03/05/2013 02:20 pm ET Updated May 05, 2013

Flush Out Anonymous Funders of Political Attack Ads

The Supreme Court's 2010 decision in the Citizens United case caused a deluge of anonymous money from corporate sources and wealthy individuals into the electoral process - at least $6 billion in 2012. The bulk of this money was used by conservative Super PACs to target Democratic candidates, including the President, with negative and frequently inaccurate attack ads on television and radio. While this "dark" money did not produce its intended results in 2012, it is certain to continue to be a major factor in future political campaigns, including the 2014 midterm elections and the next Presidential election cycle. Furthermore, there is every reason to believe that the amount of money involved will be even greater.

While it is clear that this kind of effort by secret donors to sway the outcome of our electoral processes is undemocratic - borderline corrupt - the remedies available to those who want to bring a stop to it are quite limited in the short term. Efforts to bring about a Constitutional Amendment that would overturn the Citizens United ruling are underway but that is a long and difficult process. An Obama appointment to the Supreme Court, should a vacancy occur any time soon, could reverse the 5-4 vote that gave us this travesty. However, the most likely opening would be through the retirement of liberal Justice Ruth Bader Ginsberg, who is reportedly in poor health, and her replacement would not change the Court's vote count.

A more limited but potentially useful remedy might lie with the Federal Communications Commission (FCC). Under the provisions of the Communications Act of 1935, the airways or frequencies over which radio and television stations broadcast are considered to be public property. They are licensed to broadcasters who are required to use them in ways that subordinate their own interests to the greater needs and interests of the communities where they operate. Compliance with this legal mandate -- and the administration of the specific regulations flowing from it -- is the responsibility of the FCC. Of particular relevance to the issue of secret donors to campaign ads is Section 317 of the Communications Act, which states that purchasers of all on-air messages - whether commercial or political - must be fully and clearly identified. And, that means no made-up or misleading titles for the people involved.

In an article titled

Sunshine on Dark Money

in the February 25 issue of the Nation, former FCC Commissioner Michael J. Copps notes that, except in the case of ads aired by individual candidates, the Commission has not been diligent in enforcing the disclosure mandate during the last couple of decades. However, a campaign spearheaded by the Media Access Project is underway to ensure that the intent of the law is fulfilled. According to Copps:

All that is needed is a modest updating of the rules to ensure that viewers are able to know where all that money is coming from. Using the normal FCC notice-and-comment process, this needn't take longer than ninety days.

Those behind the secret money will surely pull out all the stops to block enforcement of the disclosure rule but the law is on the books and the FCC is fully empowered to act, if it has the will. As Copps puts it:

The ball is in the FCC's court. Three votes from the five-member commission can carry the day for disclosure - and democracy.

Would this make a huge dent in the amount of money raised from corporations and wealthy individuals that is used to buy attack ads? Probably not - but it could have a beneficial impact, by naming and shaming some of them, on account of the scurrilous nature of many of the ads' messages. Even if only a small number were to withdraw their names and financial contributions, insisting on disclosure will have been worth the effort. Regardless, we deserve to know who they are.