Political Ad Funders Must Not Dodge Scrutiny: Susan Crawford
Thanks to the Supreme Court’s decision last year to allow corporations and unions to make unlimited campaign contributions, Americans in the coming year may be blitzed by $1 billion of essentially anonymous television ads.
Sponsors will hide behind the facade of made-up names for empty organizations. Why? So voters can’t question messages because of ad buyers’ motives. Congress or the Federal Communications Commission could guarantee the common-sense right to judge a political message by the intent of the messenger. But the Republican-controlled House of Representatives has no intention to pass such a disclosure law.
Indeed, Oregon Republican Greg Walden, chairman of the House committee with jurisdiction over the FCC’s budget, has promised to go “nuclear” with budgetary reprisals if the commission dares require full identification of campaign ads’ funders.
So far, the FCC has deferentially said it will look into requiring broadcasters to post information online about the managers of groups that place political ads. Unless voters demand that the regulator of the public interest on television do more, the FCC will almost certainly avoid the question of who funded those groups in the first place.
You don’t need a law degree to figure out that democracy requires disclosure of the moneybags behind political advertising. That’s the premise underlying the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission.
All the justices, except Clarence Thomas, agreed that “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Disclosure of financial support for broadcast political advertising is not a partisan issue. As former Senators Bill Bradley, Bob Kerrey, Warren Rudman and Alan Simpson (two Democrats and two Republicans) wrote to the FCC in July, funding disclosure helps to ensure that elected leaders “are neither beholden to nor threatened by narrow interests.”
For years, Republicans arguing against campaign-finance reform claimed that disclosure was sufficient. With enough information about who was giving funds, the argument went, the public could decide whether to be swayed by political advertising.
Now Rep. Walden wants secrecy. But secrecy is corrosive in this context. In June 2010, Iowans for Responsible Government spent $370,000 on television ads attacking Republican Terry Branstad as a liberal before the Republican gubernatorial primary. Only after the primary was over did anyone learn that the sole funder of Iowans for Responsible Government was the Democratic Governors Association.
The information deficit in this area is unbearable. While political advertising is growing exponentially, nonpartisan reporting isn’t keeping pace. We are being blocked from understanding who is trying to influence our ill-informed vote. A study of the 2006 midterm elections found that local television newscasts typically aired more than four minutes of partisan political ads, but allocated less than half that time to objective reporting about local elections.
Broadcasters stand to take in as much as $3 billion of political-ad revenue this next cycle. With the benefits of that torrent of campaign cash must come public burdens. The U.S. will never be as restrictive as the U.K., where political advertising is barred on television and radio, except for a handful of party political broadcasts. But our political discourse has moved too far in allowing shadowy elites to influence political races.
A petition filed by the Media Access Project with the FCC earlier this year points the way: The next time Puppies for Freedom buys an ad, the public should be able to know who stands behind those pets. (The Media Access Project and Bloomberg LP, the parent company of Bloomberg News, are members of the Coalition for Competition in Media, which raised objections to the acquisition of NBC Universal by Comcast Corp.)
No one questions the FCC’s authority under existing law to pierce the veil by requiring companies that buy ads to say where their revenue comes from. The FCC could require this information be included in broadcasters’ existing political files. If ads are being placed by conduit companies that rely on political campaign placements for 70 percent or more of their business, the disclosure would have to reveal the entity ultimately responsible for the political speech in question.
As the FCC politely suggested this week, that political file could go online. This enhanced disclosure requirement would embody the deal struck by the Supreme Court in Citizens United: Transparency provides balance.
One of the FCC’s five commissioners understands the case for action. As Commissioner Michael J. Copps puts it: “Democracy is not well-served when those who are attempting to manipulate our political dialogue through unidentified advertising won’t even stand up and tell us who they are. The fissures in our democracy will continue to widen if big money retains its unchecked influence in our elections.”
The FCC’s other four commissioners should heed his warning. Voters should insist on bold action in the public interest, now.
(Susan Crawford is a Bloomberg View columnist and a professor of law at Cardozo School of Law. The opinions expressed are her own.)
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