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Broadcasters Betray Trust With Citizens United

On Feb. 15, Leslie Moonves, the brilliant CEO of CBS, gave a piece of good news to investors — there would be an addition to the bottom line in 2012 of about $190 million, thanks to huge spending on political commercials coming into the network and its owned and operated affiliate broadcast stations.

Moonves got the number by estimating that the spending for political spots would hit $2 billion and that CBS would garner 9 percent to 10 percent of that.

Moonves, to his credit, decried what has happened to political discourse and did not embrace the scorched-earth messages that will dominate the airwaves this year. But he did shed light on a dynamic that most broadcasters do not want to talk about — these guardians of the public interest over the public airwaves are perhaps the biggest beneficiaries of the post-Citizens United trash heap of vicious ads that will be the biggest phenomenon of the 2012 elections. And now we are discovering daily that broadcasters are among the biggest enemies of transparency that would at least shed light on who is funding the ads.

In the Citizens United v. Federal Election Commission case, the Supreme Court voted 5-4 to enable corporations and unions to intervene directly in the election process in a way corporations had been unable to do since 1907 and unions since 1947. But the court, by an 8-1 margin, endorsed robust disclosure as a disinfectant against the unlimited spending it unleashed. Since then — thanks to subsequent judicial decisions, the feckless FEC and the failure by the IRS to enforce its own regulations — disclosure has become a farce.

Voters this fall, especially in battleground states, are going to be deluged with awful spots, with a majority of them likely to come from groups with innocuous names such as Crossroads GPS, that will end with the disclaimer that it was paid for by an organization unaffiliated with any campaign or candidate. But voters in most cases will have no idea who is behind these ads or funding them.

To pick one prominent example among many: Karl Rove’s group, American Crossroads, is an openly political organization that is required to disclose its donors. He set up the separate Crossroads GPS to provide a safe haven for the wealthy individuals and corporations that wanted to give their money in a stealth fashion. This violates the spirit of Citizens United. But it also, in my view, violates the law and IRS regulations when it comes to what
501(c)(4) groups are permitted to do.

What to do about this? One avenue is to use existing precedent and regulations to enhance disclosure. That is where broadcasters and the Federal Communications Commission come in.

Broadcasters, as part of their public interest obligation, for decades have had to put information on who is funding the political ads they run and the rates they pay into their public file — a file ostensibly accessible to anyone who wants to see it. But those files have been kept in paper form in a back room at individual station offices — and as lawyers and public interest and academic researchers have discovered, the stations routinely deny access to them.

FCC Chairman Julius Genachowski has proposed that the biggest stations in the larger markets — i.e., the ones that air the most ads and reap the financial benefits — put this same information online and make it accessible through their own and the FCC’s website.

And, as Justin Elliott of ProPublica has detailed, the largest and most well-heeled broadcasters (other than CBS) are howling in outrage and spending a fortune hiring lobbyists to keep that from happening. They claim it would be an onerous financial burden. The opposite is true — it would cost no more for a station to key the numbers into a computer than to write them out by hand and file them away.  

Broadcasters also say this would reveal sensitive pricing information (in an outrageous and embarrassing comment, Allbritton Communications Co. executive Jerald Fritz said it would lead to “Soviet-style standardization” of ad sales).

The problem with this line of attack is that all of the information on ad sales has been part of the public file for decades. So, in effect, broadcasters such as Fritz are admitting that their existing public files are themselves a farce — they have hidden away the information. The advertisers with whom they negotiate have always legally been able to get access. It is the public that is left in the dark.

Broadcasters are fighting against any online disclosure. But if there is any, they are trying to get the FCC to put mushy, aggregate data online that would make disclosure much less meaningful.

The FCC proposal is actually a modest one. The agency has the authority to order broadcasters to put online within 24 hours the identity of the real ad buyers, including the actual big funders of their ad buys, not just the names of the directors of their organizations. It can require the disclosures to be accessible to everyone, including reporters, researchers and voters using regular search engines. And it can make sure that rivals know where to go, and what to pay, to have rebuttal time.  But the FCC plan is still a significant step.

It is more than ironic that broadcasters, the guardians of the public interest and presumably champions of transparency, have become the biggest adversaries of the public and of transparency. It is shameful. And to those lawmakers who used to champion disclosure but now are carrying their water: Shame on you, too.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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