Political Ad Funders Must Not Dodge Scrutiny

[Commentary] Thanks to the Supreme Court’s decision last year to allow corporations and unions to make unlimited campaign contributions, Americans in the coming year may be blitzed by $1 billion of essentially anonymous television ads. Sponsors will hide behind the facade of made-up names for empty organizations. Why? So voters can’t question messages because of ad buyers’ motives. Congress or the Federal Communications Commission could guarantee the common-sense right to judge a political message by the intent of the messenger. But the Republican-controlled House of Representatives has no intention to pass such a disclosure law.

Indeed, Greg Walden (R-WA), chairman of the House committee with jurisdiction over the FCC’s budget, has promised to go “nuclear” with budgetary reprisals if the commission dares require full identification of campaign ads’ funders. No one questions the FCC’s authority under existing law to pierce the veil by requiring companies that buy ads to say where their revenue comes from. The FCC could require this information be included in broadcasters’ existing political files. If ads are being placed by conduit companies that rely on political campaign placements for 70 percent or more of their business, the disclosure would have to reveal the entity ultimately responsible for the political speech in question. As the FCC politely suggested this week, that political file could go online. This enhanced disclosure requirement would embody the deal struck by the Supreme Court in Citizens United: Transparency provides balance. One of the FCC’s five commissioners understands the case for action. As Commissioner Michael J. Copps puts it: “Democracy is not well-served when those who are attempting to manipulate our political dialogue through unidentified advertising won’t even stand up and tell us who they are. The fissures in our democracy will continue to widen if big money retains its unchecked influence in our elections.” The FCC’s other four commissioners should heed his warning. Voters should insist on bold action in the public interest, now.

[Crawford is a professor of law at Cardozo School of Law]