Political Ad Disclosure for 2014 -- Why Not?

Posted by Michael Copps on March 19, 2013

Thumbnail for the disclosure campaign

In case anyone doubted the authority of the Federal Communications Commission (FCC) to require fuller disclosure of who actually pays for all those anonymous political ads that flooded the airwaves last year, the Government Accountability Office (GAO) has just reaffirmed that authority. The GAO" the government's top watchdog agency" is also critical that the FCC has not bothered to update its "sponsorship identification" guidelines since the 1960s and it recommended that the Commission do so.

The right of the people to know who is sponsoring advertisements, both commercial and political, goes back to the 1920's and the old Federal Radio Commission. Subsequently this authority was rolled into the new Federal Communications Commission when it was established in 1934.

The GAO tells us at the outset that it wrote the new study because "The FCC is responsible for ensuring that the public knows when and by whom it is being persuaded." Again, this requirement applies to both commercial and political advertising. In fact, the GAO states, "For content considered political or that discusses a controversial issue, broadcasters must follow all requirements for commercial content and additional requirements, such as indentifying officials associated with the entity paying for an advertisement."

It is Section 317 of the Communications Act (47 U.S.C.  47) that requires on-air identification of ad sponsors. Explaining the rules it wrote to implement the law, the FCC stipulated years ago that political ads must "fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity" paying for them. "Listeners are entitled to know by whom they are being persuaded," said the FCC. I think we all get the drift of what's being required here: specific identification of who is really bank-rolling all this stuff?

I believe that when a law requires "true identity" it means "true identity." In other words, a chemical company dumping sludge into the Chesapeake Bay should not be allowed to masquerade as "Citizens for a Clean, Green Future" or "The Committee for Sky Blue Waters." Nor should billionaire contributors, conservative or liberal, be allowed to mask their identities under a cloak of "Citizens for Purple Mountain Majesties and Amber Waves of Grain."

Let's face it. Money commands outrageous influence in our politics. Money buys elections, opens the doors of the power elite, and sometimes even writes the laws that Congress, our statehouses and city councils vote on. It is reliably reported that more than $6 billion was spent on the 2012 elections, the largest chunk of that going to media buys. Limiting the influence of that $6 billion must be our goal, but in light of the notorious Citizens United decision by the Supreme Court that opened the spigots to almost unlimited electioneering money, this will demand actions that current Washington gridlock appears incapable of generating.

So the billionaires and corporations, the PACs and SuperPacs, and all the other special interests that come up every day with new ways to send dark money down dark alleys, see little to fear. They can go on writing their mega-checks (they're doing so as you read this) for the 2014 Congressional and down-ballot races free from meaningful limits, free from limiting government oversight, free from public disclosure. And they're already busy picking their favorite candidates for 2016, too.

But, wait! There is something we can do. Right now. It won't solve the overall problem of money in politics, and we must all, of course, keep working on that. But if the FCC would exercise the authority it has under Section 317, we could at least see Big Money unmasked. We could know who is really running all those ads and we would much better understand the message once we identified it source.

Section 317 has apparently been locked in some dusty FCC bin for more than 20 years. All the while, special interests have been inventing new ways to inject anonymous money into campaigns across the land. The FCC has made no attempt to keep current with it. The GAO noted, very critically I thought, that "FCC guidance for the sponsorship identification requirements has not been updated in nearly 50 years to address modern technologies and applications." And while this statement addressed the totality of sponsorship identification responsibilities, it strikes me as spot-on with regard to what has happened in the world of political ads.

Here's the best part. This reform" and it would be a huge reform" can happen without waiting for Congress to pass any new law. It requires no legislative or executive proposal from the President. No Constitutional Amendment needs to be enacted and ratified. All we need is for the Federal Communications Commission to exercise authority it already has. The rules implementing this authority need some updating, given that they have not been significantly modified since the " 60s. This can be done through normal notice-and-comment processes that the FCC uses just about every day. I can see no practical reason for this updating to take more than 90 or 120 days. That means it can be in effect in plenty of time for the 2014 elections.

Two years ago, Andrew Jay Schwartzman of the Media Access Project petitioned the FCC to do exactly this. His suggestion was ignored. I have been urging similar action, both before I left the Commission and ever since. I cannot understand the hesitancy in moving forward on this. In my new role leading the Media & Democracy Reform Initiative at Common Cause, we are pushing for disclosure through our "Your Right to Know" Campaign. It is your right, you know.

Someone will say, "Well, the FCC would be sued for doing this." Well, the FCC is sued for just about everything it does. I guess even an 86-year old requirement can be contested. But note this: the U. S. Supreme Court's deservedly-maligned Citizens United decision spoke encouragingly of disclosure. Eight of the Justices effectively signed on to a statement in that decision saying "Disclosure is a less-restrictive alternative to more comprehensive speech regulations." So we should not be paralyzed by fear of judicial reversal.

Upon release of the GAO Report, House Democratic Leader Nancy Pelosi (who requested the study) and Representatives Henry Waxman and Anna Eshoo released powerful statements urging the FCC to update its rules. Rep Eshoo noted: "Where power once originated from the general electorate, that balance has shifted in favor of the enormously wealthy, who can now hide their identity and their political expenditures. It's time for the FCC to play a crucial role in bringing greater transparency to America's electoral system by requiring sponsors of political ads to disclose their true identity, not just their ambiguously-named Super PAC."

Just last week, Senator Bill Nelson and Senate Commerce Committee Chairman Jay Rockefeller both stood up for disclosure and pressed the FCC Commissioners testifying before them to take a stand, so now there is pressure from both Houses of Congress for the FCC to update its old rules for ad identification.

Imagine: you're watching an ad and it actually tells you who is trying to win (or buy) your vote. What a difference a little sunlight would make. What a great tool disclosure would be to citizens trying to navigate their way through the anonymity and mud of what our campaigns have become. It's your right" demand no less.

This post originally appeared on the Benton Foundation's blog

Office: Common Cause National

Issues: Media and Democracy

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