Real Disclosure for Real Democracy

From the desk of
Michael Copps

America, we have a problem: billions of anonymous dollars pouring into a tsunami of negative TV advertising aimed at distorting political campaigns and manipulating election outcomes. Our civic dialogue—the prerequisite of successful self-government—is being short-circuited by deep-pocketed individuals, corporations and other groups operating on the smug premise that elections should be bought by the power of money rather than fought by the power of ideas.

If a special interest group masquerading itself as “Citizens for Purple Mountain Majesties and Amber Waves of Grain” is in reality the mouthpiece of a company refusing to clean up a toxic dump or an industry pouring sludge into the Great Lakes, don’t we as citizens need to know that? Don’t we have a right to know that? Identifying the true sponsors of these ads—liberal as well as conservative, Democratic as well as Republican—ought to be high on democracy’s 2012 agenda.

But the likelihood of substantial corrective action being taken this year has been high-jacked by powerful players in the broadcast and cable industries that stand to make billions—that’s with a “b”—from Super Pacs and other special interest groups. They have already made sure the debate takes place on their terms and turf.

So the debate today is not whether to require the actual identity of those individuals and groups financing this desecration. Instead it is about whether the currently-required, tip-of-the-iceberg and altogether skimpy political files on campaign sponsorship should be moved from the station’s file cabinet and put online. Well, of course they should. That much is a no-brainer.

The present files, for whatever they are worth, should have been online years ago. This can be easily and inexpensively accomplished, in spite of big broadcaster grousing about how costly it would be. Compared to the millions of dollars stations are raking in during this profligate political year, the cost is barely pocket change. Even though they would like us to believe they are still operating as little mom and pop studios where everything is written out in long-hand on yellow pads, most stations have long-since moved to electronic record-keeping. They have gone digital just like everyone else, and putting this information online is no burden. It’s how the Twenty-first century works.

Here’s an analogy: when I was a student (admittedly many years ago!) and needed to check out a book, I would have to hike over to the library, sort through the card catalogue, ascertain whether the library carried the book, and verify if it was available or checked out. Then I would either go to the stacks to find it or wait for the librarian to help me. Nowadays, I go online from home or wherever I happen to be and in an instant I discover whether the library carries the book and if it is available—and if I can simply get what I need online. Getting station records should be no different. What possible reason is there for us not being able to access broadcast and cable records online instead of traipsing down to a station’s sometimes-distant main studio and hoping someone there will help us out—assuming they can find the records?

So, yes, let’s require that immediately. And let’s make sure the Federal Communications Commission (FCC) puts those records on a searchable database so that concerned citizens can at least aggregate how much money is being spent and perform at least some initial studies and comparisons. But let’s not be lulled into thinking the debate ends here. This little fix is nowhere near the reform that democracy requires. It doesn’t even come close. It puts no real discipline on the corruption of our political system by unidentified special interests. What I want to know is not that “Citizens for Purple Mountain Majesties and Amber Waves of Grain” paid for an ad. I want to know who is bank-rolling that fine-sounding group. I want to know who is writing the checks to finance these committees and what their agenda is so I can decide how much credibility to attach to what they are purveying. Without such disclosure, we have neither increased our knowledge nor brought accountability to our deeply-challenged democracy.

The FCC already has the authority to dig deeper. It has rules regarding sponsorship generally and political advertisements specifically. These rules require that broadcast and cable political ads must “fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity” paying for them. What was the rationale for this? It was “because listeners are entitled to know by whom they are being persuaded.” You’ll find this is Section 317 of the Communications Act (47 U.S.C. § 317). I don’t believe “true identity” means pawning off some front group as the sponsor.

Interestingly, if a soft drink maker or an automobile manufacturer pays to have its products shown on a program, this information must be disclosed to the viewing public. That’s because the FCC has product placement disclosure requirements on its books. This is exactly as it should be. But if we can be concerned about the impact on viewers of a can of soda or the latest turbo-powered sports coupe, shouldn’t we be even more concerned when someone is trying to manipulate voter choice?

In this era when money commands perhaps more power than in any period of our nation’s history, including even the notorious Gilded Age of the late Nineteenth century, sponsorship identification strikes me as a rather modest requirement. It would be better to have real limits on campaign finance, but the Supreme Court has told us in Citizens United that this is not going to happen any time soon. Instead corporations are persons again, money is free speech, and democracy is diminished.

But note this: even the Supreme Court, in the egregious ruling cited above, stated that “Disclosure is the less-restrictive alternative to more comprehensive speech regulations.” If the High Court itself is willing to go there, why aren’t we teeing up real disclosure instead of settling for a big media-defined debate about putting those current skimpy records online? Instead of entertaining ridiculous claims about the awful burdens disclosure would put on stations, shouldn’t we be more concerned about the burden put on citizens and their democracy? And isn’t this especially true in these times when factual reporting and accountability journalism are more the exception than the rule? Negative ads are a sorry substitute for meaningful election year coverage.

Once a decision is made for real donor disclosure, we can quickly design the best methods to use. I am confident that many options will be forthcoming, such as disclosing the identity of any individual or entity that funds X percentage of an ad or deciding on a dollar level of donor support that triggers disclosure. There are options aplenty—it’s the commitment to act that is lacking.

Open government can only work when the people trying to kidnap the election process are required to tell us who they are. The fissures in our democracy can only widen if anonymous money retains its unchecked influence and lack of accountability. Let’s bring our campaigns and our country into the bright sunlight of full disclosure. This is one of those “if not us, who?” and “if not now, when?” moments.

One final point. As The New York Times has reported, the current orgy of political ads is driving evermore media consolidation. With visions of sugarplum profits dancing in their heads, big media companies are snapping up more and more stations around the country. That’s bad news for smaller, independent broadcast and cable companies and even worse news for localism, diversity and competition. Thirty years of rampant consolidation have decimated newsrooms, destroyed the muscle of investigative and accountability journalism, and stunted our civic dialogue. How much more damage has to be inflicted before we understand the necessity to say “No!” to more media consolidation and “Yes!” to some honest-to-God public interest oversight?

Michael Copps served as a commissioner on the Federal Communications Commission from May 2001 to December 2011 and was the FCC's Acting Chairman from January to June 2009. His years at the Commission have been highlighted by his strong defense of "the public interest"; outreach to what he calls "non-traditional stakeholders" in the decisions of the FCC, particularly minorities, Native Americans and the various disabilities communities; and actions to stem the tide of what he regards as excessive consolidation in the nation's media and telecommunications industries.