Super PACs Bring Big Bucks, Responsibilities

A week ago here, I said that earlier primary elections, and the increase in “super PACs” spawned by last year’s Citizens United Supreme Court ruling are changing the face of the 2012 election cycle for television, radio and cable. That column focused on earlier primaries. Today’s focus is mainly the rise of super PACs and their implications for stations and legal compliance. But first, let me give you a quick update on the primaries.

Iowa has unofficially indicated its caucus will be on or near Jan. 3, leaving New Hampshire in the difficult position of choosing either Jan. 7 or moving to December 2011. Even if New Hampshire chooses Jan. 7, these will be the earliest primary and caucus dates in U.S. history, though only by one day. A December 2011 primary means a lowest unit charge period starting in November, or perhaps even late October.

In addition, Utah just moved its primary later in the calendar — to June 26, 2012, the latest primary date in history. Utah did this to cut polling costs by holding its presidential primary and local elections simultaneously. Whether other states will extend the primary season even closer to the general election remains to be seen. 

The early start and late finish of the primary elections extends, in both directions, the periods of political ad spending and the need for media outlet compliance with FCC and Federal Election Commission (FEC) election ad requirements. Intensifying this is the growth in the number and funding of super PACs on a scale that is likely to dwarf their role in the 2010 elections, which were the first to have Super PACs.

Now on to the super PACs.

What are super PACs and how will they affect the 2012 political season?  The Supreme Court’s Citizens United decision paved the way for this new species of political action committee. Traditional PACs must follow strict contribution limits; could not explicitly oppose or support specific candidates; and have been used largely to donate funds to individual campaigns. In stark contrast, super PACs can collect unlimited amounts of money from corporations, unions and individuals to directly support and attack candidates, as long as they do not coordinate directly with candidates.

The first super PACs demonstrated their spending power in the 2010 elections. American Crossroads, a super PAC connected to Karl Rove, and affiliate Crossroads GPS spent $70 million on 2010 congressional races. The same group has raised $25 million this year, which it is already spending on advertising, and hopes to raise $240 million before 2012. 

Many more super PACs, spending a lot more to support or attack candidates or take positions on issues, are expected in 2012. As a result, super PACs could even eclipse candidate spending.

Republican super PACs have already raised millions ready to be spent on primaries. Examples include The Restore Our Future PAC, Keep Conservatives United and Citizens for a Working America, each of which supports an opposing presidential candidate. The Make Us Great Again PAC plans to spend $55 million supporting Rick Perry’s presidential run, and is only one of at least six super PACs designed to support him.

Given that President Obama is the presumed Democratic nominee, there has been less action from Democratic super PACs around the primaries. However, Democratic super PACs are also growing in numbers and funding. 

For example, Priorities USA Action, formed by former White House aides, plans to raise $100 million during the campaign. Texans for America’s Future, founded by a Democratic consultant, exists solely to oppose Rick Perry’s candidacy.

Not all super PAC spending will focus on the presidential race. The newly formed FreedomWorks for America plans to raise $20 million during to support Tea Party-affiliated candidates, including those for the U.S. Senate in Arizona, Texas and Florida.

Though the fundraising is still heating up, the new-style PACs have already opened their war chests to buy television spots. Priorities America has run ads as far back as May 2011, including an ad opposing Romney. Stephen Colbert’s super PAC, Americans for a Better Tomorrow, began as a joke on his Comedy Central show, ran anti-Perry ads before Iowa’s Ames Straw Poll in August.

Media legal compliance vis a vis super PACs. Here is a non-exhaustive list of things stations and cable systems should keep in mind:

Stations have broad discretion to accept or turn down candidate-targeted (and issue) ads by super PACs and other “third party,” non-candidate advertisers. Only legally qualified candidates for federal elected office have a right to “reasonable access” to air time. The “no censorship” rule applies only to ads by candidates, federal, state or local. Non-candidates are never entitled to lowest unit charge ad rates, which need to be provided only to legally qualified candidates or their authorized committees.

This broadcaster discretion was demonstrated in Iowa. WOI Des Moines refused to air the Colbert super PAC ad against Perry, exercising the station’s ability to refuse ads that it finds to be not in the public interest. The station declined because it felt the ad would confuse viewers.

Contrast this to the no-censorship law applicable to federal and other candidate ads. No matter how much against the public interest a station considers a legally qualified candidate ad to be, the station must run it as presented. At most, the station may precede the ad with a disclaimer that the station is required by law to air the commercial, and/or a parental or other warning that the ad’s content may not be suitable for children and others.

It is also possible to suggest to a candidate that its ad be “channeled” to a different time than the candidate requests, such as the “indecency safe harbor” from 10 p.m. to 6 a.m. when children are thought to be less likely to be in the audience. This must be done very carefully, however, so that it does not produce a complaint to the FCC of prohibited censorship.

Because stations have the ability to refuse third-party political ads, or to accept them only if changes are made in them, broadcasters and cable operators are not protected from liability for the content of those ads, including libel and slander.

Whenever a third-party ad advocates for or opposes a clearly identified candidate, there should be: 1) Sponsorship identification (“paid for” or “sponsored by”), an FCC requirement, and 2) “this advertisement is not authorized by any federal candidate,” an FEC requirement. Each type line of identification must occupy at least 4% of the screen, for no less than four seconds.

FEC requirements specify what advertisers must disclose in ads that oppose or advocate election of a specific candidate. They are, however, enforced against candidates and advertising purchasers, and broadcasters are not currrently held liable for monitoring advertiser compliance with those FEC rules. For a description of the FEC notice rules, see its Special Notices on Political Ads and Solicitations.

Broadcasters must maintain in their public file the names of the officers of super PACs that sponsor ads.

Remember to check state and local laws for any additional requirements that may apply to advertising by third parties such as super PACs to support or oppose a candidate for state or local elective office.

Assure that your treatment of all super PACs is the same. Don’t apply different standards to those favoring one candidate or another, or one party or another. Stations must operate in the public interest, and lopsided access by organizations on one side of electoral or other questions could lead to complaints.

This column on TV law and regulation by Michael D. Berg, a veteran Washington communications lawyer and the principal in the Law Office of Michael D. Berg, appears periodically. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at 2101 L Street, N.W., Suite 1000 Washington, D.C. 20037; [email protected]; or 202-530-8560. Read more of Berg’s Legal Memos here. Georgetown University Law Center legal intern James Kleier Jr. contributed to this article, [email protected].

Note: This column provides general guidance only and is not a substitute for individualized legal advice for particular situations.