The Bipartisan Senate Intelligence Committee Rightly Recognizes the Need for Online Political Ad Transparency

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Following a bipartisan Senate report calling for updates to digital political advertising transparency laws to protect against foreign election meddling, three former FEC commissioners have taken to the pages of the Wall Street Journal with misleading attacks on these common-sense disclosure proposals.

On October 8, the bipartisan Senate Intelligence Committee, a Republican-led panel that has been investigating foreign interference in U.S. elections, issued a report reiterating the warnings outlined in the Special Counsel’s report on Russian interference in the 2016 election. The report explicitly urged Congress to “examine legislative approaches to ensuring Americans know the source of online political advertisements.”

The Senate Intelligence Committee’s concerns are well founded. Federal transparency rules for political ads are woefully outdated.

The federal law governing transparency requirements for political ads hasn’t been updated since 2002, when Congress extended reporting and on-ad disclaimer requirements for broadcast ads that mention candidates and are aired shortly before an election. But those same candidate-focused ads are exempt from federal disclosure rules if they are disseminated online.

The Honest Ads Act, which is incorporated in HR 1, would close this loophole and ensure that voters’ right to know who is paying for pre-election political ads is protected even when the ads are distributed online. Between 2014 and 2018, spending on the internet has increased from 1 percent of overall political advertising to 22 percent. It is vital that we update our transparency laws to reflect this new reality — and to guard against foreign interference.

In a recent op-ed, former FEC chairmen Bradley Smith, Lee Goodman, and Michael Toner appear to take issue with the bipartisan Senate Intelligence Committee’s findings, suggesting that new legislation to update the transparency requirements for digital political ads is unnecessary, would fail to stop foreign election interference, and would “harm First Amendment rights.” Each of these claims is wrong.

First, the former chairmen suggest that new legislation is unnecessary because FEC rules “already” require disclaimers for a very narrow category of political ads. But even Smith, Goodman, and Toner concede that those rules “need updating.” And while they claim to support a rulemaking to do so, their observation that such a rulemaking is “already before the FEC,” is unserious and misleading.

As Smith, Goodman, and Toner well know, the internet disclaimers rulemaking they reference has been pending for eight years, including the entire duration of Goodman’s tenure on the Commission. And during that time, and after, Goodman has been outspoken in his opposition to any new rules regulating online political activity.

Second, while updated transparency requirements may not prevent all foreign attempts to intervene in our elections, even Smith, Goodman, and Toner do not dispute that it likely would address some. The Mueller report found that Russians spent $100,000 on Facebook ads, including ads that explicitly supported or opposed a specific candidate.

The bipartisan Senate Intelligence Committee concluded that extending disclosure laws to internet ads will “help to ensure that the IRA [Russian operatives] or any similarly situated actors cannot use paid advertisements for purposes of foreign interference.” The need to address foreign interference through diplomatic, national security, and counterintelligence actions does not negate the importance of ensuring transparency for digital political advertising.

Third, as eight Justices of the U.S. Supreme Court have repeatedly concluded, transparency requirements for political advertising do not violate First Amendment rights. On the contrary, they promote First Amendment interests by informing voters who is trying to influence their decisions at the ballot box and enabling the American electorate to give proper weight to different speakers and messages.

The Senate Intelligence Committee’s report underscores the importance of updating our political transparency laws. The threats to our electoral integrity aren’t going anywhere — they’re getting bigger. Our world is modernizing; the laws protecting our democracy should too.

Kate provides research and writing support to program staff across all of CLC’s issue areas.
Erin works on appellate and district court litigation and Federal Reform and State & Local Reform programs.