Can Online Public Files Combat the Flood of Money in Elections?

Time for our own disclosure: Michael Copps and Andrew Schwartzman, mentioned below, are both compensated writers for Benton’s Digital Beat blog. Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation (IPR). A past Benton Foundation grant supported the Campaign Legal Center’s efforts to require broadcasters to make their public inspection files available online.

This week the New York Times reported on an explosion of spending on political advertising on television — set to break $2 billion in congressional races, with overall spots up nearly 70 percent since the 2010 midterm election. In fact, more political ads from outside groups have already aired during the relatively slow summer period of the 2014 Senate contests — roughly 150,000 spots through mid-July — than ran throughout the entire 2010 Senate elections. (1) The explosion is “accelerating the rise of moneyed interests and wresting control from the candidates’ own efforts to reach voters,” Ashley Parker reported.

Spending from outside groups has been on a swift ascent since the Supreme Court’s Citizens United decision in 2010, in which it ruled that the First Amendment prohibited the government from restricting political independent expenditures by corporations and other groups. The decision gave corporations and unions the green light to spend unlimited sums on ads and other political tools, calling for the election or defeat of individual candidates.

Congress first banned corporations from funding federal campaigns in 1907 with the Tillman Act. In 1947, the Taft-Hartley Act extended the ban to labor unions. But the laws were weak and tough to enforce. It wasn’t until 1971 that Congress got serious and passed the Federal Election Campaign Act, which required the full reporting of campaign contributions and expenditures. It limited spending on media advertisements. But that portion of the law was ruled unconstitutional — and that actually opened the door for the Citizens United decision.

In this, the first full midterm cycle where outside groups have developed a sophisticated infrastructure, the consequences are already becoming apparent: a harshly negative tone dictated by the groups and a nearly nonstop campaign season that could cause voters to tune out before Election Day.

“They have become a shadow party that’s effectively impossible to dislodge, and they will shape, if not control, the dialogue in key races and therefore nationally,” said Sheila Krumholz, the executive director for the Center for Responsive Politics. “All of this sets the stage for 2016.”

But some see a silver lining in the Citizens United case. Writing for the majority in Citizens United v. Federal Election Commission, Justice Anthony Kennedy said that transparency enables voters to make informed decisions and weigh different speakers and messages. "If anything, the court seemed to almost herald disclosure," said Tara Malloy, a lawyer at the Campaign Legal Center, which defends campaign finance laws.

On July 31, the Campaign Legal Center, Common Cause and the Sunlight Foundation (represented by the Institute for Public Representation of Georgetown University Law Center) called on the Federal Communications Commission to extend to cable and satellite systems the requirement that their political files be posted on the FCC’s online database.

In a petition for rulemaking, the watchdog groups noted political spending on cable has increased by one-third in each election cycle since 2008 and is expected to comprise roughly one-fourth of all political television spending in 2014. Furthermore, due to advances in technology, major satellite television providers have recently teamed up to sell household-specific “addressable advertising.” With the ability to “finely hone their TV pitches to individuals,” advertising campaigns are very interested.

About 90% of American households subscribe to paid television. The growth of cable and satellite systems has brought them into the fore and has made them appealing targets for political advertising. Despite this trend, only broadcasters must disclose political file information on the FCC’s online database.

Currently, broadcasters, cable, and satellite systems that air political advertisements must maintain public inspection files that include schedules of time purchased, when spots actually aired, the rates charged, the classes of time purchased and, in the case of “issue advertisements,” the members of the board of directors of the purchasing group, and the issue, election, and the candidate mentioned by the ad. This information is critical for voters seeking to determine who is paying to influence elections, especially given the proliferation of undisclosed spending by outside groups in recent election cycles.

As of July 1, all broadcasters must upload this information into the FCC’s online database. However, cable and satellite providers need only disclose this information at their offices, forcing journalists and the general public to make costly and often inconvenient trips to the stations for viewing. Because stations typically are open only during regular business hours, citizens seeking this information often are required to take time off from work to get it.

The petition filed this week asks the FCC to bring cable and satellite providers under the same online public disclosure requirements now applicable to broadcast television stations. This is particularly important because political campaigns, Super PACs, and other outside groups are increasingly advertising on cable and satellite.

“Too many Americans are left in the dark about who or what is bankrolling the sophisticated ad campaigns seeking to influence their vote,” said Meredith McGehee, Policy Director of the Campaign Legal Center. “Online access to these files poses no significant burden on stations. There is no compelling policy or legal argument to reject this petition for rulemaking.”

“This requirement is so minimal, it's a no-brainer. The FCC should implement it promptly and then move to require on-air identification of who is REALLY behind all these misleading ads,” said Michael Copps, Special Advisor to Common Cause's Media & Democracy Reform Initiative and former FCC Chairman.

The information about political ads purchased on cable and satellite is too important to keep locked in a filing cabinet," said Sean Vitka, Sunlight Foundation national policy manager. “Broadcasters are now required to put their political files online, and cable companies should be held to the same standard.”

"The FCC has broad powers to give the public more information about political advertising,” said Andrew Jay Schwartzman of the Institute of Public Representation of the Georgetown University Law. “This petition simply asks the Commission to use that authority."

Back in April, Schwartzman wrote A Primer on Political Speech and Broadcasting which appeared in Benton’s Digital Beat blog. In that article, Schwartzman examined broadcasters’ legal requirement to disclose on air who paid for a commercial. Schwartzman also noted that identification of the sponsors who are not candidates is a longstanding problem which has grown to be of great significance in recent years. Groups buying ads for elections, including ballot issues, usually give themselves a generic or positive sounding name (for example, “Citizens for Low Taxes”). FCC rules, however, require that broadcasters and cable operators

fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity by whom or on whose behalf such payment is made or promised,...

Conservatives make two broad points against disclosure. First, they say that donors have a First Amendment right to both political speech and anonymity, particularly if the money is small or if it doesn't go directly to candidates. The second argument: Some donors say they face retaliation from opponents who track them down through disclosure filings.

The Campaign Legal Center, Common Cause and the Sunlight Foundation, however, see many public benefits to disclosure. Requiring cable and satellite systems to upload their public and political files to an online database will increase access to those files by taking out the middlemen, physical travel, and time constraints inherent with the physical file. It will also alleviate the problems associated with a multi-tiered system of political ad disclosure. Currently, ad information is disclosed in different locations merely because of the platform on which the ad ran; this is a system that can create confusion. In addition, under current rules members of the public cannot obtain comprehensive data on political ad spending online; they must physically visit a cable station or call the satellite provider to find complete data. Expanding the amount of information available through the FCC-hosted database will improve public discourse and dialogue regarding political ad spending in general, and will allow the public to better engage in the democratic process.

The New York Times reported that there are no indications that the trajectory in political ad spending will change – and impact can be especially magnified during midterm elections because outside groups are not distracted by a presidential race and can allocate even greater resources to single congressional contests. In many cases, candidates in individual districts, or even states, are no match financially for groups that oppose their politics. The outside groups are dictating the terms and message of the 2014 contests, defining candidates long before the candidates are able to define themselves and start reaching voters.

It is also easier for outside groups and “super PACs” to run attack ads, leaving the positive message up to the candidates, and the result is an increasingly negative sheen to the general political discourse. “There’s no question that the sheer number of ads, combined with the fact that voters don’t know who’s paying for the ad, creates a layer of toxicity in our politics that is very corrosive,” said Sen Michael Bennet, (D-CO) chairman of the Democratic Senatorial Campaign Committee.

That portends a presidential campaign season when the first ads might well start soon after this November’s election, two years before votes are cast.

“It makes it harder for the campaign to control the message,” said Will Feltus, senior vice president for research and planning at National Media, a Republican media-buying company. “Somebody else can set the message agenda for the campaign.”

We’ll be tracking the dynamic between media and elections and the progress of the this latest FCC petition and we’ll see you in the Headlines.

Notes:

1. The top three outside groups alone — Americans for Prosperity, Senate Majority PAC, and the U.S. Chamber of Commerce — have already spent a combined more than $80 million in congressional races. Americans for Prosperity, backed by the conservative billionaire brothers Charles and David Koch, has spent $44 million on House and Senate races. Senate Majority PAC, which supports Democratic Senate candidates, has spent more than $22 million on Senate races, and the Chamber of Commerce has spent up to $17 million on House and Senate races.