Typically, the bipartisan FEC is tasked with enforcing campaign finance laws. The FCC, an agency dominated by political appointees, should not be allowed to upset the Congressionally-created balance that ensures even-handed application of election law. The FEC also takes the administrative lead on campaign finance laws because it has a track record on the issue. Complex regulations can chill political speech, especially if they’re poorly drafted.
The Media Access Project (MAP), which filed the FCC rulemaking petition Tuesday, asked the FCC to require political groups to recite on air the names of donors who provide 25 percent or more of the funds to run their advertisements. The rule would also require a list of all persons providing 10 percent or more of an ad’s funding to be filed with television stations.
MAP argues that the Supreme Court’s decision in Citizens United v. Federal Election Commission, which held that the government cannot prohibit independent political ads by advocacy groups, created a need for the proposal. But Citizens United didn’t change campaign finance disclosure laws - they remain on the books. Political groups must file reports with the FEC and issue disclaimers on their ads.
Some argue that the disclosure laws don’t go far enough. Last year, Congress twice declined to pass the DISCLOSE Act, which would have implemented an even more onerous disclosure and disclaimer regime than the MAP proposal. For more than a year, the FEC has attempted to amend its regulations to address Citizens United, but the process has stalled as pro-regulation commissioners insist on expanding disclosure regulations without Congressional authorization.
Beyond the political power play, MAP’s proposal has serious practical flaws. Essentially, it would require groups running broadcast ads to commit disclosure fraud. Most donors to groups provide funding for general operations, not specific ads. This rule would force groups to arbitrarily select donors, who may have nothing to do with the ad, and cite them as the source of the funds. This phony disclosure amounts to government dictation of the political speech of individuals and associations - and would mislead the public.
Moreover, it’s not clear whether the proposal would force disclosure of the funding for the entire group or disclosure for every ad, forcing groups to re-cut ads and file new forms with television stations every time their donors change under the thresholds.
Another problem is that in an era of new media, this proposal would create different rules for broadcast communications than for Internet ads, direct mail and other forms of campaign communications, requiring groups to comply with a more complicated array of regulations to speak out on politics.
The balance of power on this proposal lies with FCC Chairman Julius Genachowski, one of the three Democrats on the five-member FCC (his spokesman declined to comment on the proposal). Commissioners Michael Copps and Mignon Clyburn have already announced their support for the proposal. The FCC’s two Republican Commissioners, Robert McDowell and Meredith Attwell Baker, are expected to oppose the policy.
Genachowski bundled more than $500,000 for President Obama’s campaign, and he has visited the White House at least 81 times. Pro-regulation interest groups claim that additional FCC regulation is needed to “reform” the campaign finance system. But it’s not “reform” for one of President Obama’s closest allies to muscle through a new political regulation just in time for his re-election.
It’s not clear that Genachowski wants a fight on this issue, as he recently waged a contentious battle over another regulation that pushed the bounds of the FCC’s jurisdiction.
During the 2008 campaign, President Obama promised to enact “net neutrality” laws via the FCC. Under “net neutrality,” the government forces all Internet service providers to give equal access to all websites, regardless of content or bandwidth concerns. But a federal judge ruled in 2010 that the FCC had no statutory authority to impose “net neutrality.” Despite that rebuke, the FCC’s Democrats forced a vote late last year to essentially sidestep the court’s ruling.
Ultimately, this unprecedented disclosure regulation would discourage political speech. The FCC should decline to overstep its jurisdiction and reject MAP’s request.
Parnell is president of the Center for Competitive Politics, a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights.