FEC Commissioner Urges New Rules on Online Ad Sponsors

By Kenneth P. Doyle

Representatives of Facebook, Twitter and Google should be called in for a hearing to explore possible new rules on informing the public about who is sponsoring online political ads, an FEC commissioner said.

In a memo—set to be discussed at the Federal Election Commission’s next open meeting Sept. 14—Democratic Commissioner Ellen Weintraub said the agency should reopen a rulemaking proposal that has lingered since 2011 regarding disclaimers on online ads. Weintraub called for a new round of public comments and a hearing in light of Facebook’s Sept. 6 revelation it ran thousands of political ads financed by Russian sources during the 2016 presidential race.

Current FEC rules require disclaimers saying who paid for broadcast and print campaign ads. But many online political ads don’t carry such disclaimers, and the FEC has struggled for years to define legal requirements in this area.

“It is imperative that we update … regulations to ensure that the American people know who is paying for the internet political communications they see,” Weintraub’s memo said. “And it is our duty to have these changes in place in time to inform the 2018 election.”

Deadlock on Foreign Money Issue

Weintraub has pushed for new rules before, without success. Her calls since the last presidential campaign for new measures to control foreign spending in U.S. elections have met with resistance from other FEC commissioners, who have argued that current rules prohibiting foreign money are adequate.

Foreign money influencing U.S. elections has long been outlawed, but that didn’t prevent Russia from trying to intervene in the last election, according to U.S. intelligence agencies. Russia made a major effort to sway the 2016 race toward Donald Trump, especially through dissemination of information on the internet, the intelligence community reported.

Details of the effort, including whether the Trump campaign cooperated in it, remain under investigation. President Trump repeatedly has called the matter a “witch hunt.”

Caroline Hunter, the FEC’s Republican vice chairwoman, said recently that the FEC should address the questions raised by Russian-linked Facebook ads through its enforcement process, instead of moving quickly to write new regulations.

The FEC is known to have more than a dozen pending enforcement matters regarding alleged foreign spending in the 2016 campaign. Such matters are handled in secret and can take months or years to resolve. Others, including special counsel Robert Mueller and congressional intelligence committees, also are looking into the Trump-Russia matter.

Facebook Ads Under Wraps

Facebook said in a recent blog post that it had sold more than 5,000 political ads possibly linked to Russia. Facebook has refused to publicly release the ads, making it difficult to know if they contained any disclaimers stating who paid for the messages. However, Facebook has indicated it didn’t know about Russia’s links to the ads until it undertook a lengthy internal investigation.

What is known is that Facebook has fought for years to minimize disclaimer requirements for political ads carried on the social media network.

An advisory opinion request filed by Facebook with the FEC in 2011 asked that the company’s ads be exempt from the disclaimer requirements that cover broadcast and print ads. Facebook argued for an exemption under provisions of campaign finance law exempting such items as bumper stickers or skywriting. Like those items, Facebook said, its ads were too small or otherwise unsuitable for disclaimers.

The company’s advisory opinion request was submitted by attorneys Marc Elias and Jonathan Berkon of the Washington, D.C., firm Perkins Coie. Elias later served as the counsel for Hillary Clinton’s presidential campaign.

Facebook Followed Google

The Facebook request followed a similar bid for an advisory opinion from Google (AO 2010-19), on which the FEC ruled in 2010 that the company could drop disclaimers from Google ads. The companies then asked the FEC about the rules for political ads, after the commission issued rulings allowing political ads sent via text message to skirt disclaimer requirements.

Google promised in its request to the FEC that each of the ads it carried would have a link to a website that included information about the ad’s sponsor. The FEC’s final ruling, however, didn’t say whether this was necessary because the FEC commissioners couldn’t agree on the question.

When Facebook made its advisory opinion request, it made no promises regarding disclaimers. The request said Facebook was “simply asking the Commission to apply the ‘small items’ and ‘impracticability’ exceptions to its ads in the same way” as bumper stickers, skywriting and any other type of message eligible for the waiver.

The request led to a deadlocked, party-line vote of the six FEC commissioners.

The FEC’s three Republican commissioners voted for the Facebook AO, while the three FEC commissioners holding Democratic seats dissented, arguing it would open up too wide a loophole for online ads to proliferate without any public notice of who was paying for them.

The deadlocked vote meant there was no final ruling on the legal issues involved, but it also indicated there were not enough votes on the FEC to pursue an enforcement action in this area.

Technology Evolves; FEC Doesn’t

While the technology of Facebook and other online platforms has evolved since 2011, there has been little or no change in the FEC rules and precedents regarding online political ads, according to Adav Noti, a former FEC assistant general counsel now working at the nonprofit Campaign Legal Center.

Noti has argued that any precedent established by the 2011 Facebook advisory opinion request is no longer legally valid.

The 2011 request was based on the premise that Facebook ads simply couldn’t carry disclaimers—a premise which no longer applies, Noti said said recently on Twitter. He said the key fact in the Facebook advisory opinion was that all the ads involved were too small or were otherwise unable to accommodate disclaimers.

In 2017, however, the minimum Facebook ad is six times bigger than the maximum ad was in 2011, Noti said.

“Easy to fit [a] disclaimer,” Noti tweeted recently about today’s Facebook ads. He added that this is a “material change in fact” from the 2011 advisory request, meaning it can no longer be relied upon as precedent.

Rulemaking Revival

In addition to considering the Facebook advisory opinion request, the FEC in 2011 initiated a new rulemaking process regarding online ad disclaimers. The commissioners again couldn’t agree about what should be in the rules, and the rulemaking process went dormant.

It is this rulemaking process (REG 2011-02) that Weintraub now wants the FEC to revive with a new comment period and hearing.

Facebook hasn’t said anything about the disclaimer issue lately, but the company filed a comment letter during the FEC’s original rulemaking process in 2011.

The letter, signed by Colin Stretch, the company’s deputy general counsel, said Facebook applauded the FEC’s effort to clarify rules for online ads but cautioned against rules that might favor text-messaging over social media platforms. Specifically, any requirement for online ads to carry a web link to a disclaimer would be a restriction on internet content that would be “bad policy and constitutionally suspect,” the company argued.

“In crafting a rule for online political advertising, the Commission should not impose any content-based restrictions on speech,” the Facebook letter said.

Facebook didn’t immediately respond to a request for comment from Bloomberg BNA Sept. 11 regarding whether the company still takes the same position it did in 2011 regarding requirements for online political ads.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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