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How the FCC Can Negate Citizens United

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Because of the widely unpopular Citizens United decision by the Roberts' Supreme Court, which held that corporate funding of campaign ads cannot be limited under the First Amendment, this 2010 midterm election cycle is seeing five times more outside spending than occurred in the last midterm. As noted in Bill Mann's Huffington Post piece, the real beneficiaries of all that spending are broadcasters (broadcasters who have a legal obligation to serve the public interest.)

"The people who are making most -- over 90%, by most estimates -- of the money from all the obnoxious and ubiquitous ads this fall have names unfamiliar to most people: Belo, Young Broadcasting, Cox, Fisher Broadcasting, Media General. And big names, of course, like ABC, Tribune, Gannett, NBC Universal."

But there are a lot of other names which are unfamiliar to most people, names like "American Crossroads". "America's Families First Action Fund." "American Action Network." "Commonsense Ten." (These, according to the Washington Post, are among the biggest special interest group midterm spenders.)

That leads me to question the value of the current idea in Washington that by merely "disclosing" who is funding campaign ads, voters will somehow be able to separate fact from fiction. As Meredith McGeeHee notes on the Campaign Legal Center blog,

"Congress should take heed of the Supreme Court's 8-to-1 ruling in Citizens United in favor of disclosure, stating that such disclosure is not only constitutional, but is the expected and indeed necessary counter-balance to the new corporate right to expend unlimited funds in US elections.

"Justice Kennedy's 8-1 majority Opinion stated on this point: '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."

The problem is that outside the Beltway, a majority of people who are watching local TV news peppered with campaign ads don't even know who George Soros is. Lindsay Lohan, yes, Dick Armey? Doubtful. Really, just disclosing who paid for ads is no match for the magic of Madison Avenue Mad Men.

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So We the People are caught in a trap. Elected officials spend 75% of their time doing what? Fundraising. Which means they are not spending their time doing the jobs we sent them to Washington to do. Billions of dollars are being poured into candidates coffers and you can bet special interest strings are attached. And then this is the kicker - most voters have no clue that televised ads can outright lie to voters . (Yes, most people think that truth in advertising laws apply to political ads; they do not.)

Really, considering that broadcasters are only licensed if they serve the Public Interest, shouldn't the public be served somewhere in this equation? Can't the FCC, as a condition of stations' licenses, require free airtime for debate or access to the publicly owned airwaves?

The answer is yes. But as in every case of the public interest v the corporate line, it's an uphill battle.

McGeeHee said in an interview Wednesday that "an aggressive FCC, if it properly interprets public interest obligations, has enormous amounts of power to make broadcasts responsive to the political system." But any FCC action would likely be challenged in court, and "the Roberts' Supreme Court, given Citizens United, will likely not look kindly at that. Broadcasters will argue that this would essentially be the government controlling speech."

Well, who is controlling speech now? Giant corporations who are in bed with broadcasters who, rather than serving the public interest, think they have a license to print money. According to a 2002 FCC study, TV broadcasters are earning as much as 46 percent profits. Although they argue otherwise, they can provide real public service at election time and keep shareholders happy also.

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Isn't it time the controlling agency, the FCC, defines and enforces the public interest obligations the broadcasters are mandated to follow? Isn't it time for the public to get real free speech over their own airwaves?

And wouldn't Free Airtime essentially negate Citizens United?

President Obama, it's your FCC. Make it work.


Sue Wilson is the director of Public Interest Pictures' media reform documentary, Broadcast Blues.

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You are absolutely correct in wanting to require b... by Vernon Huffman on Monday, Nov 1, 2010 at 9:39:26 PM
I don't agree that if one buys the others must get... by Paul Kruger on Tuesday, Nov 2, 2010 at 3:02:15 PM
The FCC is no more servant of the US Public Intere... by John Jonik on Tuesday, Nov 2, 2010 at 1:07:43 AM
What we really need is a "Truth in Advertising" pr... by Paul Kruger on Tuesday, Nov 2, 2010 at 2:58:12 PM