FCC, prodded by “reformers,” moves to strengthen Super PACs

The Federal Communications Commission on Friday kicked out a rule that has the potential to increase the influence of Super PACs in the 2012 and future campaigns.

For many years, the FCC has required broadcasters to maintain a file of political advertising. This includes:

“(A)    whether the request to purchase broadcast time is accepted or rejected by the licensee;

(B)     the rate charged for the broadcast time;

(C)     the date and time on which the communication is aired;

(D)    the class of time that is purchased;

(E)     the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);

(F)      in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and

(G)     in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person.”

47 C.F.R. 73.1943.

Historically, these files have been kept at the stations. To inspect the files, one must visit the station. Now, however, FCC will now require television broadcasters to make their “political files” available on-line. The impetus for this new regulation has been a bit bizarre. It has been part of the disclosuremania sweeping the campaign finance reform movement since the creation of Super PACs under SpeechNow.org v. FEC and Citizens United v. FEC.

This is odd, because the political file has nothing to do with helping the public know “who is behind” advertising. All of that information is already required to be filed with the Federal Election Commission, which makes the data available on line. Under the new FCC, if “Americans for Reform” wants to buy ads from a station, it can do so, and it is no information about any of the donors to Americans for Reform goes into the public file at all. None. Read the required contents of the political file again. It has nothing to do with telling the public who is funding the party purchasing ads.

We doubt that the public really gains a thing by having the political file available on-line. But there is one group of people who might – Super PACs. By law, Super PACs cannot coordinate their activity with a PAC (Stephen Colbert and Jon Stewart may break the law, and get away with it because everyone knows it’s just theatre. But that doesn’t change what the law is for people who are seriously involved in the political world – for them, coordination remains illegal, subject to civil and criminal penalties). Still, it’s not hard for Super PACs – or indeed any old PAC, 527, non-profit, political party, or fellow candidate – to run a “parallel campaign” that largely compliments the campaign of a candidate. Put 10 political consultants in a room, tell them to elect candidate X, and they’ll come up with largely similar themes and strategies. It’s execution that separates best from the rest.

Still, if you are running an independent expenditure campaign, having information on all the candidate ad buys more readily available can certainly help you decide where, when, and how to deploy your own resources. So the new FCC disclosure doesn’t tell the public anything new about who is “behind the ads,” it doesn’t even tell the public anything more quickly about who is “behind the ads,” but it does tell independent campaign operators more quickly where and in what quantities the relevant political players are buying ads. And that might be a bit helpful in trying to make one’s independent campaign even more effective.

So why all the hullabaloo? We see a couple factors at work here, having nothing to do with “more disclosure.”

First, both reformers and political partisans simply want to establish the principle of FCC involvement in regulating political spending. The FCC, like most government agencies, is under control of the party ruling in the White House. The FEC, by contrast, has 3 Republican and 3 Democratic commissioners. The FEC’s unique structure was intentionally created to insure that neither party could pass rules affective elections on a straight party line vote. The FCC doesn’t have that check. Of course, the FEC’s bipartisan make up, by intent, makes it harder to pass rules. Reformers want to pass rules. Partisans want to pass partisan rules hamstringing their political opponents. And these are not entirely separate categories at all – in fact, they have substantial overlap. The campaign finance “reform” movement has long been about limiting the speech of political opponents in order to help attain substantive political goals. See Bradley Smith, Unfree Speech 118-121 (Princeton University Press 2001). Gaining the ability to pass campaign rules on partisan lines is no small achievement.

Second, the groups most likely to benefit from having the information available on line, as the FCC noted in its justification for the new rule, are groups seeking to comment on licensing renewal. In recent years, the political left has been calling for censorship of the political right. One way to do this is to pressure stations at the renewal stage, and the left is far more organized than the right in this activity. (Note that the public, in the form of individuals acting independently, plays almost no role in the process – whether or not a station is acting in the “public good” is debated by special interests). So the new FCC rule may provide some marginal benefit to the left’s efforts to drive conservative voices off the airwaves.

Finally, there is the “reform for reform’s sake” mentality that has overcome the “reform” community in recent years. “Reform” must be passed because it is “reform.” Disclosure must be pursued simply because it is “disclosure.”

But since the FCC rule adds nothing – literally nothing – to the publicly information available about the sources of campaign funds, don’t expect the hollering to stop.