The FCC has proposed an important rule change that could make the political system more transparent. Amazingly, the trade associations representing the local TV news industry are opposing it.
In exchange for being given the broadcast spectrum by taxpayers for free, broadcasters have long been required to fulfill certain “public-interest obligations” to communities. These used to be fairly significant; now they mostly entail compiling and maintaining a “public-inspection file” that citizens can examine. (For more on the history of the public interest obligations, see pages 276-296 in The Information Needs of Communities”.)
One of the most interesting components of the file: broadcasters are required to keep a log of the political advertising that airs on their channel. This is a potential gold mine of information about who is spending what. The requirement applies to all races—national, state, and local—and issue ads, and must be posted rapidly (usually within forty-eight hours). Stations also must maintain a list of the executives or members of the board of directors of the groups buying the ads.
To be clear, this is what broadcasters are already required to assemble. They mostly do it on paper and store it in filing cabinets at their offices.
The FCC’s proposal is breathtakingly obvious: move the material online. The commission decided not to ask for any additional information for the political file. It merely said that what stations currently collect on paper, they should instead put on the Internet. (Full disclosure: the commission’s proposal is based on a report of which I was the lead author.)
Yet it has provoked a strong, negative reaction from local TV stations. The National Association of Broadcasters and a group of state associations of broadcasters argue that it would dramatically increase the burden on local stations, since some of the files are updated frequently during campaign season. One broadcaster predicted they would have to add eight new staffers to manage such a new system. While they agreed that some other parts of the “public inspection file” could go online, the say the political file should be exempted from that policy.
On the burden point, I would merely note that most of the rest of the world has figured out ways to use the Internet to reduce workload and cost. I’m not sure the broadcasters want to take the position that they will be the one industry that can’t possibly be expected to use the Internet to improve efficiency.
But lest we get lost in the implementation weeds, let’s put this “political file” proposal in a larger context.
This approach ought to have broad ideological support. The Supreme Court’s Citizens United vs. the Federal Election Commission decision was, of course, very controversial because it allowed more types of unlimited campaign spending.
But here’s what people often forget: the conservative justices who wrote that decision said that such a laissez faire system worked if there’s proper and robust disclosure. Indeed, it is a premise of their approach. Justice Anthony Kennedy wrote (pdf):
With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
This opinion echoed the Court’s decision when it upheld disclosure requirements in Doe v. Reed. Justice Antonin Scalia wrote: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”
Local TV news broadcasters have gotten a windfall in political advertising, in part as a result of the Citizens United decision. SNL KAGAN, a media industry analyst, recently estimated that TV broadcasters will earn $2.5 billion in political advertising in 2012—up 62.5% over 2008. Just ten years ago, in 2002, only $707 million was spent. Much of this spending goes to local TV stations. In assessing the health of local broadcasting, SNL Kagan declared: “TV station revenue has been going gangbusters in 2010 thanks to the return of auto ad spending, a strengthening of core categories and influx of political dollars.”
The New York Times recently reported that political advertising has so improved the financial health of local station that they are now the targets of takeover activity.
This influx of political advertising spending has come at a time when many TV stations do not do an adequate job, journalistically, of covering the elections. The FCC’s Information Needs of Communities report noted:
Local election coverage on commercial television stations is particularly lacking. In 2004, a study of local TV news coverage in 11 media markets found that only 8 percent of the 4,333 broadcasts during the month before the election had stories that even mentioned local races During the run-up to the elections, the stations produced eight times more coverage on accidental injuries than on local races, according to the Lear Center at the USC Annenberg School. Meanwhile, the stations were flooded with TV ads about local races. In states with competitive Senate races, four times as many hours were given to advertisements as to coverage of the race. Yet less than one percent of the political stories that were done critiqued the ads.”
The report went on to note:
It is unlikely that matters have improved since then. In 2006, viewers of local news in the Midwest got 2.5 times more information about local elections from paid advertisements than from newscasts, according to a University of Wisconsin study. The average length of a political piece was 76 seconds (down from 89 seconds in 2002), and “most of the actual news coverage of elections on early and late-evening broadcasts was devoted to campaign strategy and polling, which outpaced reporting on policy issues by a margin of over three to one.Putting the material online could make a significant difference. The Sunlight Foundation, one of the leading groups studying and advocating for more effective political transparency, wrote in support of the FCC proposal:
The current system, in which valuable information about political ads is located in the file cabinets of broadcasters across the country, prevents the information from being shared, analyzed or understood. Political advertising has always had an overwhelming impact on the election process. Little is more fundamental to the functioning of our democracy than voters’ understanding of who is influencing our elections .A searchable FCC database of ad buys would not only enable the public to go directly to the FCC’s website to ascertain who is behind any given political advertisement, but would allow for re-use of the data and in-depth analysis by local journalists, scholars and others who could analyze whether the money spent on political ads is coming from in-state or out-of-state, whether more money is being spent by outside groups than the candidates themselves and where races are heating up as determined by spending.
In another submission to the FCC, a public-interest group in Michigan gave a great example of why putting this information online could be transformative. In 2010, the group compared the advertising bought on local TV stations to the spending that was reported to the state under campaign-disclosure laws. It found that, over the last decade, :$20.8 million, or 49.5 percent of all spending in Michigan Supreme Court election campaigns, was not reported to the State. In three gubernatorial campaigns in 2002, 2006 and 2010, $42 million in candidate-focused television advertising was not reported to the State. In 2010, the following percentages of campaign spending in statewide general election campaigns were not reported to the State: Governor: 53.5 percent; Supreme Court: 56.5 percent; Attorney General: 44.8 percent; Secretary of State: 50.0 percent.”
But consider how difficult it was to pull together this information:
Each election cycle I drive thousands of miles and spend scores of hours in data collection. To cite the extreme, I have spent 14 hours behind the windshield to engage in a 15-minute data collection exercise at a station in Marquette in the Upper Peninsula. In 21st Century America, that is ridiculous. Broadcasters can easily web- publish the contents of their political files, and they should do so.
An online disclosure system would allow that group, or any other, to perform this kind of watchdog function far more easily.
It’s also worth nothing that broadcasters’ public-interest obligations have shrunk over the years to almost nothing. Their opposition to even this modest rule indicates that they only support disclosure—the “public-inspection file”—as long as the public isn’t actually using the material in any significant way.
Tellingly, a group of broadcasters in San Diego, Texas, New Mexico, and Illinois objected to a proposal that the public be notified on air about the existence of the public-inspection file. “Such announcements may arouse the public’s interest in examining a PIF, but the Licensees do not believe that the Commission should attempt to stimulate such examinations,” they wrote. Right. We wouldn’t want the public actually paying attention because that would, in their words, result in them playing “Sherlock Holmes” rather than engaging station managers in “productive dialogue.”
Now, it’s quite possible the rules can be improved; indeed, the FCC is practically begging for ideas from the field on how to implement the rules in the most effective, sensible way. And broadcasters are absolutely right when they say that for such a system to work the FCC itself will have to up its game in terms of technology. Journalists and other citizens interested in political transparency should weigh in on the right and wrong ways to proceed.
We have a rare situation in which local TV news operations can directly help the functioning of the political system by providing more information to the public. Is it really possible that the broadcasters will take the position that they should be paid large sums of campaign money, do a poor job of covering elections, and block efforts to allow for more sunlight in the political system?
January 17 is the newly extended deadline to respond to the rule and the first wave of comments that have already been submitted. Whether you agree with my take or not, I urge you to weigh in. To read the comments offered so far, go here and enter proceeding number 00-168. To post your own comment, click on the “submit a filing” link on the side or click here. To read the FCC’s proposal in full, go here.
This is one of two articles about new FCC rules on media transparency; here’s the other.