When writing for the 5-4 majority that decided Citizens United, Justice Anthony Kennedy argued that caps on corporate campaign contributions were unnecessary because corporations would inevitably be held accountable for the money they spent on advertising. Disclosure requirements, Kennedy suggested, would provide the electorate with full “information about the sources of election-related spending.” But the type of full disclosure that Kennedy envisioned has been harder to achieve than he imagined. As expected, super PACs have been spending vast sums of money on political ads—with the share for television ads expected to rise to some $3 billion this year. But efforts by the government to regulate the transparency of those ads have met bitter resistance—resistance coming not only from corporate donors, but also from the local broadcast networks receiving the bulk of their money. This kind of intransigence from the super PACs is hardly a surprise. What is surprising is the intransigence from public broadcasters. The arguments against transparency offered by the networks show that, having experienced the windfall of advertising dollars that Citizens United unleashed, they have little interest in meeting their legal and ethical responsibility to serve the public interest.
Soon, they may not have any choice. The Federal Communications Commission is about to vote on a proposal that would require broadcasters to post their “public inspection files” on the Internet. (Disclosure: I’ve known FCC chair Julius Genachowski ever since we were co-clerks years ago.) These files include information on children’s programing and agreements with other stations to share services; they also include the names of anyone who buys political ads along with how much they paid and when the ads ran. The files are available now, in theory, for public inspection, but they’re kept in file cabinets at the networks where, according to a Columbia Journalism Review survey, few people take the time to look at them because access is so inconvenient.
By any measure, the broadcast networks should support the requirement that they put their public files online. Increased transparency supports the marketplace of ideas they exist to promote. Remarkably, however, they’re opposed. Why would anyone resist making public files digitally available? The real reason for the opposition appears to be simple: As a condition of their monopoly on the airwaves, the networks are required to offer campaigns the lowest customary rates, but right before elections, they often demand higher rates from candidates. The only reason they got away with this is that candidates didn’t know they were being fleeced, because the lowest customary rates weren’t widely publicized. If the records of their ad buys were widely accessible, however, it would be that much harder for networks to shake down candidates.