Can the FCC Affect the Supreme Court’s ‘Corporations Are People’ Ruling?

Can Obama’s FCC nominees have an impact on anonymous campaign ads?

Can the FCC Affect the Supreme Court’s ‘Corporations Are People’ Ruling?

U.S. President Barack Obama walks away from the podium after announcing Democratic Representative Mel Watt (C) as his nominee for director of the Federal Housing Finance Agency and venture capitalist Tom Wheeler (L) to head the Federal Communication Commission (FCC), at the State Dining Room of the White House in Washington. (Photo: Jason Reed/Reuters)

Matt Fleischer was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

Millions of anonymous dollars have been flooding our political system since the Supreme Court made its Citizens United ruling—that’s the one that says corporation are people—and no one in Washington seems able, or willing, to do anything about it.

Until now. 

In an unexpected turn, the Federal Communications Commission may be the government body to curb some of the ruling’s excesses.

Though the FCC does not have the authority to stop the flood of cash, it can help ensure that money does not remain anonymous. Under Section 317 of the Communications Act, the FCC is allowed to demand transparency. Broadcasters who run advertisements must ensure those advertisements reveal the source of the money behind those ads.

That’s true of political advertisements in addition to traditional commercial ones.

“The FCC is an agency that should be looking out for the public interest,” Mary Boyle, spokesperson for the good government organization Common Cause, tells TakePart. “Knowing who is paying for political advertisements goes a long way to informing voters.”

Nearly $6 billion was spent during the record-breaking 2012 election cycle, and a recent study by the Center for Public Integrity showed that anonymous donations, made legal by the Citizens United decision, were responsible for $933 million of that spending. The result was one of the most bitter, contentious, and misleading election campaigns in American history, with almost no accountability for the worst of the political mudslinging.

According to previous FCC rulings on the matter, ads must “fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity.”

The onus to guarantee full disclosure is on the media entities who run and profit from advertisements, and not on the advertisers themselves—whose freedom to anonymously donate funds, and produce advertisements through so-called Super PACs, the Supreme Court ruled, is protected by the First Amendment.

A March U.S. Government Accountability Office report upheld the FCC’s right to demand political advertisements that run on air and cable fully disclose the source of their backing—despite Citizen’s United.

Thus far, however, the FCC has failed to take advantage of Section 317 in the post-Citizen’s United political landscape. The rule was not invoked during the 2012 election cycle, despite the cries of good government advocates.

That, however, could change soon.

Two new FCC commissioners are currently awaiting Congressional approval, whose views on Section 317 could sway the way the commission handles future anonymous political campaign ads. President Obama has nominated former industry lobbyist Tom Wheeler to chair the commission. He has already been approved by the Senate Commerce, Science and Transportation Committee.  Former Republican Senate staffer Mike O’Rielly, meanwhile, has been nominated by the Republicans, and had a relatively uneventful hearing on Wednesday before the Senate Commerce Committee.

Both nominees look as if they’ll be confirmed.

How they’ll treat Section 317, however, remains anyone’s guess.

“We are hopeful the new nominees will play a role in enforcing the rule, if they are confirmed,” said Boyle. “We’ll be watching this issue carefully.”

According to Boyle, Common Cause will be organizing actions and floating a petition urging the FCC to enforce the disclosure rule that is already on the books.

“Enforcing 317 could be done easily and quickly,” she said. “This rule is very much in the public interest. Voters have a right to know who’s paying for political ads.”

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