by Larry Smith
Whenever an election is in the air, Bahamians seem to take leave of their senses. And the current controversy over political broadcasting rules set by the new utilities regulator (URCA) is a telling example.
This is not to deny that we should pay a lot of attention to any attempt to regulate the media. in fact, this should be the subject of a full-scale public debate going forward - rather than just a closed-door conversation among media moguls.
The question of how we regulate speech during an election has some interesting parallels with the recent US Supreme Court decison on political advertising - the ruling that was sharply criticised by President Barack Obama in his state of the union address last Wednesday. But before we get to those broader questions, a word or two on the local tempest in a teacup is in order.
As a former British colony, our laws and customs generally follow those of the United Kingdom, albeit with an often lengthy time delay. For example, the original version of the BBC in 1922 was part of the British Post Office, and when we set up ZNS in 1937 it was part of the Telegraph Department.
The BBC became a public corporation in 1927, but the Broadcasting Corporation of the Bahamas was not created until 1972, although ZNS became autonomous in 1957. Television in the UK came on stream in 1955, but - and solely for political reasons - we had to wait until 1977 for that to happen.
At the end of the 25-year Pindling regime, in June 1992, the Progressive Liberal Party promulgated a new set of rules for political broadcasting, which have remained in force ever since - through multiple general elections and bye-elections. These are the rules that Perry Christie, the current PLP leader, now condemns as unconstitutional and undemocratic.
So what are these nefarious rules? Well, here's the short text.
First, the content of political election broadcasts has to observe the law on incitement, defamation, copyright and obscenity. Second, parties can buy only six 30-second television and six radio spots per day. And third, all commercials must be produced in-house by the stations themselves using voiceovers by the candidate or a station employee.
"We roundly condemn what URCA has done and we completely reject it," Christie said, adding that the PLP wanted the freedom to buy as many ads as they wanted on as many stations as they wanted during the campaign leading to the February 16 bye-election in the Elizabeth constituency.
"It is unconstitutional. It is unlawful. It is a bogus and a completely unjustifiable attempt to stifle free and fair expression in a democratic society," Christie said. And he took this position in spite of the fact that the PLP is already heavily indebted to ZNS for political broadcasting aired before the May 2007 general election, when it was the party in power.
Private radio stations were also upset, with Jones Communications CEO Wendall Jones calling the rules "unprecedented censorship." Well, we don't see how that charge can be supported, but we do know that the rules could cause the loss of potential ad revenue. It is well-known that media companies reap huge benefits from political parties during election campaigns.
The utilities regulator fought back, saying it was committed to protecting the public interest by ensuring that treatment of all stakeholders is "proportionate, transparent and fair." The rules at issue are an interim measure, URCA said, which will ultimately be replaced by new content codes required by the Communications Act, which became law last September.
So how will these interim rules be enforced? According to a spokesperson for URCA, if a complaint is made, the station concerned has 48 hours to resolve the issue or refer it to URCA. "We will investigate whether a breach has occurred and give notice to the station for it to remedy the matter. The sanctions of a fine or licence revocation as provided for in the Communications Act would only be used as a last resort."
One remaining point to consider is that although these rules have been around since 1992, they were only selectively, if ever, enforced over the past 18 years because no enforcement agency existed. So this does constitute a major break with past practice, that occurred without consultation. Guaranteed to upset folks, but hardly the stuff of constitutional arguments.
In fact, the rules applied by URCA are similar to those in Britain, where political broadcasting has been regulated since 1947 and a longstanding ban on paid political advertising on radio and TV is in place. Instead of ads, major parties (those that contest at least one sixth of the seats up for election) are offered a series of campaign broadcasts that must comply with fairness, privacy and decency rules.
The 2003 Communications Act in Britain reiterated the ban on political advertising. The thinking is that by denying powerful voices the chance to skew political debate, the public interest is safeguarded. Sponsorship of programming or cable channels by political parties is also banned, putting politics in the same category as dangerous drugs, pornography and tobacco.
But we are more familiar with this side of the Atlantic, and as we all know, the United States is at the opposite end of the spectrum in this matter. The question we have to answer going forward is this: Are we more concerned about broadcasting as a vehicle of free speech, than we are about the possibility of special interests buying an election? This is a debate which we have largely avoided in the past, but which should now be held.
Many western democracies enforce spending limits on election campaigns. In Canada spending is based on the number of seats a party contests - the Liberals spent $20 million in 2008. In Britain overall spending for each party is currently limited to $30 million in a general election. In Europe, campaigns are financed publicly, requiring considerably less money overall.
In the United States, by contrast, it can take hundreds of millions to mount a credible presidential campaign. And although public financing was introduced in 1976, allowing candidates to qualify for matching government funds so long as they observe certain spending limits, candidates (including Barack Obama in 2008) have increasingly been opting out. This gives them unlimited spending rights.
In 2002 the landmark McCain-Feingold Act (also called the Bipartisan Campaign Reform Act) set limits on the raising and spending of soft money and restricted the airing of issue ads within 60 days of a general election. And corporations, groups and unions were barred from funding such ads - forcing candidates to stand behind their own ads.
For example, in the 2000 US Presidential race, more than half of the 1.2 million political ads broadcast were produced by special interest groups. And it was widely perceived that In 2002 Democratic Senator Max Cleland lost his re-election bid partly because of negative ads associating him with Osama Bin Laden (on the ground that this war veteran, who lost three limbs in Vietnam, had voted against President Bush's homeland security bills).
The McCain-Feingold restrictions - as light as they were - reflected the same concern about skewing the political debate that is behind the much tougher British campaign laws. But the US Supreme Court threw out limits on issue ads two years ago and in January they approved unlimited campaign spending by corporations, groups and unions as protected free speech.
"The censorship we now confront is vast in its reach," Justice Anthony Kennedy said in his majority opinion. In his dissent, Justice John Paul Stevens said: "The ruling threatens to undermine the integrity of elected institutions around the nation." And President Obama said the decision would lead to "a new stampede of special interest money in our politics."
According to Justice Kennedy, having government regulate who can speak is essentially allowing candidates and politicians to control speech. Supporters of the ruling say that a lot of spending by different people and groups in an election is called a debate, which is precisely what the constitution protects. Opponents argue that freedom of speech is not about the freedom to spend unlimited amounts of money.
The Bahamas has no campaign finance laws, and there have been periodic complaints about this foreign investor or that big businessman influencing the policy of our politicos with large cash contributions. Now that he is out of power, former PLP attorney-general Alfred Sears has called for a bipartisan campaign finance law "to abolish the pervasive practice of secret campaign contributions, often by foreigners and sometimes by disreputable sources, to political parties and candidates during by-elections and general elections."
Will it ever happen? Who knows. But one thing is sure - we will soon be in the midst of a wide-ranging public consultation on rules for political broadcasting. All of the issues discussed above must be considered during this debate.
Bahamas Electricity Corporation chiefs responded publicly to my article last week on the Wilson City power plant in Abaco. Most of the comments or clarifications were fair enough, but two require some come-back.
The first dealt with the level of public consultation for the plant. The prime minister has already admitted that this was lacking. And civil society groups like Friends of the Environment are adamant about it. Effective consultation is different from simply having an idea that something is going to happen. And the environmental impact assessments for the project were pointless; being clearly an afterthought, not well done, and released long after construction was underway.
The second point was BEC's characterisation of my reference to heavy fuel oil (which the Wilson City plant was supposed to burn) as "misleading and regrettable." In the article I described HFO as a "carcinogenic residue", and there are numerous oil company safety data sheets posted on the Internet which offer the following warnings:
"Fuel oil may cause cancer. Product classified as a Category 2 carcinogen. Care should be taken to keep exposures below applicable occupational exposure limits. If this cannot be achieved, use of a respirator fitted with an organic vapour cartridge combined with a particulate pre-filter should be considered. Repeated skin contact may cause tumours."
Of course, this only relates to product handling and storage, not the pollution caused when HFO is burned or spilled. Here's a quote about that from the Canadian government: "HFO is a waste product of the refinery industry which emits large quantities of sulphur oxide and fine dust, which has been shown to generate increased toxicological responses following pulmonary exposure in humans and animals."
When HFO is spilled into the sea it congeals and does not evaporate, often floating beneath the surface, making it very difficult to clean up. And while most ships still use HFO, there is currently a proposal before the International Maritime Organisation to curtail the use of HFO in ships due to pollution concerns.
And finally, the BEC response made it appear that HFO is a perfectly ordinary fuel that is used around the world without consequence. HFO-based power plants do operate on every continent, but in countries with strong environmental laws they must adhere to strict emission standards, which do not exist in the Bahamas, by using costly pollution controls - which BEC did not anticipate using at Wilson City and apparently does not use at Clifton.
However, it should be clearly noted that BEC's chairman and some politicians (Utilities Minister Phenton Neymour still appears ambivalent) now say that the Wilson City plant will burn diesel rather than HFO when it becomes operational in June.
According to the US Clean Air Council, improvements in fuel grade can lessen the health and environmental burden from combustion. Diesel exhaust, while still polluting, emits lower levels of particulate matter into the air, which can be more easily reduced with emission control technology.