A baker's dozen of Republican Senators, including minority leader Mitch McConnell (R-Ky.) and Senate Commerce Committee ranking member John Thune (R-S.D.), have written the FCC commissioners advising them not to get into the middle of a political fight over the funding of campaign ads.
In a letter dated April 10 and posted on scribd.com, they said they were concerned by a line of questioning at a March 12 Senate Commerce Committee FCC oversight hearing.
"In your recent oversight hearing, Sen. Bill Nelson and chairman Jay Rockefeller both encouraged you to use FCC rulemaking to impose the controversial requirements of the DISCLOSE Act legislation that has failed to advance in the Senate because of deep divisions it produces. This legislation is one of the most politically charged, partisan issues in recent Congresses...
"The FCC has a tradition of being no-partisan...We strongly urge you to categorically reject instituting the DISCLOSE Act by fiat, and instead continue focusing on the important communications challenges presented by 21st century technology."
At the hearing in March, Nelson spent his allotted time asking whether the FCC commissioners were willing to use their disclosure authority to require identifying not only the PACs and other groups paying for ads, but the underlying funders "hiding behind the Committee for God, Mother and Country." Congress attempted but failed to mandate such sponsorship IDs in legislation (the DISCLOSE Act) that failed to pass this year. "You have the statutory power," he said. "You don't have to do what we failed to do four years ago, to pass the disclosure act."
He pointed out that in the Citizens United Supreme Court decision that lifted a ban on corporate and union funding of campaign ads, a majority of justices (eight of nine) said that disclosure was the less restrictive alternative to what they saw as a ban on speech. "That would indicate that the court was looking approvingly on disclosure."
The reaction from the commissioners was mixed. All the commissioners said disclosure was a good thing. FCC chairman Julius Genachowski called it a "First Amendment-friendly, powerful tool," and pointed out that the FCC last year adopted a rule requiring the political files of some stations to be posted online. He said the next step would be to assess that role out, consider the issues raised, including Nelson's, and proceed from there.
Nelson noted that legislation that did pass two years ago requires on-air identification of all advertisers, and that the FCC has the authority to decide how to do that. Genachowski said that the commission should look into "going more deeply into who the actual funders are."
The commissioners also all agreed that the FCC should enforce its rules, but commissioner Ajit Pai suggested it was unclear whether disclosures applied beyond the groups to the underlying funders, while commissioner Robert McDowell said there were a number of issues involved in such a decision, including whether the Federal Election Commission or the FCC is the right forum, and whether broadcasters should be the enforcers on these groups.
Both Pai and McDowell also pointed to the difficulty of fitting a series of funders into a TV ad of limited duration. He also pointed to a 2012 GAO report that found the FCC should update its sponsorship guidance to broadcasters, something he supports.
Commissioner Jessica Rosenworcel was the most unqualified supporter of Nelson's. "I will make it easy for you. Yes. Sunlight is the best disinfectant and we should look at our rules and make sure they are updated."
Commissioner Clyburn said she would be willing to work with Nelson if the FCC weren't doing something it should be.