King’s Take On Political Files Goes Astray

In her commentary of Feb. 22, Susan King, dean of the UNC School of Journalism and Mass Communication, made a number of statements about the pending FCC proposal to require stations to put their political files on the internet. Unfortunately, a number of Dean King’s claims reflect a lack of understanding about the FCC’s current rules, campaign finance laws and broadcasters’ responses to the FCC proposal.

King assumes that it is the FCC’s responsibility to make sure “the public know[s] who is paying for advertising for politicians who put themselves before the public in election cycles.”  Under our system, however, the agency responsible for disclosure of political spending is the Federal Elections Commission, not the FCC. The FCC’s role in campaign regulation is limited to ensuring that stations give federal candidates reasonable access; that they provide candidates with opportunities for air time equal to their opponents; and that they charge candidates during specified times the lowest rate available for the same amount and class of time.

Nothing in the FCC’s governing statute gives it responsibility for campaign finance. And both the FCC and the FEC have agreed that broadcasters are not, under either the Communications Act or the federal campaign laws, required to be unpaid enforcement agents for the FEC. King does not explain why that should change.

To be sure, stations are required to ensure that political ads identify their sponsor, but that does not require stations to investigate who is contributing to a candidate or an issue advertiser. In fact, while some have asked the FCC to require more extensive sponsor identification on political ads, nothing in the FCC’s current proposal would change the current rules.

King also blames the Supreme Court’s decision in Citizens United for the claimed lack of transparency. In Ira Gershwin’s words, “it ain’t necessarily so.” Citizens United did overturn the ban on corporate and union expenditures that directly supported or opposed a candidate in the periods before elections, but PACs and other independent organizations could raise and spend non-corporate money on elections prior to the Supreme Court’s decision.

And much of the money that has been spent by super PACs this year has not come from corporate treasuries and thus has not been the result of Citizens United. For example, the support for the Gingrich Super PAC by Sheldon Adelson and his wife appears to have come from their personal funds and could have been spent on non-coordinated ads before Citizens United.

As others have pointed out, King is mistaken when she claims that the amounts candidates and other political advertisers spend (at least those running ads relating to federal campaigns and national issues) are not public. In addition to the disclosures required by the FEC, the public inspection files of every broadcast station show the amounts that candidates and other advertisers paid for their ads. And during election cycles, those files are usually updated every day.

King decries what she says are the “broadcasting association’s knee-jerk reactions” to the FCC’s proposal. She apparently hasn’t checked her sources. NAB’s comments did not oppose putting some political file information on the Web. Instead, NAB questioned the burden of uploading the thousands of pages in a typical television station’s political file and the ability of the FCC’s computer systems to deal with the thousands of daily filings that would be required and make the results useful to viewers, and suggested that the FCC instead convene a working group to devise a system that would put political ad information on the internet in a more useful format and with less burden on stations. Indeed, a group of large TV broadcasters recently gave the FCC a specific proposal along those lines.

Finally, King ignores the question of why broadcasters — alone among the suppliers of goods and services to candidates and political advertisers — should be required to place their sensitive competitive information on the Web, when other suppliers are not required to disclose their rates at all. If transparency about campaign spending is the goal, shouldn’t the same rules apply to airlines, wireless communications suppliers, advertising agencies, printers, landlords, pollsters and other myriad suppliers to campaigns, many of which are also in regulated industries? 

Jack Goodman is a Washington communications attorney. He served as general counsel of the National Association of Broadcasters and has spoken about political broadcasting rules to numerous groups. He can be reached at [email protected].