When writing for the 5-4 majority that decided Citizens United, Justice Anthony Kennedy argued that caps on corporate campaign contributions were unnecessary because corporations would inevitably be held accountable for the money they spent on advertising. Disclosure requirements, Kennedy suggested, would provide the electorate with full “information about the sources of election-related spending.” But the type of full disclosure that Kennedy envisioned has been harder to achieve than he imagined. As expected, super PACs have been spending vast sums of money on political ads—with the share for television ads expected to rise to some $3 billion this year. But efforts by the government to regulate the transparency of those ads have met bitter resistance—resistance coming not only from corporate donors, but also from the local broadcast networks receiving the bulk of their money.
This kind of intransigence from the super PACs is hardly a surprise. What is surprising is the intransigence from public broadcasters. The arguments against transparency offered by the networks show that, having experienced the windfall of advertising dollars that Citizens United unleashed, they have little interest in meeting their legal and ethical responsibility to serve the public interest.
Soon, they may not have any choice. The Federal Communications Commission is about to vote on a proposal that would require broadcasters to post their “public inspection files” on the Internet. (Disclosure: I’ve known FCC chair Julius Genachowski ever since we were co-clerks years ago.) These files include information on children’s programing and agreements with other stations to share services; they also include the names of anyone who buys political ads along with how much they paid and when the ads ran. The files are available now, in theory, for public inspection, but they’re kept in file cabinets at the networks where, according to a Columbia Journalism Review survey, few people take the time to look at them because access is so inconvenient.
By any measure, the broadcast networks should support the requirement that they put their public files online. Increased transparency supports the marketplace of ideas they exist to promote. Remarkably, however, they’re opposed. Why would anyone resist making public files digitally available? The real reason for the opposition appears to be simple: As a condition of their monopoly on the airwaves, the networks are required to offer campaigns the lowest customary rates, but right before elections, they often demand higher rates from candidates. The only reason they got away with this is that candidates didn’t know they were being fleeced, because the lowest customary rates weren’t widely publicized. If the records of their ad buys were widely accessible, however, it would be that much harder for networks to shake down candidates.
The broadcasters refuse to admit this, of course, but the arguments they offer instead are so flimsy they collapse on inspection. Broadcasters like CBS News and Fox, for example, have actually suggested it would be too much trouble to digitize records of ad buys that currently exist in different formats. Along the same lines, Robert McDowell, the only Republican Commissioner on the FCC, said in February that the proposal would likely be a “jobs destroyer” because the broadcast networks would have to spend money to comply. The “jobs destroying” argument is silly, given the trivial costs of converting paper files to pdfs as opposed to printing them, and disgraceful, in light of the fact that the broadcasters will receive in campaign ad revenue almost $2 billion more than they got four years ago.
In an even more over-the-top response, Jerald Fritz, a senior vice president of Allbritton, which owns several ABC local affiliates including the one in Washington, D.C., said in a January filing to the FCC that the proposal would “would ultimately lead to a Soviet-style standardization of the way advertising should be sold as determined by the government.” In light of the sad McCarthy-era history of great broadcasters being smeared as Soviet agents by the U.S. government, it’s unfortunate, to say the least, that their lobbyists are using similar tactics to resist federal transparency requirements today.
The networks’ resistance to public disclosure is shocking, not least because they rely on public airwaves to operate. As NPR’s Bob Garfield noted in a January interview, “broadcasters who use public airwaves are asked very little in exchange for their licenses.” Even if the networks’ paperwork burden increased, he asked Jack Goodman, legal counsel to the National Association of Broadcasters, isn’t that “a minimum responsibility for stations to meet their public disclosure requirements?” Goodman’s surprising response: “The whole question of whether the airwaves belong to the public is one that has been debated for 80 years, and the assumption that there is one answer is not at all clear.”
It’s the height of hypocrisy for media corporations to benefit from the post-Citizens United cash windfall and then do everything possible to undermine the transparency that could soften at least some of its worst effects. Let’s hope the FCC passes the disclosure requirement for broadcast networks, and proposes similar requirements for cable networks and radio stations soon.
Jeffrey Rosen is the legal affairs editor of The New Republic.