FEC, FCC and 2016 (The Hill)

Broadcast stations made money hand-over-fist this year on political advertisements even though it was a non-presidential election year.   Spending on TV ads in federal and gubernatorial races topped $1 billion, according to the Wesleyan Media Project.  

One-quarter of that spending (about $250 million) came from groups that are supposedly independent of the candidates.  And $100 million of that spending came from “dark-money" groups that don't disclose their donors even though they are spending millions to affect the outcome of elections.  Of course, many of the ads aired by these non-candidate groups were negative, and many were run in barely masked coordination with a candidate.  For example, Kentucky Senator Mitch McConnell (R) and others put “B-Roll” on the Internet so that outside groups could copy parts of the footage and use it in their ads.  In North Carolina, the campaign manager of Senator-elect Thom Tillis (R)publicized a 1,000-word plan that detailed what kind of ad buys were needed to assist the Tillis’ campaign.  Yet, somehow we are supposed to believe there was no coordination. 

The Federal Election Commission (FEC), the agency charged with enforcing campaign finance law, including laws against illegal coordination, was AWOL.  The FEC remains frozen in partisan deadlock over what constitutes illegal coordination under the law, even though numerous examples in plain view could not pass the laugh test.

With the FEC unable or unwilling to do the job it was created to do, a different federal agency now has the opportunity to play a leading role in responding to the new political campaign landscape after the Citizens United decision upended 100 years of campaign finance jurisprudence.  That agency is the five-member Federal Communications Commission (FCC), which is charged with regulating our nation’s TV and radio stations and already has a longstanding mandate from Congress to disclose the deep pockets behind the ads. 

There are three issues awaiting action where the FCC can issue rational guidelines to replace outdated rules and regulations. 

Disclosure has been a bedrock requirement for programs and advertisements run on the airwaves. “Sponsorship identification requirements were first imposed upon broadcasters by the Radio Act of 1927 and the basic purpose of such requirements has not changed since that time,” the Commission wrote in 2000.  “Listeners [and viewers] are entitled to know by whom they are being persuaded.”  The Commission stated: 

The Commission’s “strict identification requirements” should not be relaxed because “[p]aramount to an informed opinion and wisdom of choice . . . is the public’s need to know the identity of those persons or groups who elicit the public’s support.”  

Yet, currently, the FCC is allowing TV station owners to ignore their statutory obligations to reveal the "true identity" of the sponsor of an ad.  

The Campaign Legal Center, Common Cause and the Sunlight Foundation, represented by the Institute for Public Representation at Georgetown Law, filed complaints against stations that during the 2014 campaigns failed to include the true identity of ad sponsor even though that information was readily available to the station.  These complaints are pending.  In the aftermath of the Citizens Uniteddecision, dark-money spending on ads is expected to explode in the next presidential election, so it is even more important for the FCC to update sponsorship identification rules. 

Another area ripe for action is for the FCC to finish its proceeding on getting the political files online. TV stations have been required to maintain these files, which include information about ad costs and buys, and to make them publicly available as a means of ensuring compliance with rules governing ad rates for candidates and access to the airwaves.  Responding to petitions filed by the Campaign Legal Center and other members of the Public Interest Public Airwaves Coalition, the agency now requires all television broadcasters to upload their political files information to a FCC database. 

But broadcasters are continuing to drag their heels about providing the information in the online political files in a database format with standardized fields.  Instead, they insist on filing “pdf’s.”  Thus, the information in the political file is not sortable or searchable; instead, analyzing and understanding the data involves an enormous undertaking, going through each pdf and “scraping” the information to try and make sense of it.  So the FCC’s job on this issue is not done. 

Lastly, the FCC should require cable, satellite and radio to also place their political files online.  While most political ads air on broadcast TV, the number of ads on these other outlets is growing significantly as campaign consultants attempt to reach specific segments of voters that can be targeted more easily through these media.  The Commission is currently considering a proposed rule but has yet to send it out for public comment.  

With the 2014 mid-term elections over, the 2016 race for the White House will begin immediately.  It won’t be long before ads intended to influence the outcome of that election start to air in battleground and early primary states. 

With the FEC mired in dysfunction and Congress deadlocked, whether or not the American people have accurate information about the funders behind the millions of dollars spent on ads to influence their votes largely rests with the FCC.  It is time for the Commission to step up.

McGehee is policy director of the Campaign Legal Center and heads McGehee Strategies, a public interest consulting business.  This opinion piece originally ran in The Hill on November 26, 2014. 

 To view it there, click here.