Information You Need to Make Up Your Own Mind (The Huffington Post)

Meredith McGehee
Oct 14, 2014
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"... [A]s far back as the Radio Act of 1927 and continuing with Section 317 of the Communications Act of 1934 there has been an unvarying requirement that all matter broadcast by any station for a valuable consideration is to be announced as paid for or furnished, and by whom." -- Federal Communications Commission, Sponsorship Identification Rules, 1975

Want to know who is attempting to influence your vote?

Better get your magnifying glass and don your "deerstalker" hat (a la Sherlock Holmes) and get ready to play private investigator. As things stand now, the burden is on you to figure out who is funding the ads inundating your television and attempting to influence your vote, despite long-standing laws and regulations that clearly state that broadcasters have an obligation to ascertain the "true sponsor" of the ads they run on those airwaves.

Just recently the Media Bureau of the Federal Communications Commission (FCC) gave them a pass. They ruled that the burden of accurately determining who is sponsoring a political advertisement rests on the viewing public, not the broadcasters, and that viewers must present "credible, unrefuted evidence" to the broadcasters that the entity identified on air as responsible for an ad is not in fact the "true sponsor."

That is why the Campaign Legal Center joined with the Sunlight Foundation and Common Cause last week to urge the FCC Commissioners to overrule their own bureau and instead to pursue our complaints against two broadcast stations. The two stations failed to identify the "true identity" of the sponsor of ads they aired. In both cases, the source of the funds for each of the entities running the ads was a millionaire easily identified through a Google search or, in one case, even a reading of the station's own news reporting as the sole funder of the group sponsoring the ads.

At stake is the bedrock principle of sponsorship identification the FCC, which is supposed to enforce the laws and regulations, set out for broadcasters more than 40 years ago.

This fundamental principle is being violated every day by broadcasters who air ads from Super PACs and from dark money groups that don't disclose their donors and spend millions of dollars on political ads to influence of elections. Viewers only see and hear names of amorphous entities that give few clues as to where the money for the ads is actually coming from and who is attempting to influence their votes. Meanwhile, the agency charged with holding the broadcasters accountable is AWOL and will stay that way if the Media Bureau's decision isn't reversed.

Should the Commissioners fail to correct the Media Bureau's misstep, they will be willfully ignoring a series of Supreme Court's ruling that have upheld disclosure. Just this year in McCutcheon v. FEC the Court stated that disclosure requirements are in part "justified based on a governmental interest in 'provid[ing] the electorate with information' about the sources of election-related spending" and help to "deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity."

In 2010, the Court concluded in Citizens United v. FEC that disclosure requirements are an appropriate and constitutional mechanism to "insure that voters are fully informed' about the person or group who is speaking." And in the 2003 case,McConnell v. FEC (2003), the Court held that disclosure of contributors is necessary "so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections." The Court agreed that robust speech cannot occur "when organizations hide themselves from the scrutiny of the voting public."

Despite these decisions, the Media Bureau took the position that broadcasters can meet the disclosure requirements so important to our country's democratic discourse merely by relying on plausible assurances from the persons paying for the time that they are true sponsors. Moreover, the Media Bureau asserted that members of the public must present evidence directly to a broadcaster that a political advertisement violates the sponsorship identification requirement.

In essence, the Media Bureau decided that the "reasonable diligence" required by law and regulations is no diligence at all. They excused broadcasters from their duty to obtain sponsorship identification and transferred this duty to members of the public.

The Media Bureau's position on this complaint is a significant retreat. In the 1970s, the FCC moved to strengthen sponsorship identification requirements, stating "the importance of emphasizing the duty of licensees to look beyond ostensible sponsors warrants ... repetition." The Commission added:

The point is not whether some burden is involved, but rather whether that burden is justified by the public interest objective.... Broadcasters are licensed to act as trustees for a valuable public resource and, in the view of the public's paramount right to be informed, some administrative burdens must be imposed on the licensee in this area. These burdens simply 'run with the territory.'

The Media Bureau also tried, unconvincingly, to hide behind what it terms "sensitive" First Amendment interests. However, broadcasters' failures to fulfill their responsibilities for accurate disclosure are not a First Amendment issue. First, sponsorship identification requirements are content neutral -- they apply to all paid-for advertisements regardless of content. Secondly, broadcasters have no First Amendment interest at stake in this instance because they are not expressing their own views or exercising editorial functions when they air paid political ads. And thirdly, as the Supreme Court stated in the Red Lion case in 1969, it is First Amendment rights of "viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail."

FCC Chairman Tom Wheeler and his fellow Commissioners have an opportunity to protect transparency and accurate disclosure in our democratic system that is drowning in dubious money and hidden agendas. The Commissioners should overrule the Media Bureau's erroneous decision and ensure that viewers whose televisions are being inundated by political ads from unknown sources have the information they need to make up their own minds.

Meredith McGehee is Policy Director at the Campaign Legal Center. This piece also ran in The Huffington Post on October 10, 2014. To read it there, click here.

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