What would Richard Nixon's fate had been if the Watergate break-in happened in 2016 instead of 1972? For some political and journalistic commentators, the historical speculation is too tantalizing to resist. "There's more likelihood he might have survived," former Nixon legal counsel John Dean mused five months ago, "if there'd been a Fox News."
The Nixon-Fox escape is an increasingly popular theory these days. It's a way to analogize (prematurely) President Donald Trump's murky Russia-related behavior to the impeachable sins of Watergate, and it's a way to bemoan the power-aggrandizing feedback loop within the contemporary conservative media bubble. "Fox News might save Trump from another Watergate," posited Vox last week. "Nixon never would have been forced to resign if you existed in your current state back in 1972, '73, '74," Geraldo Rivera told Sean Hannity on the latter's radio show in February.
At best, these counterfactuals do not take into consideration the ways that the more tightly regulated media landscape of the early 1970s played directly into Nixon's dirty hands. At worst, they morph into calls for reviving the Fairness Doctrine and strengthening Public Interest requirements—constitutionally questionable regulatory tools that Nixon enjoyed, Trump envies, and too many in the media pine for.
Much of the journalism profession's sense of nostalgia and motivation is centered on the romanticized refutation of Richard Nixon—publishing the Pentagon Papers under legal duress, allegedly turning the tide of public opinion against Vietnam, shoe-leathering that low-rent Watergate break-in until a whole presidency imploded. Reporters had values back then, patriotic values, and helped save us from a power-abusing authoritarian.
In fact, as the Watergate story was first unfolding Nixon enjoyed far stronger support among daily newspaper editorial boards than he did even with a voting public that would re-elect him by 23 percentage points. In a presidential campaign already marked by the September 1972 revelation that former attorney general John Mitchell had overseen a slush fund to spy on the president's enemies, Nixon won the ed-board endorsement war over Democratic challenger George McGovern in a landslide, 753 to 56. (The final daily-newspaper split for Trump and Hillary Clinton, for those keeping the analogy, was the inverse: 20 to 244, with Libertarian Gary Johnson receiving 9 endorsements and independent Evan McMullin 1.)
Did Nixon's endorsement rout reflect a pure preference for the same administration that famously referred to members of the Fourth Estate as "nattering nabobs of negativism"? No.
In March 1969, the Supreme Court ruled in Citizen Publishing Co. v. United States that "joint operating agreements" (JOAs), in which a city's competing newspapers share business-side operations, violated the Sherman Antitrust Act. There were 44 such newspapers in 22 cities at the time of the ruling, and so (in the colorful words of the Washington Post's Bill Prochnau in 1981), "publishers descended on Washington like locusts on Salt Lake City." Their goal was to revive a languishing bill originally (and accurately) known as the Failing Newspaper Act but by then rebranded as the Newspaper Preservation Act.
"The lobbying which went on for this bill may well have set new records," the former New Hampshire senator Thomas McIntyre told Prochnau. Chief among the palm-greasers was the once-mighty Hearst Corporation, which had pioneered the JOA as a way to forestall the eventual collapse of second-banana papers and to squeeze out monopoly-style profits for another decade or three. Nixon's Justice Department was against the bill, but his Commerce Department was for it. Hearst Corporation Chief Executive Richard Berlin was blunt about the value proposition to the president, writing in a letter to Nixon:
Those of us who strongly supported the present administration in the last election are the ones most seriously concerned and endangered by failure to adopt the Newspaper Preservation Act. The fact remains that there was almost unanimous support of the Administration by the newspapers who are proponents of the Newspaper Preservation Act. It therefore seems to me that those newspapers should, at the very least, receive a most friendly consideration.
Nixon signed the bill into law. And the Hearst papers in 1972 were no longer "almost unanimous" in their support; they were unanimous.
What of the news-gathering side of those Nixon-era journalism establishments? "In the 1970s, there tended to be an agreed-upon set of facts that the journalist reported," claims Jon Marshall, author of Watergate's Legacy and the Press, in the aforementioned Vox article. "So if you watch the CBS or NBC and ABC newscast, there would be some variation on the stories they covered and what they emphasize and didn't emphasize. But they agreed mostly on what was happening….I don't think that exists today."
The implication here, I think, is that the Big Three broadcasters' "agreed-upon set of facts" was uncongenial to a fact-bending president. But that's not how it looked inside the White House.
In memos written in 1970 and unearthed by the Senate Watergate Committee in 1973, senior administration officials bragged about exerting "an inhibiting impact on the networks," in part by invoking the real threat of regulatory retaliation. Former White House counsel and eventual Watergate convict Chuck Colson crowed about personally pressuring executives from each network, reporting that they were "very much afraid of us and are trying hard to prove they are the 'good guys.'"
"These meetings had a very salutary effect," Colson wrote, "in letting them know that we are determined to protect the President's position that we know precisely what is going on from the standpoint of both law and policy, and that we are not going to permit them to get away with anything that interferes with the President's ability to communicate….The harder I pressed them, the more accommodating, cordial and almost apologetic they became."
Colson's main policy weapon was the same one many contemporary Trump-opposing media nostalgiacs want to bring back: the Fairness Doctrine. That Federal Communications Commission rule—inaugurated in 1949, enshrined by the unanimous Supreme Court decision Red Lion Broadcasting Co., Inc. v. Federal Communications Commission in 1969, abandoned in 1987, and finally struck from the books in 2011—required broadcast license-holders to air pieces on controversial news topics and allow for opposing viewpoints to be heard.
The doctrine was a blunt instrument for powerful political interests to scare stations away from broadcasting anything that might trigger a demand for an opposing response. As economist Thomas Winslow Hazlett wrote in Reason earlier this year, "The goal was not to get on the radio but to tax political dissent, getting opposing views off. The cynical campaign worked, and then some. Broadcast radio and television devoted almost no valuable time to public affairs; unorthodox beliefs scrambled and hid."
The system was maximally geared to favor the powerful just as Tricky Dick was leaning into his first term. "The Nixon White House was seeking systematically to politicize broadcasting," legendary CBS broadcaster Fred Friendly wrote in a must-read 1975 New York Times history of the doctrine and its abuses. "A Supreme Court decision that could be construed as the opening wedge for Government involvement in decisions of content on a broadcast?by?broadcast basis meshed with the aspirations of the Nixon Administration." That combination produced results:
There is evidence…that major broadcasters were in fact inhibited by the Government during this period. They granted Richard Nixon more free air time than any President had ever sought before to announce and explain his programs. And with few exceptions, they acquiesced in the demand of the White House that views too critical of the President and his policies be kept off the air—when, for example, the Democratic National Committee sought to purchase reply time to the President.
Not only did the Fairness Doctrine dissuade broadcasters from tackling politics, its kissing cousin, the Equal Time Rule, drove license-holders still further away from the business of putting pols under the bright lights. Hazlett again:
The Equal Time Rule…quashed rather than fostered presidential (and other) debates by giving all office seekers—dozens—the legal right to crowd onto the stage. Neither the major networks nor the major candidates would consent to participate in these circuses.
An act of Congress temporarily waived the equal time mandate in 1960, thereby allowing the famous Kennedy-Nixon debates. No such special dispensations were enacted in 1964, 1968, or 1972, and presidential debates were again lost. The law was revised in 1976 in a way that made such waivers standard, and debates have been the hit of every presidential season since. Only by eliminating a rule meant to promote "equal time" was it possible for public debate to gain any time.
The Nixon administration's ability to sculpt a maximally favorable media environment is something Donald Trump impotently aspires to but cannot ape. After (and even before) the president warned that "Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked," his own Federal Communications Commission (FCC) chief, Ajit Pai, shot the idea out of the water. Trump may have bristled at being the butt of late-night jokes by asking whether "Republicans (and me) should be given Equal Time on T.V.," but in fact his very candidacy depended on the old FCC rule being piled up with so many exceptions that any attempt to re-impose such strict enforcement would face insurmountable legal obstacles.
It's far easier to influence TV news when there are only three networks, who between them broadcast far less than 24 hours of news per day. Which gets to another arrow Nixon had in his quiver that Trump could only dream of: Public Interest requirements. Hazlett again:
FCC regulators, while kvetching about network TV's "vast wasteland," blockaded a competing medium, cable television, in the '60s and '70s. The rationale was that wired networks would "siphon" viewers from over-the-air stations, threatening the latter's financial viability. That was claimed to endanger the "public interest" in TV news and informational programs, undermining American democracy….
Only when deregulation eliminated such byzantine rules did bountiful entertainment flow. And real informational programming, which had been cynically used as the justification for broadcast protectionism, finally emerged—on unlicensed, unregulated C-SPAN (1, 2, and 3), CNN, Fox News, MSNBC, Comedy Central, and other outlets too numerous to name. Ideological diversity sprouted with no "public interest" rules to smother it.
So one way to address the hypothetical question What if Watergate had happened in our Fox News world? is to say that MSNBC would have flat out incinerated Richard Nixon 24/7. Also, any attempts by White House heavies to lean on the Big Three broadcasters would have been laughed out of the building. Meanwhile, with competition and proliferation loosening up ideological strictures right and left—including the pretense of non-ideological news presentation—there's at least a chance that newspapers would have been a bit less enthusiastic about preferring Nixon over McGovern. Say maybe closer to the 5:1 ratio enjoyed by Gerald Ford over Jimmy Carter, instead of Nixon's 13:1.
The details are of course speculative, but the overall frame is hard to dispute: Richard Nixon took material advantage of being the chief regulator in a highly regulated media environment. He famously used cross-ownership rules, which limit newspapers' ability to own broadcast stations, to apply pressure on the meddlesome Washington Post, a scenario that Trump may be replaying now with his personal lobbying to double the postal rates on Amazon, which shares an owner in common with…the meddlesome Washington Post. But Nixon had a lot more levers like that at his disposal than Trump does.
Faced with a news-baiting president they may well hate more than Nixon, many journalists and commentators are advocating a curious solution: Give the federal government he sits atop more discretionary power over the media business.
Twelve Democratic-caucusing senators, including potential presidential aspirants Bernie Sanders, Elizabeth Warren, and Cory Booker, recently asked the F.C.C. to consider revoking the licenses of the Sinclair Broadcast Group, a conservative local-news purveyor, in the name of the Public Interest.
"Bring back the Fairness Doctrine," urged former congressman Mel Levine and L.A. civil rights lawyer Joel Bellman in the Sacramento Bee last month. ("There was a time when the FCC's Fairness Doctrine helped keep its radio and TV licensees responsible, and responsive, to their communities," they write, ignorantly. Instead, "today we have Fox and Sinclair running news divisions whose ideological bias and indifference to basic journalistic ethics would have once been inconceivable.")
"Trump continues attacking the media," complained the Seattle Times editorial board last month. What is to be done? Among other recommendations, they called for "strengthening public-interest standards for broadcasters." The only way to stop Big Brother, apparently, is to hand him a loaded gun.
Underpinning this perverse set of policy preferences is a persistent sense of anxiety, unsupported by evidence, that the American media diet has somehow become less diverse in our Internet age, thereby producing unhappy political outcomes.
"The undermining of media as a public good and its parallel consolidation helped take us to the election of Donald Trump," argue Adam Eichen and Frances Moore Lappe, in their 2017 book Daring Democracy: Igniting Power, Meaning and Connection for the America We Want (excerpted two months ago in Salon). An "Anti-Democracy Movement," the authors maintain, has succeeded to such an extent that "today most of what Americans watch and see is controlled by just a handful of companies—all preoccupied with their shareholders' wealth, not our society's health."
The truth is closer to the opposite. Media has become more, not less, democratized over the past half-century, with the user experience far less "controlled" than in the alleged glory days of the early '70s. Consumers may not be making the kinds of media choices that journalism defenders prefer, but that's not a problem for the government to fix.
As Fred Friendly concluded in 1975, echoing a lot of hard-earned liberal truths from that profoundly disillusioning moment, a classic Democratic error of the period was to believe that policy intentions mattered more than effects and that abuse of power was limited just to Richard Nixon.
"It became clear [upon investigation] that the basically well intentioned concept of the fairness doctrine has on occasion been perverted—used for political purposes," Friendly wrote. The Kennedy administration, he discovered, engaged in "a politically motivated campaign to use the fairness doctrine to harass stations airing right?wing commentary, an effort inspired and managed by the White House and the Democratic National Committee and financed in large measure with political contributions." More:
The facts of that effort are startling enough in themselves after the Watergate story, with its generally accepted assumption that dirty tricks in the Nixon White House were unique. But the story of the fairness?doctrine effort during the 1964 campaign also illuminates—with striking irony—the subtle and fascinating interplay of power politics and regulatory policy. In the Red Lion case, for example, many of the agency bureaucrats, Government lawyers and judges tended to dismiss the broadcasters' claim that freedom of expression might be "chilled" by court decisions extending Federal regulatory control over the content of radio and television programs—little realizing that at the time, they were granting implicit legal sanction to an unsavory project of political censorship by the Democrats.
Furthermore, this sanction, unwittingly ratified by the highest court in the land, would later embolden the Nixon Administration in its attempts to lean on broadcasters unfriendly to the President.
Some lessons, it would seem, need to be re-learned every generation. Particularly by journalists.