In May of this year, the Online Electioneering Transparency and Accountability Act (OETA) became law in Maryland. This legislation updates Maryland’s existing disclosure rules to account for the recent, dramatic shift to online political advertising, and to prevent the kind of secret online advertising and misinformation campaign lodged by Russia during the 2016 election. Several other states have already instituted – or are considering – similar statutes.
The requirements of the OETA apply to online platforms with at least 100,000 unique monthly U.S. visitors that disseminate certain “qualified” paid political ads. The law requires these online platforms, which include the plaintiff newspapers, to post on their websites and retain in their records information that identifies the sources, costs, and information about the candidate or ballot issue to which the ad relates, and information about the distribution of the ad. The OETA advances the government’s compelling interests of providing the public with meaningful disclosure, transparency, and combatting foreign interference.
Although some of the newspaper plaintiffs have, themselves, forcefully touted the democracy-enhancing value of disclosure, they have sued Maryland election officials seeking to avoid their own obligations to comply with the OETA’s disclosure and recordkeeping requirements. The complaint in Washington Post v. McManus asserts that the OETA violates the newspapers’ First Amendment freedoms of the press and speech.
First Amendment Protections
Campaign Legal Center (CLC) and Common Cause Maryland filed a brief in the U.S District Court for the District of Maryland in support of the state of Maryland. The brief describes the important First Amendment values that the OETA promotes, and explains that the law is a clearly constitutional means of ensuring public access to information about the sources, financing, and distribution of political advertising, and preventing future attempts by foreign actors to influence American elections.
As The Washington Post slogan says, “Democracy Dies in Darkness.” The OETA, by contrast, allows the public to make informed choices in an increasingly frenzied political marketplace. Newspapers should embrace the OETA because it will help inform the public, make it harder for foreign actors to secretly influence voters, and otherwise help Maryland enforce existing campaign finance rules.