This spring, Congress barred corporations and unions from buying broadcast and subscription-TV campaign ads close to an election. The restriction appears clear enough for paid ads supporting or attacking a candidate, but deciding what restrictions, if any, apply to "issue ads" that happen to mention candidates, to public-service announcements, and to Webcasts is proving tricky. And broadcasters fear that they may be deputized as campaign-finance cops.
Uncertainty over what exactly will be prohibited pushed the National Association of Broadcasters last week to call for a government declaration that TV and radio stations won't be the ones to decide whether political advertisements and other programming comply with the new campaign-finance law. Unless the exemption is spelled out, broadcasters worry that they could face criminal charges when prohibited programs are aired inadvertently.
"This could lead to a further chilling of protected political speech," the NAB said in a filing that coincided with two days of hearings on campaign-reform proposals floated by the Federal Election Commission.
Broadcasters did not testify at the hearings, which were stacked with political groups and government watchdogs, such as the National Republican Congressional Committee, Common Cause, the Campaign Finance Institute and the American Taxpayer Alliance.
FEC rules are needed to implement the campaign-finance reform enacted in March that prohibits corporations and labor unions from "electioneering communications" on behalf of national candidates 60 days before a general election and 30 days before a primary. The FEC is trying to define the types of programming that are covered.
One of the biggest debates: whether the prohibition should apply only to paid advertisements or also to public-service announcements and issue ads that call on the audience to contact a particular lawmaker.
Broadcasters, who are challenging the law in court, and many buyers of ad time also insist that only paid advertising should fall under the restriction, even if the law is upheld. "Good-government" groups, on the other hand, say there should be no blanket exemption for non-paid programming.
"You could have corporations and unions paying high production costs for PSAs that cast candidates in a favorable light," said Campaign and Media Legal Center attorney Glen Shor in testimony before the commission.
FEC Vice Chairman Karl Sandstrom, a Democrat, hinted that he would favor more-specific exemptions to reduce the need for case-by-case rulings after a questionable program has aired. "We can't decide after the fact that someone has committed a felony."
The Campaign Finance Institute's Michael Malbin agreed, opining that as much specificity as possible is necessary if the law is to survive court challenges charging that the law violates corporate and union free-speech rights. "Everyone knows there are some problems here and the courts are going to carve this up to some extent."
FEC Chairman David Mason, a Republican who voiced opposition to reform legislation prior to his appointment to the commission, insists that the agency will craft rules that uphold the spirit of the law while acknowledging the difficulty in creating bright-line tests for permissible programming. "Electioneering communication is a new term," he said.
The new law exempts news coverage, commentary and editorials from the restrictions, but some broadcasters would like to see those protections strengthened. The Radio-Television News Directors Association asked the FCC to define news programming broadly but specifically to include debates, newscasts, news interviews and spot news.
The FCC also spelled out how it will comply with a provision of the statute requiring it to help build an FEC database of stations and cable systems that reach fewer than 50,000 people in a state or congressional district; such stations and systems are exempt from the restrictions.
Separately, the FEC also is revising required disclaimers for political communications and has proposed expanding the scope of prohibitions on misrepresentation and toughening penalties for violations.
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