Cruz is back at it — this time blocking the nomination of Tom Wheeler as chairman of the Federal Communication Commission. Cruz wants to know Wheeler’s thoughts and intentions regarding full-disclosure of contributors responsible for “dark money” third-party issue ads. You can bet it’s not because Cruz is an advocate for transparency.
Tea Party candidates that ran with little monetary support in 2010 are expecting a windfall of covert reinforcement from shadowy sources in 2014. Given that moderate Republicans have been cowering at the prospect of being “primaried” next year, you’d think they’d have as good a reason as anyone to shine a little light in the dark corners of campaign finance.
The FCC already has a powerful tool to control much of the dark money, unfortunately it remains rusting in their toolbox — never used. They have separate rules for broadcasters to follow for issue ads compared to candidate ads. The key difference is: candidates may basically lie through their teeth in their ads and the broadcaster may not censor nor pull the spot. They bear no liability. Not so issue ads though. In the trade journal, TV Newscheck, they describe the legal precedent thus:
The FCC has a long history of expecting stations, as part of their overall obligation to operate in the public interest, to avoid knowingly airing false claims in commercial advertising. That principle spills over to political ads, at least by noncandidates when a station has been made aware of the alleged falsity.
There can also be potential liability for money damages, cease and desist orders, libel and slander, and the bother and expense of answering a complaint filed in court or at the FCC, by a candidate who claims to be the victim of false statements broadcast in noncandidate political ads.
The law firm Davis Wright Tremaine takes a harder line on ensuring the veracity of third-party political ads. In a paper titled Political Broadcasting; Answering Your Questions on the FCC’s Rules and Policies, we find this warning:
Can I have liability for running an attack ad from a third-party group?
Yes. Because a station has the right to decide whether or not it will run an ad, it can be held liable for the content of that ad. If an ad contains an attack on a candidate that the station knows to be false, or the station is told that the ad is false and the station continues to broadcast the ad and does nothing to investigate whether the ad is in fact false, liability to the station could arise if the claims are in fact false.
How do I know whether or not a third-party ad is true or not?
The station must do a reasonable review of an ad—especially if the truth of the ad has been challenged. If you receive a challenge to the truth of a third-party ad, ask the committee or organization that is sponsoring the ad for information backing up its claims. Review that information for accuracy and reliability, and check with counsel to assess the sufficiency of the backing material to avoid liability for defamation or other torts. It is best to stop running the ad while doing this investigation.
What is particularly useful here is that it doesn’t necessarily have to be the “wronged” party or candidate that makes the initial contact with the broadcaster or FCC. However if a civil suit is later filed, it then would have to be the individual(s) with legal standing.
A watchdog group called “FlackCheck.org” (a companion organization to FactCheck.org) focuses on this particular FCC rule. They support citizen activism in demanding broadcasters stop running false third-party ads. The idea is to have the ads pulled in just enough market areas that all broadcasters will see the wisdom of not-airing the lies. In the 2010 election cycle they did this state-by-state, encouraging people to contact their local TV and radio stations. Here is their Michigan site.
It is an uphill battle — broadcasters make top dollar on these issue ads, and because rates are market-driven, the demand for airtime leading up to an election drives the price for a thirty second spot into the stratosphere. As for follow-up lawsuits, a maligned candidate typically just wants to move on, but ballot initiatives and referendums that are targets of false ads may choose to litigate on principle.
In the meantime, won’t somebody please hush Cruz and just give the man a binky?
Amy Kerr Hardin