Lawyer Article

Excerpt
Are broadcasters required to “investigate” and announce the true identity of those who fund political action committee ads?

Two years ago, the Supreme Court struck down a decades-old ban on corporate political advertising (including incorporated trade associations and non-profits) that expressly advocates the election or defeat of a federal candidate in Citizens United v. Federal Election Commission. Even the lawyers representing Citizens United could have had little understanding of what it would bring, and the new issues it would cause for broadcasters.

Citizens United overturned the McCain-Feingold law’s ban on corporate-funded “electioneering communications” – broadcast ads that refer to a candidate and run in the periods immediately before federal elections.  In that case, we represented 10 state broadcaster associations to urge the court to overturn the McCain-Feingold provision that allowed such advertising in print, but not in broadcasting.  We thought that was unfair and unconstitutional discrimination.  What has emerged is a group of new corporate entities that collect unlimited funds for advertising for and against candidates and whose sponsorship identification announcement is comprised only of its corporate name. 

What is required for sponsorship identification?

This practice has led to substantial criticism and calls for full disclosure of the entity and its donors.  Public interest groups have been particularly critical of what they deem to be a lack of transparency.  See for example: Presidential Super PAC Disclosures May Leave Voters In The Dark, an article by Sunlight Foundation, a nonprofit, group that describes itself as a nonpartisan Washington, D.C.-based organization that uses cutting-edge technology and ideas to make government transparent and accountable.

In a recent article in the political newspaper Politico Newton Minow and Henry Geller took PAC advertising practices to task.  If they’re right, then a lot of broadcasters could be in serious trouble, as their article seeks not only to impose a greater burden on the broadcaster than is required under the law, but would have their readers believe that such a burden may already exist. The article criticized “television and radio ads broadcast across the nation by groups trying to hide the real sources of the thousands or millions of dollars behind them.”  They cite, for example, $450,000 in TV commercials in two congressional races sponsored by the “Ending Spending Fund” that was underwritten by one donor, who sponsored more than $1 million in campaign ads.

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About the author
Mr. Skall regularly represents broadcasting stations in their regulatory dealings with the Federal Communications Commission in their commercial business dealings. He is a frequent author on broadcasting and the law and is published in Radio Business Report/Television Business Report and AllAccess, where his column “FCC Uncensored” is a regular feature. Follow Gregg on Twitter @Commlaw.