“[T]he Federal Election Commission has shown itself to be virtually incapable of ensuring transparency in campaign finance,” write the “View” editors at Bloomberg Media. “[I]t would be nice if someone else picked up the slack.” The editors think they have the answer. They note that the Federal Communications Commission “has proposed requiring broadcasters to post online the name of anyone who buys time for political advertising along with the purchase price and airdates. It’s an excellent idea, made more salient in an era of shady super-PACs.”
But their misinformed musing relies heavily on lazy and incorrect generalizations about the laws that govern “shady super-PACs.” Not only will their proposed solution fail to solve the problem they think exists, but it could actually help super-PACs do more for the candidates they support and against the ones they oppose.
The FEC already provides incredible transparency in campaign finance. Every political committee — including PACs, super-PACs, candidates and party committees — must report all contributions and all expenditures to the FEC. Spenders that are not political committees — non-profits, corporations, unions — must report any expenditure over $250 to the FEC. All of this information is published on the FEC website, as provided by current law.
The FCC, on the other hand, regulates broadcasters, not political spending. But it has long required broadcasters to keep a log of who buys ad time for political purposes. The current question is a rather narrow one: Should the FCC require stations to use a standardized form and put information about political ad buys on the Web within a short time period, or should they let them keep maintaining old-fashioned paper logbooks?
Nothing about the FCC proposal would require disclosure of new information. More importantly, none of this has anything to do with what Bloomberg calls “shady super-PACs,” by which they mean organizations that are regulated in incredible detail by the FEC. By law, “shady super-PACs” must publish on the FEC’s website all of their donors over $200, vendors, and expenditures. Information on their independent political expenditures is usually available online at FEC.gov within 72 hours.
Admittedly, the FCC’s plan would affect super-PACs in one odd, indirect way, but not the one Bloomberg’s sages expect. If the FCC’s proposed rule goes into effect, it will be easier for super-PACs to structure their advertising to complement that of the candidates they support, since they will have almost instant information on when and where the candidate committees are buying ads.
Bloomberg’s error is understandable. News reporting on super-PACs has been abysmal. If you get all of your information from self-styled “reform” organizations, such as Common Cause and Democracy 21 — which many reporters do — you are bound to acquire many misconceptions about super-PACs and what they do and do not already disclose.
Part of the idea that super-PACs are “shady” and don’t disclose information stems from confusion with the nonprofits that make political ad buys — such as the NAACP, Planned Parenthood, and the Sierra Club — but which are not super-PACs. These organizations are required to disclose their ad spending to the FEC, but they are not required to disclose donors or members. They never have been, thanks to a series of Supreme Court decisions in the 1950s and 1960s designed to protect civil rights organizations and their members from retaliation. The most often cited is NAACP v. Alabama, which upheld donors’ constitutional right to privacy. The FCC’s proposed regulations would not require that information, either.
But ultimately, it is hard to feel sympathy for Bloomberg for getting it so wrong. After all, they’re a big news organization with plenty of resources. It is their job to get the facts right, not to disclose their ignorance of campaign finance law.
Brad Smith is the former chairman of the Federal Election Commission (FEC) and is founder and chair of The Center for Competitive Politics.
