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Who Paid For This Political Ad? An 81-Year-Old Law Could Force The Answer

It's a fair bet that in 1934, five years into the Great Depression and a year into the New Deal, Congress wasn't thinking about a political future that would be rife with secretly financed political groups.

But the Communications Act of 1934, the cornerstone of U.S. broadcasting law, may require superPACs, 501(c)(4) "social welfare" groups and other big political advertisers that operate separately from campaigns to identify the donors paying for their media blitzes.

Three groups advocating for better disclosure — the Campaign Legal Center, Common Cause and the Sunlight Foundation — are invoking the law against 18 TV stations in legal complaints at the Federal Communications Commission, itself a creation of the 1934 act.

The complainants picked a case with simple facts:

  • Former New York City Mayor Michael Bloomberg heads up and is the sole donor to a superPAC called Independence USA. This is no secret.
  • This fall, Independence USA PAC ran ads attacking four state attorneys general — Florida, Michigan, Wisconsin and Missouri — for their opposition to Obama administration environmental policy.
  • The ads said they were "paid for by Independence USA PAC."
  • The three groups conclude that Bloomberg, not Independence USA, paid for the ads and therefore should be identified in them.

    The 1934 Communications Act directly addresses secret sponsors. It requires stations to announce all broadcasts for which money "is directly or indirectly paid." Stations must use "reasonable diligence" to identify the person paying.

    But in real life, stations collect official forms from political advertisers. They don't routinely verify the information from other sources — say, the extensive news coverage of Bloomberg's superPAC, or the Federal Election Commission's database, or even the PAC's .

    Three of the stations named in the complaint belong to Hearst Television. The chain's lawyer, Mark Prak, told the three groups in a letter that Independence USA as an entity "is merely exercising its First Amendment rights." He said Bloomberg's involvement, and even his money, don't make him the indirect payer for the ads.

    Secret money political groups have proliferated on TV since the Supreme Court's Citizens United ruling in 2010, triggering a steady stream of similar letters and petitions to the FCC from the Campaign Legal Center, Common Cause and the Sunlight Foundation and other pro-disclosure groups.

    In October, public-interest lawyer Andrew Jay Schwartzman, who's involved in many of these cases, asked FCC Chairman Tom Wheeler in a letter if the commission's inaction "represents an abandonment of its core mission to serve the public."

    Schwartzman says Wheeler has not responded.

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