Regulating Political Advertisements: Looking Beyond the FEC

Over the past several election cycles, the statement that “I’m John Smith, and I approved this message” has become a ubiquitous part of the political lexicon. If the Media Access Project has its way, however, a whole new series of disclosures will become just as familiar to the American public.

On March 22, the Media Access Project (MAP) filed a Petition for Rulemaking with the Federal Communications Commission (FCC) that seeks to change the regulations for political advertisements – an area traditionally overseen by the Federal Election Commission (FEC). If adopted, the proposal would be an expansion of the FCC’s power to regulate in the political arena, a clear effort to avoid the deadlocked FEC. The FCC regulates communications technologies and, in recent decades, the Internet.

Until 2008, the FEC had operated with a surprising degree of efficiency, considering the challenges inherent in its setup. No more than half of the commission’s six members can be drawn from the same political party, and the agency may act only on a supermajority vote. Nevertheless, as a 2009 Washington Post editorial put it, "deadlocks have tended to arise sporadically, and in ideologically or politically charged cases, not in run-of-the-mill enforcement actions."

Before 2008, the FEC was able to reach a decision more than 98 percent of the time, according to an editorial in Roll Call. However, over the past two years, this collegiality has begun to break down: the agency deadlocked 16 percent of the time in 2009 and 11 percent of the time in 2010. A March 10 New York Times editorial lays out two of the most recent examples: on March 4, the FEC was unable to approve its professional staff's two recommendations for enforcement actions against state political parties (the Kansas Republican Party and the Georgia Democratic Party) that had clearly violated campaign finance laws.

The entrenchment seems to be about more than partisanship. According to a letter sent to President Obama by a number of campaign finance groups on March 15, half the current commissioners are "ideologically opposed to the campaign finance laws." One year after the Citizens United v. FEC decision, the FEC has failed to approve either of two proposed rules which would have started the process of putting the U.S. Supreme Court’s decision into law. This paralysis is beginning to have real consequences: it now appears likely that the 2012 campaigns will be conducted without any guidance interpreting Citizens United.

FCC as an Alternative

The Media Access Project – which is led by a former FCC commissioner – has petitioned the FCC to impose new disclosure requirements on political advertisements. MAP proposes that broadcasters be required to:

  • Disclose the identity of all donors contributing at least 25 percent of the funding for a political advertisement
  • Maintain a list of all donors contributing at least 10 percent of the ad's funding
  • Obtain sworn statements from political advertisers about their largest sources of funding

The FCC, which is comprised of three Democratic and two Republican commissioners, is expected to be receptive to the proposal. Two Democratic commissioners have already announced that they will support the measure, while the Republicans are expected to oppose it. The chairman, Julius Genachowski, who has declined to publicly comment on the petition, was a major bundler for Obama’s 2008 campaign.

Not unexpectedly, groups who have opposed other proposals to increase campaign finance disclosures have raised concerns about MAP’s petition. They also raise practical considerations about the petition: that it would create different rules for broadcast advertisements than other kinds (for example, direct mail or online advertisements) and that groups that receive non-targeted donations would be required to arbitrarily select which of their donors to identify in any particular ad.

There are, of course, very real concerns about encouraging the FCC to depart from its current practice of deferring to the FEC to regulate campaign advertisements. However, the petition makes one thing clear: advocates for better disclosure of political spending are seeking creative solutions to the gridlock that currently paralyzes the FEC.

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