The FEC is the nation’s main watchdog on money in politics, meant to be a check on the unlimited and opaque spending of cash on elections. As political ads have shifted more and more to the digital battlefield, however, the nation’s primary regulator of money in politics has made no real moves to follow it.
The agency is largely bound by law last updated in 2002, back when targeted cable ads were still the cutting edge of political advertising. The last time the FEC updated its rules to address online advertising was in 2006, before Facebook had opened to the general public. More recently it has been paralyzed by an internal argument about whether its mandate should, or shouldn’t, extend further into online campaigning. At the moment, the FEC is unable to update its rules even if it wanted to: Since Republican commissioner Matthew Petersen resigned in August, it has only had three of its six seats filled – one short of the quorum required to revise its rules or even to issue official advice for companies, campaigns and consultants looking for guidance on what’s allowed.
Critics increasingly worry about a political world far outpacing its legal watchdog – a problem only growing more acute as a huge slice of American politics quickly shifts digital. “A lot of people are spending a lot of time online right now,” says Michael Beckel, research director at a bipartisan political reform group Issue One.
“Our 20th century laws, he says, “haven’t kept up with 21st century technologies.”
The FEC did look on track to return to a quorum until recently; earlier this month, the Senate held a hearing to confirm James E. “Trey” Trainor III, a would-be commissioner first nominated by Trump back in 2017. The Senate hasn’t scheduled the necessary confirmation votes, and with Congress consumed by coronavirus votes, it’s not clear when that would happen.
Today, without a quorum and without much to do, the three sitting FEC commissioners fulfill their statutory obligation to meet monthly at their building in Washington’s up-and-coming NoMa neighborhood, catty-corner from a parking lot-turned-beer garden. They meet and discuss the state of enforcement actions launched before last August; without a quorum, they can’t take up any new business.
In some ways, the agency’s paralysis is by design. When the FEC was created by Congress in the wake of the 1972 election of Richard Nixon, where donors were said to arrive in D.C. bearing actual bags of actual cash, it was built with a slate of six commissioners intentionally divided evenly on party lines. The goal, for supporters, was to ensure compromise on crucial questions at the heart of democracy—but skeptics suggest that members of Congress wanted a watchdog guaranteed never to be too aggressive.
Even against that backdrop, the FEC’s approach to the rise in online politics in the last decades has been notably hands-off. It took a view widely shared by many digital pioneers: that the Internet worked best as a freewheeling place. In politics, that meant upstart candidates could be on more even footing with well-funded incumbents. Conventional wisdom was that it was better for democracy for Americans to battle out their ideas online, without government getting in the way.
So while many political TV and radio ads today are required to say who paid for and authorized them — thus the “…and I approve this message…” tagline — online political messaging exists in a gray zone, in practice almost totally unregulated.
The one meaningful exception is a 2006 rulemaking in which the FEC chose to extend its authority over a very small slice of the Internet. Those rules were largely intended to exclude political bloggers from campaign-finance restrictions, but they also for the first time put political ads placed on someone else’s website under the commission’s purview.
While on paper, that category might seem to capture most online advertising, in practice it’s been largely ignored. The FEC offers exceptions to its disclaimer rule for ads where it’s too difficult or impractical for disclaimers to appear, like on giveaway pens or in skywriting; online ads have largely skirted the rules by making similar claims.
Are online ads more like TV commercials, or more like pens? The FEC isn’t saying. Meanwhile, the digital ad market is exploding, moving in directions that nobody anticipated in 2006. The Trump campaign has said that counting every slight variation, it ran nearly six million different online ads in 2016. Already in the 2020 campaign, the Trump, Biden, and Sanders campaigns have spent more than $80 million on Facebook and Google ads. In the run-up to Super Tuesday, Bloomberg alone dropped $16 million on ads on those platforms in a single week.
Individual FEC commissioners have made some proposals to help the agency catch up. Democratic Commissioner Ellen Weintraub has pushed for explicit rules requiring more disclosure on the face of digital ads, while chair Caroline Hunter, a Republican, has floated a lighter-touch approach that would require disclaimers but allow ads to display them in different ways, such as pop-ups when a user hovers over an ad. But the commission hasn’t been able to agree on a path forward.
Some opposed to new online ad disclosure rules point to Facebook’s post-2016 moves to adopt some transparency requirements. But, says Weintraub, “it’s great if they voluntarily choose to require these kinds of disclaimers, but what if they change their mind tomorrow?”
(Hunter and Democratic-leaning Independent Steven Walther, the other remaining FEC commissioner, didn’t respond to requests to talk for this story.)
Over the years, FEC commissioners who have tried to take on digital advertising have quickly learned how tough a fight it can be. After Ann Ravel, Democrat of California, joined the commission in 2013, she started looking into how the FEC might write new rules for the Internet. She got death threats. “Die, fascist, die!,” read one email. At the height of national concern over Russian interference in 2018, the FEC picked up the issue again, and even started the rulemaking process to come up with broad new rules on its authority on the Internet and disclaimers, but it dropped it when public attention died down.
One of the more difficult questions now facing the FEC is what to do about online content that interferes with elections but isn’t clearly a purchased political ad. Online videos can be put together on the extreme cheap, if not arguably for free, to push Americans one way or the other, or just stir up political chaos. In those cases, what role does a commission tasked with enforcing the country’s campaign finance rules have?
Russian interference in the 2016 election has made active disinformation a topline worry for many experts; voters are being exposed to a range of questionable online politicking — from fake accounts traced back to Iran to a viral video of a garbled Joe Biden speech clipped to highlight him saying “we can only re-elect Donald Trump” to another spliced to make it look like Trump was calling Covid-19 “a hoax.”
The case for disinformation being the FEC’s worry? If it costs something to produce, it’s a case of money influencing American politics, and thus falls under its umbrella. But even Weintraub concedes the FEC may have its hands tied there. “Policing disinformation is a very tricky area for us as a government entity to get into,” she says.
“I doubt if it would withstand First Amendment scrutiny if we were to say to the platforms or to broadcasters or anyone else, ‘You have to take that ad down because it contains inaccurate information’,” says Weintraub. “Perhaps the best we can do is to require solid disclosure to make sure everybody knows where the information is coming from.”
Weintraub’s workaround on addressing they risks of what she calls “fraudulent news and propaganda,” for now at least, is to gently or not-so-gently encourage the big platforms, like Facebook and Twitter, to figure out their own ways of what addressing the issue. In August, Weintraub put together a session on that and related topics, and asked the social media companies to come, which many did.
The quickest way to give the agency more teeth would be for Congress to pass a new law handing the FEC amped-up powers over online ads. A Senate bill called the Honest Ads Act, backed by a bipartisan trio of two Democrats, Amy Klobuchar of Minnesota and Mark Warner of Virginia, and South Carolina Republican Lindsey Graham, would address Russia-style threats by making clear that digital ads have to abide by the same rules as offline ones, but so far hasn’t gotten much traction. (A House version passed as part of a sweeping reform package adopted after Democrats took control of the chamber last year.)
Klobuchar, the highest-ranking Democrat on the Senate committee with oversight of elections, says she’s lost hope that the current Congress will make meaningful changes to how the U.S. conducts elections. She points to a bill on requiring paper ballots which she worked on with Republican James Lankford of Oklahoma but that which was stopped in its tracks by Senate Majority Leader Mitch McConnell, a long-standing foe of restrictions on campaign spending. “The only answer is to just hope we win big in the presidential election,” says Klobuchar.
Critics say that Congress handing the FEC more powers is the only way to equip it to tackle online politics. “I’m going to be a little tongue-in-cheek here, but it’s kind of almost irrelevant if they’re ‘ready’” for the upcoming election, says Meredith McGehee, executive director of Issue One, the advocacy group pushing for campaign finance reform. “They aren’t going to get anything done, in terms of any kind of enforcement action. And they don’t have the legislative authority to do almost anything at all on a lot of the online stuff.”
Not everyone agrees that the FEC should be taking on a major overhaul of its approach to the Internet. Bradley Smith, a former Republican chairman of the FEC, serving on the commission from 2000 to 2005, says the calls to apply campaign-finance rules to the Internet often start from a place of “hysteria.” He points to the so-called microtargeting of online ads, a practice that Weintraub has argued highlights how dangerous the medium can be.
There’s always been microtargeting, says Smith. “If you wanted to reach a certain type of Republican voter, you could advertise in ‘WaterSki Magazine,’” he says, adding, “If you see somebody waterskiing, you can almost bet your house that person is a Republican.” And so, argues Smith, while it might make sense for the FEC to offer some clarity about how its old rules apply online, it shouldn’t invent a new field of rules for the Internet.
In the absence of new guidance, tech companies have been winging it, making up policies as new political tactics appear. In January, the Bloomberg campaign tried out a new tactic where it paid prominent Instagram celebrities to post parody text-message exchanges on their accounts meant to draw attention to his candidacy. Were they ads? The spots didn’t explicitly celebrate Bloomberg, and they hadn’t be placed through Instagram’s ad-buying platform. Eventually, Facebook, which owns Instagram, scrambled to tweak its rules to accommodate Bloomberg — allowing once-restricted “branded content” from politicians, as long as they are clearly marked as sponsored posts.
At a conference in Washington shortly after Bloomberg rolled out the tactic, Katie Harbath, Facebook’s public policy director for global elections, pointed out that the FEC hadn’t taken meaningful action on the Internet in more than a dozen years. Said Harbath, „There are always new things, like this branded content work, that we’re having to rethink, and think about, ‘What should the policies be around here?’ — because there’s no one else helping us to think about how we need to do that.“
As much as she’d love to write new rules, Weintraub says, she doesn’t agree that platforms like Facebook are paralyzed unless the federal government tells them how to behave. “It’s easy for a platform to say, ‘Boy, it would be nice to get some more guidance from the FEC or from Congress,’ knowing that they’re not going to get that. It may be sincere, or it may be a convenient thing for them to say,” she says.
And while Weintraub says she’d love the FEC to have a full enough slate of commissioners to do its business, that’s no guarantee that even then it will take action.
“Obviously, we couldn’t make any progress over the last six months when we didn’t have a quorum,” she says. “But we honestly weren’t making a lot of progress before that either.”
Source: politico.com
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