Protecting political speech and broadcasters from unnecessary disclosure: why the FCC should not expand sponsorship identification requirements for political issue ads.

• Author: Rohn, Shannon

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Citizens United Changed the Political Campaign Landscape in Several Important Ways by Allowing Unlimited Political Expenditures by Third-Party Organizations, Corporations and Unions for the Purpose of Express Advocacy B. Since Citizens United, There Has been a Proliferation of Issue Advocacy Campaigns C. The FCC Regulates Political Speech Through a Series of Rules for Radio, Broadcast Television and Cable D. Several Organizations Sent Complaints to the FCC Regarding Compliance with the Sponsorship Identification rules for Political Advertising III. ANALYZING THE FCC'S SPONSORSHIP IDENTIFICATION RULES: WHY LESS IS MORE A. The FCC Should Not Require Broadcasters to Publish Individual Donor Names in Sponsorship Identification for Political Advertisements Because Such a Requirement Would be Inconvenient for Both Broadcasters and Organizations That Wish to Engage in Political Speech B. The FCC Should Not Require Broadcasters to Publish Individual Donor Names in Sponsorship Identification for Political Advertisements Because Such a Requirement is Unnecessary Given the Current Public File Requirements and the Readily Available Nature of the Information C. The FCC Should Not Require Broadcasters to Publish Individual Donor Names in Sponsorship Identification for Political Advertisements Because Such a Requirement Would be Contrary to the Public Interest in Encouraging and Airing Political Speech IV. CONCLUSION I. INTRODUCTION

"[I]t could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency."

--James Madison (1)

The First Amendment of the Constitution provides that "Congress shall make no law ... abridging the freedom of speech; or the press." (2) Political speech, especially, is "central to the First Amendment's meaning and purpose." (3) Furthermore, the "First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office." (4) Those that try to protect this fundamental civil liberty and the forces that suppress speech have long been at odds, especially as related to political speech. Since the Supreme Court's decision in Citizens United v. Federal Election Commission, (5) which found that the First Amendment prohibited governmental limitations on political expenditures by non-profit and forprofit organizations, (6) many critics have cited concerns about donors and special interest groups with deep pockets controlling the political landscape.7 With unlimited expenditures, these organizations did undoubtedly change the political landscape: they produced more political advertising that focused on a range of topics during election cycles and they contributed to the range of political knowledge and opinion available to the public. (8) But despite this increase in political speech, there are still those that look to limit the influence of third party groups through expansive disclosure requirements for broadcasters which ultimately would abridge the speech of these groups in a way that is contrary to the Constitution. (9)

Organizations concerned about these third party ads and the donors behind them have sought the help of the Federal Communications Commission ("FCC") to increase sponsorship identification requirements in an attempt to bring more transparency to political advertising. (10) In July 2014, the Sunlight Foundation, Common Cause, and the Campaign Legal Center filed two complaints against two television stations that ran ads funded by Political Action Committees ("PACs") that were entirely funded by one person. (11) The complaints alleged that the stations violated Section 317 of the Communications Act of 1934, as amended,, as well as Section 73.1212 of the FCC's rules by not "fully and fairly disclos[ing] the true identity" of the ads' sponsors or using reasonable diligence to obtain information about the sponsors. (12)

While transparency in political advertising is certainly a reasonable objective, these recent complaints are problematic for several reasons. First, the complaints ask the FCC to require individual broadcasters to perform the inappropriate task of investigating third party organizations in order to determine their donation structure. (13) This is a job more properly placed within the Federal Election Commission's ("FEC") jurisdiction, since it handles the formation of Political Action Committees ("PACs") and disclosures of donations on a regular basis. (14) Second, there are already safeguards in place that ensure adequate disclosure to the public about third-party organizations who produce political advertising. Broadcasters must have information about the organization in their public and political files, including the name of the organization, the name and phone number of the donor who buys the ad time, and the specifics of when the ad aired. (15) Furthermore, it is in the broadcaster's interest to ensure the information in third party ads is true, because unlike the FCC's "no censorship" requirement, which protects broadcasters from liability with regard to the truthfulness of candidate ads, (16) third party issue ads may subject the station to civil liability if the information in the ad is defamatory, although this is a more remote possibility. (17) Thus, broadcasters must already engage in due diligence before they are presented to the public.

Third, and most importantly, extended disclosure requirements would chill political speech by providing another incentive for broadcasters to shy away from third party ads. Since they are not subject to the "no censorship" requirement, (18) stations may choose to forego third party ads partially or entirely. It is foreseeable that broadcasters would choose not to publish such ads if they are required to not only diligently create a public file on the ad buy, and investigate the content of the ad for defamation, but also investigate how the organization was funded and if the structure of funding would require further disclosure. (19) Thus, if the FCC places more disclosure requirements on broadcasters, it runs the risk of curbing political speech, chilling public debate, and curtailing liberty.

This Note argues that the FCC should not require television stations to further investigate PACs in order to determine the donors of organizations who buy airtime for political ads. The PACs complained of by the Sunlight Foundation were properly registered with the FEC, (20) and the FCC already has its own political advertising rules in place that require adequate disclosure of information about political issue ads and protect the public from defamatory information. (21) Most importantly, requiring broadcasters to investigate donors' contributions places an unnecessary burden on broadcasters that heightens the possibility of chilling political speech. A broadcaster may choose to forego running an ad that would enhance the risk of fines or criminal prosecution and the public would lose the value of the speech that would have been aired. Rather than focusing their energy on seeking expanded disclosure requirements from the FCC, groups like the Sunlight Foundation should focus on expanding disclosure about donations through the FEC. The FCC's political advertising rules already require enough information in sponsorship identification and provide adequate protection against defamation from third party groups.

This Note will proceed in three parts. First, it provides background on third-party political advertising. This will start with a discussion of the Citizens United case, the issues that arose, and the changes that were implemented. Next, it explores the rise of third-party issue ads. Then, it outlines the rules for broadcasters (22) surrounding political advertising of third party groups. This section concludes with an explanation of the Sunlight Foundation complaint and the FCC's dismissal of the issue. Second, this Note analyzes the current disclosure requirements and explores the reasons why expanded sponsorship identification requirements would be counterproductive. This section also proposes a solution for groups that seek more public disclosure from third party political organizations. Finally, this Note concludes by summarizing these major points and finding that expanded sponsorship identification requirements for broadcasters are not necessary or helpful.

2. BACKGROUND

   While campaign finance has changed a great deal recently, as a result of Citizens United (23) and its progeny, the rules that guide political advertising have remained largely unchanged since the passage of the Communications Act of 1934. While some have suggested that the changes in campaign finance require more extensive disclosure rules for political advertisement broadcasting, the current rules are actually extensive and sufficient to provide viewers with adequate information about the sponsors of political advertisements.

   1. Citizens United Changed the Political Campaign Landscape in Several Important Ways by Allowing Unlimited Political Expenditures by Third-Party Organizations, Corporations and Unions for the Purpose of Express Advocacy

      During the 1970's, campaign finance issues received a great deal of Congressional attention, resulting in the passage of the Federal Election Campaign Act of 1971 ("FECA"), which aimed to increase disclosure of campaign contributions and place limits on those contributions. (24) FECA was later amended through the Bipartisan Campaign Reform Act of 2002 ("BCRA"), which reformed FECA by addressing soft-money contributions and electioneering communications. (25) The BCRA banned national party committees and candidates from using soft money contributions, which are funds not subject to federal limits, and also curtailed issue advocacy by banning...