Just as the internet has changed society, it has also changed the way campaigns reach out to voters. But regulation of these ads has not kept up. That slow reaction created a blind spot which Russians exploited when they ran thousands of advertisements on Facebook and other digital platforms, reaching a wider audience than last year’s Super Bowl.
Federal law prohibits foreigners from paying to run election advertisements, but by choosing to operate online they were able to avoid detection. Our election laws over the years have struggled to keep pace with changes in society, but federal solutions — as well as a slew of state and local solutions — are on the horizon.
Let’s look at where we started. The Federal Election Campaign Act (FECA) was enacted in 1972. This law still serves as the foundation for most campaign finance regulations and its age is showing. The law was passed 12 years before Mark Zuckerberg was born and 17 years before Tim Berners-Lee invented the World Wide Web. Clearly, the world has changed but federal campaign finance regulations have yet to catch up.
FECA established reporting requirements relevant to the 1970s media landscape — broadcast, radio, and print. Lacking prophetic insight, Congress did not include digital platforms. In 2008, campaigns spent $22 million on digital advertising. In 2016, that number swelled to $1.4 billion and, for the first time in an election cycle, digital spending surpassed campaign spending on cable television. Despite the influence of digital advertising, outdated laws have allowed these ads to largely exist outside the reach of the FEC’s authority and state enforcement agencies.
In response to this crisis, a bipartisan group of Senators and Congressmen has introduced the Honest Ads Act. The new law would close some of the biggest loopholes Russians used to run election ads while shielding their identities. The introduction of the Honest Ads Act was a promising first step — garnering support from Facebook, Twitter, and Google — but Congress has failed to even hold a hearing on this important legislation. Read the text of the Honest Ads Act. Individual states are taking action to deter foreign interference by moving forward with digital ad disclosure bills. In Vermont, Republican Governor Phil Scott signed legislation passed by the Democratic-majority legislature to clarify that the rules for electioneering communications apply to digital platforms.
Earlier this year, Washington strengthened its campaign finance protections, including by requiring disclosure of digital advertisements. New York Governor Andrew Cuomo recently signed the Democracy Protection Act, which was modeled after the Honest Ads Act. The final rules are still not determined but the act already includes further limitations on foreign actors.
Other states are also seeking to address the gaps in our campaign finance disclosure regime. The Maryland version of the Honest Ads Act is awaiting Governor Hogan’s signature. In California, the legislature is moving towards clarifying the disclaimer requirements for online political ads.
The push to protect elections from foreign interference is being heard across the country with legislators in Connecticut, Hawaii, Idaho, Kentucky, Michigan, and Virginia all calling for modernizing campaign finance laws. CLC will continue tracking the progress of these state efforts as well as the Honest Ads Act. The most effective legislation will, like the Honest Ads Act, include provisions that:
● Require digital platforms to create a “political ad file”: for over 40 years television stations have been obligated to maintain a record of who is purchasing political ads, and digital platforms should be required to maintain a similar database. This database should contain basic metadata beyond the advertisement itself to provide voters, journalists, and law enforcement agencies the information they need to detect foreign interference. Some potential data points include the intended and actual audience of the ad, its funding mechanism and contact information for the advertiser.
● Clarify that “electioneering communications” include digital ads: Groups that make digital electioneering communications should publicly disclose that spending. Again, this does not represent a new requirement but simply creates parity between mediums.
● Require on-ad disclaimers for digital ads: viewers should know who paid for the advertisement. Be it an explicit verbal statement or a clearly demarcated notice, people should be able to easily identify an ad’s sponsor. This would help deter foreign interference. Some states, like California, require advertisements to specify major donors, and this should include digital communications.
● Allow for some flexibility as digital platforms continue to evolve: Digital platforms are changing rapidly and when establishing thresholds for platforms it is important that requirements are crafted with an eye towards future developments and avoid ties to any particular technological medium. This will help futureproof regulations and help prevent a recurrence of where regulations are again, an ineffective anachronism. By taking action, states are proving that they really are the laboratories of democracy. These efforts should be applauded. Congress should follow suit and ensure that foreign actors who attempt to interfere in our elections are exposed. Ensuring the transparent conduct of our elections is one step in restoring the public trust.