible Government. FRG is led by pro-choice Republicans and works to advance their agenda.

The other principal Republican in the race is Tom Bordonaro. He is pro-life, and voted for the partial-birth ban in the California Assembly. But he has no money. Bordonaro’s first TV spots have gone up only in the campaign’s final week, and he has managed to buy only 23 of them, for a total of $ 4,485.

So the Campaign for Working Families, an organization led by the religious conservative activist Gary Bauer, has attempted to intercede. Unlike FRG, the Campaign is a registered federal PAC. Unlike FRG, it raises contributions in legally limited increments and fully discloses both its donors and expenditures. Unlike FRG, the Bauer group has produced television advertising for the Bordonaro-Firestone race that honestly announces its purpose: “Vote Bordonaro for Congress.” And unlike FRG, the Campaign for Working Families has been unable to get its advertising on the air in the preferred, original form.

Why? Because the commercial message in question is about abortion. The 30- second version of Bauer’s ad features a picture of a living, newborn baby. The voiceover briefly describes partial-birth abortion as follows: “This procedure starts with the entire body being delivered except for the head. An incision is then made into the skull and the brain removed.” The 60-second version of Bauer’s ad features a nearly identical account of the partial- birth procedure, this time voiced by a woman in conversation with some of her friends.

In early December, the Campaign for Working Families asked three Santa Barbara-area network affiliates if they would sell the group significant air time for political commercials in the BordonaroFirestone race, and each of the affliates agreed. But in late December, after the actual spots had been produced and submitted, all three stations refused to air them. The descriptive language about partial-birth abortion contained in both ads, Bauer’s representatives were informed, was “offensive,” and unless that language were deleted, the ads would not be allowed to run. Last week, rather than do nothing at all for its favored candidate, the Campaign for Working Families did delete that descriptive language from its scripts, and the spots finally began to air.

There are a couple of things to say about the editorial judgment of these television stations. First of all, there wasn’t the remotest question of ” indecency” in the original Bauer ads. There were no dead fetuses here, only an indisputably accurate, even clinical, account of a particular, legal surgery. In fact, each of the stations refusing to air the unexpurgated ads had already broadcast much the same information about partial-birth abortion, almost word for word, in the network news programs they carry. What’s ” offensive” about those ads, in short, seems not to be what they said, but who was saying it and with what aim. These commercials were sponsored by pro- life private citizens explicitly hoping to achieve a real-world, pro-life political result. The Santa Barbara stations apparently regarded this as unacceptable.

The anti-Bauer ban also raises an interesting issue of law. Having accepted and broadcast an advertisement produced by supporters of Brooks Firestone, the network affiliates may have triggered what’s known as the FCC’s “Zapple Doctrine,” which holds that air time for proponents of one candidate in an election guarantees air time for proponents of the other. Even unauthorized, independent groups like the Campaign for Working Families are covered by Zapple. And once on the air, no such group’s ads may be censored, as we have already seen.

The Bauer group has asked the FCC to confirm this understanding of the Communications Act and remind the Santa Barbara stations of their corresponding responsibilities. But the exact circumstances of this controversy are without judicial or administrative precedent, and how the commission will rule is anyone’s guess. If the FCC refuses to help out — as a general matter, only federal candidates, not their supporters, have an affrmative right to the airwaves — the entire controversy will underscore yet another ghastly truth about abortion in modern America. In its most pointedly effective forum, all that our public debate is yet prepared to admit about abortion is that “neither fetal tissue nor fetuses themselves constitute “excrement.'”

That’s not enough, to say the least. On a daily basis, pro-life Americans face a conspiracy of silence erected in defense of a deadly status quo. And their side of this argument, if that’s the right word for it, is routinely shushed or muzzled — as Gary Bauer’s experience makes plain. Opponents of abortion must speak, and the gatekeepers of American debate — like those Santa Barbara stations — must let them do it. Twenty-five years after Roe v. Wade, that small justice, at least, shouldn’t be too much to ask.

David Tell, for the Editors