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.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.