The FCC is up to No Good

Last Thursday, the Wall Street Journal ran an editorial entitled “The FCC Muzzle” which spelled out the shenanigans the FCC intends to pull prior to next year’s presidential elections.  They seek to do an end run around the Citizen’s United decision and accomplish by regulatory fiat what Democrats in congress couldn’t do.  And that is to place requirements that top donors to organizations running ads be identified.  Current law requires only the organizations paying for the commercials to be identified.

In today’s politicized atmosphere, thuggish intimidation of Republican and conservative corporate support by leftists has become endemic.  It has reached absurd levels in Wisconsin where unions have threatened small businesses with boycotts if they don’t display signs supporting them.  The Journal’s editorial starts:

Congress tried and failed last year to limit corporate political speech in the wake of the Supreme Court's Citizens United decision, but the threat hasn't gone away. The new liberal hope is that the Federal Communications Commission will do the deed.

Liberal activists at the Media Access Project filed a petition last week asking the FCC to re-interpret decades of law to require that groups that run political ads disclose the names of their top donors. The 1934 Communications Act already requires any group paying for an ad—whether commercial or political—to disclose its identity as part of the ad. But liberals want President Obama's FCC to stretch this reading to require the on-air disclosure of any donor providing 25% or more of funding.

It continues with what the Journal considers the intent:

The goal here is to use "transparency" to intimidate businesses out of making political donations. Disclosure sounds good, but liberals have begun to wield it as a weapon to vilify business donors. Exhibit A was last year's smearing of Target Corp., after it donated to an independent group that ran ads supporting Minnesota GOP gubernatorial candidate Tom Emmer. MoveOn.org twisted the contribution into a claim that Target was "anti-gay" and organized a boycott of Target stores. The company stopped donations.

When the Citizens United decision was handed down, Senator Schumer went berserk and promised legislation (Disclose Act) to reveal contributors.  It failed.  So now the FCC has been given the task to carry Schumer’s water.

This is not the first time the ruse of “transparency” was attempted to intimidate and pressure political supporters.  It happened before in the Deep South in the 1950s.  There are parallels to what happened then and what is being happening now. Fortunately the Supreme Court then put a halt to it in NAACP v. Alabama which recognized that confidentiality was needed to prevent intimidation.

I used that case to write a Letter to the Editor of the Journal.  It ran Monday (4/4/11):

Sometimes Disclosure Begets Intimidation

The threat of intimidation against contributors that would come from mandatory FCC disclosure rules would have a chilling effect on the political process ("The FCC Muzzle," Review & Outlook, March 31).

Such was the case in the racially charged atmosphere of the mid-1950s, when the state of Alabama refused to allow the NAACP to do business in the state. The central issue was a requirement to force the NAACP to turn over its financial records and a list of its members and agents to the state, which the NAACP refused to do. In a landmark decision, the U.S. Supreme Court ruled (NAACP v. Alabama, 1958) for the NAACP, citing the need for privacy and the ability to freely associate to advance its beliefs and ideals.

Other organizations have modeled themselves after the NAACP to protect their members and contributors, most notably the National Right to Work Committee and its legal arm, the National Right to Work Legal Defense Foundation. This is done to shield its members and contributors from union intimidation.

Crosby Boyd
Sanibel, Fla.

Will this deter the FCC?  Probably not.  Recently they simply ignored the ruling of the 10^th Circuit that Congress had not  granted them authority over the Internet (Comcast v. FCC) and simply went ahead and issued regulations anyway.  Fortunately we have a Supreme Court that recognizes the importance of the First Amendment and its fragility.