Congress and Advertising – Will 2017 Be Different?
The following “Regulatory Rumblings” blog post originally appeared August 29 at the Association of National Advertisers’ website, ANA.net.
As Congress limps toward this year’s finish line, it appears highly likely that this will be one of the least active and effective sessions of Congress in recent memory. There was general consensus that as 2016 was an election year that very little would get done – but we have now seen extraordinary gridlock between Congress and the White House for several years. At some point the dam will break, and 2017 may very well be the year.
Whoever wins this election, major governmental changes that could significantly affect the advertising sector are almost certain to take place. A major turnover of personnel will occur in D.C. next year regardless of the election’s winner. One of the first jobs for the new President will be to nominate someone to fill the vacancy on the Supreme Court. Since many of the recent decisions supporting First Amendment protection for advertising have been 5-4 decisions, the newly appointed Justice could have a very large impact on our industry.
While the FTC has traditionally been the primary regulator for the advertising community, if the expansive proposals from the FCC go forward, this would result in a bifurcated and far more complex regulatory environment for our industry where we face two 800 pound regulatory giants with often inconsistent and competing agendas.
The presidential contest winner also will need to make appointments to all of the cabinet departments and the regulatory agencies, including the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC). We already have seen a dramatic and unprecedented effort by the FCC to enhance its position as a regulatory agency particularly in areas affecting advertising. Following on its net neutrality order from 2015, the FCC launched two major sweeping proposals this year to impose new privacy rules on Internet service providers (ISPs) and to expand competition in the cable set-top box marketplace. While the FTC has traditionally been the primary regulator for the advertising community, if the expansive proposals from the FCC go forward, this would result in a bifurcated and far more complex regulatory environment for our industry where we face two 800 pound regulatory giants with often inconsistent and competing agendas.
Hillary Clinton has had a very strong commitment to children’s issues throughout her career, so if she were elected it could mean a renewed focus on childhood obesity, children’s advertising, and privacy. She has also been very critical of prescription drug advertising, already calling for the elimination of the advertising tax deduction for this category. If Donald Trump wins, his agenda and appointments affecting advertising are much harder to predict.
Even more changes will occur in Congress next year. While it is likely that Republicans will retain control of the House, it is quite possible that their margin there could narrow. Furthermore, many political pundits are predicting that the Democrats could take control of the Senate in light of the fact that there are 24 Republican seats being contested to only 10 for the Democrats. If Senate control were to flip, this would create the likelihood for far more regulatory-oriented members to set the agenda for the Senate.
Also, tax reform efforts are almost certain to be high on the Congressional agenda next year, continuing to threaten to raise increased attacks on the immediate deduction of advertising expenses.
Regardless of who wins the presidential and Congressional elections in November, ANA will continue to actively work with all members of the Legislative and Executive branches of our government. Advertising issues are bipartisan issues, and therefore we look forward to collaborating with individuals across the political spectrum to further our efforts to protect the rights of the advertising community.