U.S. Broadcasters Should Disclose Identity of Political Ad Donors, Says Ex-FCC Chair

The FCC isn’t likely to make Monday’s petition from Geller and Minow, best known for calling TV a “vast wasteland” in an NAB Show speech 53 years ago (CD May 11/11 p8), a high priority, agreed the stakeholders. Some said they're optimistic the Media Bureau will at least issue a public notice on the petition, as that document seeks, but said Chairman Tom Wheeler may not have much incentive to provoke Capitol Hill Republicans by seeking a vote on actual rules. Wheeler’s own nomination was slowed due to Republican concerns he would seek further political-ad disclosure, noted Campaign Legal Center Policy Director Meredith McGehee. CLC probably would support the Geller/Minow proposal, with some changes, she said.

The changes sought by the petition are in addition to the rules taking effect July 1, when all U.S. TV stations must post online new additions to their political-ad files (CD April 8 p5). Further new rules would require more information be reported, which the online political file disclosure rules don’t envision, said industry, public interest and other officials. That’s why nonprofits under sections 501(c)4 such as social welfare groups and 501(c)6 such as trade associations likely would oppose the petition, they said. “This would pierce the veil on c4s,” said former FCC Commissioner Michael Copps, who said his current employer, Common Cause, likely would back such rules. “Would some oppose it? You may be sure,” emailed the Democrat, who backed sponsorship ID and opposed payola while at the commission. “But -- it’s the law."

The FCC, which has received the petition and is reviewing it, “has required political files to be online, over the opposition of broadcasters,” said a bureau spokeswoman. The bureau recently reminded “all broadcasters that they need to put political files online by July 1,” she said of last month’s public notice (http://fcc.us/1hxVWvM). “Never before has there been so much public access to such information."

FCC Inaction

That the FCC hadn’t acted on a 2011 petition from the now-defunct Media Access Project seeking such disclosure under Communications Act Section 317 means the agency should act quickly on the new petition, said likely supporters of it. The Section 317 petition from MAP “was studiously avoided by the previous” FCC, said Copps. “I'm hoping the new Commission will be more responsive to citizen petitions. We'll see.” Wheeler is aware the issue of such nonprofit group disclosure is the “third rail” of politics now, said McGehee. “He has some room to move on the disclosure issue, but it’s going to be a huge, huge battle.” Cases like this year’s Supreme Court decision in McCutcheon v. FEC, which the petition also cited, may bolster Wheeler’s likelihood of acting, said McGehee. “I'm dubious generally on this administration because his predecessor totally kicked the can down the road,” she said of Julius Genachowski, but “my goal is to build a pathway that will kind of make it easier for the FCC to enforce the current statute."

Requiring the disclosure of donors paying for political ads wouldn’t require a change in the law, but would rather be accounted for in sponsorship ID rules that such spots, unlike traditional promotions of the past, don’t clearly have a sponsor whose origins are well known, said some public interest officials. The FEC requires disclosure of groups sponsoring such ads, similar to what the FCC requires, and the listing of some contact information, said lawyer Caleb Burns, who advises 501(c)4s and others at Wiley Rein.

Whether nonprofit groups buying ads related to politics would oppose what Geller and Minow seek may “depend on how onerous the disclosure is,” said Burns. “The chief argument from the 501(c)4 community is that disclosure has been used as a weapon for political retaliation. And if that disclosure is significant enough that it results in retaliation from elected officials or others, then they'll be against it."

Stations might disclose on-air some sponsors, or a URL for a website listing all the funders, suggested the petition and Geller in an email. A 1944 FCC rule requires ID of political and controversial issue ad funders, noted the petition. “The station must therefore require that the ads fully and truly identify the persons who were the donors who paid for the ad, either by aural announcement or on ribbon listing the five, ten or twenty or whatever number.”

Broadcaster Burden?

It’s “not a burden on the station,” wrote Geller and Minow, who now works at Sidley Austin and had no comment for this report. “If the number of donors were very large, the Internet would have to be used.” An FCC NPRM could propose a rule change that the two or three largest donors be disclosed on-air, “and the others disclosed on the Internet, possibly with the URL website announced on air,” said Geller, who also was the first NTIA administrator, by email.

The online public file rule for all TV stations “is helpful but insufficient to address the ‘dark money'” in politics, said Geller. “It does not reveal anything about the crucial issue of donors.” Broadcasters would face no additional burden, since the ad buyer must provide the information, said the petition. The NAB declined to comment. About $311 million was spent in the 2012 elections on ads by 501(c)4 and (c)6 groups, said Communications Director Viveca Novak of the Center for Responsive Politics, which tracks such spending based on FEC figures and supports transparency. This election cycle has seen an increase in such spending compared to this point of the last cycle, she said.

What Geller and Minow seek “would be a big change” from current nonprofit disclosure of political ad spending, said Novak. “The whole advantage of being a 501(c)4 is that they don’t have to disclose their donors,” she said: “I would imagine there would be a lot of opposition” should the FCC seek comment. The petition doesn’t make a novel request and isn’t very specific about implementation, leaving open many questions about what shape rules would take, agreed a broadcast lawyer and nonprofit officials. -- Jonathan Make (jmake@warren-news.com)