Partisan Hill Pressure Rising for FCC To Act on Campaign Finance Disclosure

One senior House Republican dismissed the push from Democrats to hitch the legislation to a bevy of FCC process and transparency bills. “They know that what they’re pushing is really about politics,” House Communications Subcommittee Chairman Greg Walden, R-Ore., told us this week. “It’s not really about policy at this point. They know that. I wish they’d just join with us on the clear transparency piece. We’ll see Wednesday whether they will or not.”

Walden will be marking up several pieces of FCC-focused legislation Wednesday at the subcommittee level. During a Friday hearing, subcommittee ranking member Anna Eshoo, D-Calif., and Commerce Committee ranking member Frank Pallone, D-N.J., pressed Walden to include the House disclosure bill and expressed disappointment it was not on the agenda Friday. “They want to make this about campaign finance reform, and really this is about [Communications Act] Title I, dealing with operations at the FCC,” Walden said. “There’ll be a time and day to do campaign finance somewhere else but this isn’t that place. That’s what we’ve tried to tell them. Regardless of where you are on their particular version of disclosure, this legislation is about how the Commission operates. It’s basically dealing with Title I, not with broadcast disclosure.” The bill’s backers are “looking for anything moving to try to attach it to,” Walden added.

Similar legislation from Senate Commerce Committee ranking member Bill Nelson, D-Fla., would make the FCC begin a rulemaking to update Communications Act Section 317 disclosure rules. It would force the FCC to look into how to “ensure that political broadcasts include disclosures containing more detailed information about the identity of the true sponsors of such broadcasts” and to “consider how best to require the disclosure of sponsorship identification information, including by requiring that more detailed sponsorship identification information be placed online or in another form more readily accessible to the public.” The House bill, introduced by Rep. John Yarmuth, D-Ky., with backing from Minority Leader Nancy Pelosi, D-Calif., would direct the FCC to “revise its sponsorship identification rules so as to require the disclosure of the names of significant donors to persons paying for or furnishing broadcast matter or origination cablecasting matter that is political matter or matter involving the discussion of a controversial issue of public importance,” compelled within 90 days of enactment.

Michael Copps, a former FCC commissioner now with Common Cause, believes the FCC should simply put out an NPRM to update the relevant rules, which haven't been revisited since the era of dark money and PAC spending, he told us. The legislation’s real “purpose” is to compel the FCC to act, Copps said: “It could be done in plenty of time for the bulk of the 2016 campaign.” Copps acknowledged the issue is both controversial and partisan within Washington but fiercely defended the need for the FCC to move forward. “I’m going to be spending more time on it,” Copps said. “It’s just something that needs to be implemented.” He blasted the “iron curtain of misinformation” that exists now. “I think people around the country would back it,” he added, suggesting opponents to the bill visit their home districts to encounter voters of all political parties interested.

“There is no meaningful chance,” Georgetown University Law School Institute for Public Representation Senior Counselor Andrew Schwartzman said of the legislation’s prospects. “Sadly, while measures like this used to have bipartisan support, that is no longer the case. What disappoints me is that Chairman [Tom] Wheeler is uncharacteristically timid about moving forward to use the FCC's ample existing authority to require vastly expanded disclosure of who actually pays for political ads. It just isn't like him to stand by in the face of clear violations of the law. I have heard him say that his job is to regulate when action is called for, but that isn't what is happening in this case.”

Wheeler “can lead,” as he showed on net neutrality, Copps countered. “It’s time to identify the sponsors. … You’ve got to have the names of these people, have disclosure.”

“I would think Wheeler has spent enough time in the hot seat on Capitol Hill to not want to take on campaign finance as an independent agency,” said Information Technology and Innovation Foundation telecom policy analyst Doug Brake. “These issues are outside the FCC’s technical expertise and better addressed by Congress directly."

Eshoo pressed for the legislation again this week. “When Congress passed the Communications Act, it clearly intended that the sponsors of broadcast advertisements be disclosed to the listener or viewer,” Eshoo said in an op-ed in the San Jose Mercury News. “But enforcement by the FCC has stagnated for decades. The problem stems from a weak interpretation of the disclosure rules in which editorial control is the test for who sponsored an advertisement.” Eshoo emphasized the start of the 2016 presidential campaign season and said the campaigns “could generate a record $10 billion in outside spending, including a sizeable portion of money for advertisements backed by front groups who keep their donors secret.”

Copps distanced the latest disclosure measures from the Disclose Act, a controversial and partisan campaign finance measure backed by Democrats in previous Congresses. “This is not the Disclose Act -- this is Section 317 of the telecommunications law,” Copps said. In the fall of 2013, Sen. Ted Cruz, R-Texas, derailed Wheeler’s confirmation for months with a hold, forcing Wheeler to declare that implementing the Disclose Act wouldn't be a priority for him. At an April 30 House hearing, Yarmuth told Wheeler that if Congress fails to advance the legislation, he hopes the FCC "would look carefully at what it can do with its existing authority" to provide transparency in this cycle.