It has become shibboleth among the speech regulation lobby that all “disclosure” is good, and that no amount of disclosure can be too much. Take, for example, the curious claim made by Public Citizen lobbyist Craig Holman in a recent Roll Call article, concerning the salaries of the staff heading up super PACs, unions, and other political advocacy groups. Of the lack of uniformity in the reporting of staff salaries between the tax, campaign finance, and labor laws, Holman proclaims it is “a very serious problem . . . As long as we don’t have any disclosure of salaries, we’re just leaving the barn door wide open here.”
Never mind Holman’s hyperbole about there not being “any disclosure,” since the article already established that there is, in fact, ample disclosure, albeit not uniform. But Holman’s hyperventilation begs the question, “wide open”… for what, exactly? Which brings us to another example this week of how the speech regulation lobby has become completely untethered from reality.
As the Campaign Legal Center’s Meredith McGehee writes in a recent Campaign Legal Center blog post, “Listeners Are Entitled to Know by Whom They Are Being Persuaded.” Before I get into the merits of McGehee’s post, let me first relate it to Holman’s concern.
The title of McGehee’s post, which she takes from a GAO report on the FCC’s broadcast advertising sponsorship identification requirements, has typified the speech regulatioin lobby’s hackneyed justification for “disclosure” of political spending. (The GAO report, in turn, cites 47 U.S.C. § 317 for the proposition quoted by McGehee, but the statute itself contains no such normative claim whatsoever. In other words, McGehee cites a proposition for which there exists no legal underpinnings. But I digress.) The notion is that it is not enough for the public to know the immediate sponsor of political advertising, but they also must know the financial contributors to that sponsor in order to properly evaluate the credibility of the speech.
Reasonable people can disagree about the merits of this premise, but the claim heretofore has never been, as Holman might suggest, “Listeners Are Entitled to Know by Whom They Are Being Persuaded, and Also How Much The Sponsors of Political Ads Are Paying Their Staff.” Holman’s protestations are simply a bridge too far.
As McGehee claims in her blog post, disclosure requirements should “provid[e] information that is most relevant to viewers.” By that standard, what relevance does it have for the viewer of an American Crossroads or AFSCME ad to know how much those groups’ presidents, Steven Law and Gerald McEntee, respectively, were paid?
Admittedly, donors to non-profit groups are entitled to know if their money is being well-spent, as opposed to lining the pockets of the groups’ officers, and the same goes for union members and their union dues. Campaign finance reports require disclosure of all PAC spending so that regulatory agencies and public “watchdog” groups can verify that there is no misuse of the funds.
But none of these reasons appear to be why Mr. Holman is perturbed. In short, he seems to demand more disclosure simply for the sake of disclosure.
Which brings me back to McGehee’s blog post. Ms. McGehee is worked up over the fact that the FCC has not taken a more aggressive interpretive and enforcement posture in requiring sponsors of broadcast ads to disclose their donors. Never mind the tenuous legal premise for what she and the speech regulation lobby are urging. As McGehee writes:
“[M]any of the expanding number of outside groups used innocuous names that meant nothing or conveyed no obvious ‘identity’ to viewers. In too many instances, the names of the groups are opaque and do no give an average viewer meaningful information about the true identity of the source of the ads or the groups act as ‘front groups’ and hide the ‘true identity’ of the real source of funding for the ads.”
This development, McGehee continues, quoting the aforementioned GAO report, demonstrates how the “FCC guidance for the sponsorship identification requirements have not been updated in nearly 50 years to address more modern technologies and applications.” She concludes, “Regulations to make clear who is paying for a TV advertisement remain caught in a time warp.”
McGehee’s argument is non-sensical on its face. There have been no material changes in the past 50 years in “modern technologies and applications” as they relate to the issue of sponsorship disclosure. While we may now see ads on a big-screen flat-panel TV, as opposed to a tiny screen encased in a box three times as large, an ad is still an ad, and a sponsor is still a sponsor.
If anything, it is Ms. McGehee and her compatriots who “remain caught in a time warp.” With regards to the “front groups” with “opaque” names that “hide the ‘true identity’ of the real source of funding for the ads,” the advent of the Internet is the real modern technology that has made those groups more transparent. A simple Google search of an ad sponsor – even one with an “opaque” name – will often give interested parties a pretty good idea of what that sponsor’s agenda is, as well as its financial backers. Thus, if the FCC regulations need to be updated “to address more modern technologies and applications,” they should be adjusted in a less regulatory direction – not more.
And, lastly, I would simply point out to Mr. Holman and Ms. McGehee that, if the standard for disclosure is, as Ms. McGehee claims, to “provid[e] information that is most relevant to viewers,” academic studies have already proven that most viewers simply don’t care about what the speech regulation lobby is selling.
