FCC Has Obligation to Disclose Political Ad Sources (The Hill)


For television viewers living in the Northern Virginia suburbs this past fall, it was hard to miss one particular ad because it ran in a saturation rotation in the Washington D.C. media market hammering Republican gubernatorial nominee Ken Cuccinelli.  The ads run by Independence USA PAC attacked Cuccinelli on his stance on guns, accusing him of “voting against closing the gun show loophole,” “endangering our families” and “undermining law enforcement and calling Cuccinelli “too extreme for Virginia.”  Notably, this ad had little, if any, rotation in downstate Virginia.

By its own admission, Independence USA PAC spent more than $1 million on ads to support the Democratic candidate – and eventual winner – Terry McAuliffe.

That’s a lot of money and a lot of message.  Who was so eager to run ads in this now purple state to defeat Cuccinelli?  And would it have mattered to voters if they knew who was behind the ads?

Well, the Supreme Court seems to think so.  In the controversial Citizens Uniteddecision, that allowed corporations and unions to spend unlimited amounts in election campaigns, the Court also upheld the disclosure requirements in current law by an 8-to-1 margin.  Justice Kennedy said from the bench:

“We reject Citizens United's challenge to the disclaimer and disclosure provisions.  Those mechanisms provide information to the electorate. The resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages."

So who was behind Independence USA PAC?  Who was the true source of the $1 million spent to influence a Virginia election?

It turns out it was outgoing New York City mayor Michael Bloomberg.  How would Virginians have perceived the ad if at the end there was a visual showing Bloomberg among the top funders of Independence USA PAC.  It’s fair to ask how Bloomberg would have played in Virginia.  And it’s a safe bet Cuccinelli’s side would have tried to capitalize on Bloomberg’s support for McAuliffe.

Would they have felt that a northerner – a New Yorker, at that – should not have been interfering in Virginia’s election?  Would they hear the ad’s message differently?  Or would they not have cared and focused only on the substance of the accusations?

There’s no way to tell now.  What we do know is that these kinds of ads from outside groups are growing.  In the 2012 elections, these groups spent about $1 billion, according to the Center for Responsive Politics, most of it on TV ads in races all across the country.  More ads from outside groups mean more murky money pouring into the election process.

How could Independence USA PAC get away with keeping viewers in the dark about who was paying for ads?  The answer is simple.  Because the Federal Communications Commission (FCC) turned a blind eye and let them run those ads with a tagline that meant nothing to most viewers despite laws already on the books to the contrary.  Section 317 of the Communications Act requires 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 the ad.  In explaining the provision when it was enacted the Commission wrote, “Listeners are entitled to know by whom they are being persuaded.”

But in practice, it’s not happening.  Instead, we get ads with tag lines like the one in the Cuccinelli ad – “Paid for by Independence USA PAC.”

Given the Supreme Court’s overwhelming support of disclosure and strong existing statutory language, the new FCC Chairman Tom Wheeler could move quickly to adopt new, updated rules requiring more up-to-date and accurate on-air sponsorship identification of the funders of political ads on television.  But whether he is willing to do so remains unclear.

To remove the hold of his nomination, he gave reassurances to Texas Sen. Ted Cruz (R) regarding FCC action on disclosure.  Sen. Cruz characterized the assurances this way:  “Mr. Wheeler stated that he had heard the unambiguous message that trying to impose the requirements of the Disclose Act, absent congressional action, would imperil the Commission’s vital statutory responsibilities, and he explicitly stated that doing so was `not a priority.’”

What should be a priority is ensuring the American people have the information they need to make up their own minds.  Chairman Wheeler should not be cowed by congressional bullying to fail to enforceexisting laws and regulations. As the Supreme Court has said, voters have a right know the “true identity” of who is paying for the political ads flooding into our homes in the post-Citizens Unitedelection system.

McGehee is policy director of the Campaign Legal Center and heads McGehee Strategies, a public interest consulting business. This opinion piece was originally published in The Hill on December 17, 2013.