Democracy 21 Files FEC Comments Calling For Broad Ad Disclaimer Regulations

Democracy 21 Files FEC Comments Calling For Broad Ad Disclaimer Regulations

Democracy 21 today filed comments in a rulemaking proceeding at the Federal Election Commission (FEC) to urge the agency to adopt new regulations that broaden the requirements for the use of “disclaimers” to identify the sponsors of campaign-related ads on the Internet.

The rulemaking is being held by the FEC in the wake of revelations that Russian agents ran tens of thousands of Internet ads and messages to influence the 2016 presidential election that failed to identify who was responsible for the ads.  Under existing FEC regulations adopted in 2006, only certain paid online ads that are placed on another person’s website are required to include such a disclaimer.  But campaign messages on other Internet platforms are not.

The FEC has been considering whether to broaden its disclaimer requirement for online ads since 2011, but the agency did not open a formal rulemaking proceeding until March 2018 after Democracy 21 and other reform groups repeatedly urged it to do so.

Democracy 21 general counsel Donald Simon said, “It has been apparent for a long time that the FEC’s disclaimer rules have not kept pace with rapid innovations in how the Internet is being used for campaign purposes.  It’s good that the agency is finally trying to catch up by updating its rules.  But the FEC should ensure that its new rules are adequate to fulfill the important purpose served by a disclaimer requirement—as the Supreme Court has said, to ensure that voters are ‘fully informed’ about the person or group who is speaking. If the Commission adopts weak rules or allows ads to escape the disclaimer requirement altogether, it will just be laying the groundwork for future problems.”

According to Democracy 21 President Fred Wertheimer, “Ongoing investigations have already made clear that Russian agents undertook a massive and illegal effort to influence the 2016 presidential election.  It is inexcusable that the FEC, which has important law enforcement responsibilities to prevent such interference, has done nothing for the last two years to stop a repeat of what happened in 2016.  While it is a good step for the FEC to improve its disclaimer requirements, it is more important for the FEC to focus on how to strengthen its rules to guard against foreign interference in our elections.”

In the comments filed today, Democracy 21 criticized the FEC for failing to take stronger action to prevent a repeat of the foreign interference with U.S. elections that occurred in 2016.  Taking note of the “indisputable conclusion that the laws designed to protect the integrity of federal elections against foreign interference, and the enforcement of those laws, were not adequate to prevent this attack in 2016,” Democracy 21 stated:

The Commission has played a major role in this failure.  It is the Commission which has primary civil jurisdiction to administer and enforce 52 U.S.C. § 30121, the principal statutory provision which prohibits foreign nationals from making contributions and expenditures to influence U.S. elections.  This prohibition was flouted by the activities of Russia and its agents in 2016, in what appears to have been a highly organized, well-funded, State-sanctioned plan to manipulate the American electorate by spending funds to use divisive wedge issues to promote or attack the presidential candidates.

The comments state:

Even without any new legislation, the Commission has ample existing authority to improve regulation of campaign-related activity on the Internet, to bolster disclosure and disclaimer requirements and to strengthen the existing ban on campaign spending by foreign nationals.  And the Commission has ongoing civil enforcement authority in all of these areas as well, and can aggressively exercise that authority to deter future violations.

Instead, the Commission’s lethargic response to this crisis has been alarming. . . Two years after a full-fledged campaign by a hostile foreign power to influence the American presidential election, the sum total of the Commission’s response has been this rulemaking to improve the disclaimer regime with regard to Internet communications—an appropriate step, although only a tiny step in the right direction.  Even assuming that the current four-member agency can find unanimity to adopt one of the two competing regulatory approaches proposed in the NPRM . . .this rulemaking will be no more than a modest improvement on a collateral issue that is only indirectly related to the core problem.

Democracy 21’s comments also noted:

The Commission continues to ignore how it could deploy or strengthen the most directly responsive tool at its disposal—the statutory ban on foreign national spending set forth in section 30121.  Indeed, the agency’s inexplicable passivity in the face of a national crisis was on display as recently as yesterday, when the Commission, by a 2-2 vote, yet again rejected Commissioner Weintraub’s renewed motion for the agency simply to consider whether to initiate a rulemaking under section 30121 to strengthen the agency’s administration of the statutory ban on foreign national spending in U.S. elections.

Were the Commission a fire department, this rulemaking on Internet disclaimers would be the equivalent of driving a firetruck equipped with a high-powered water cannon up to a blazing inferno, and then breaking into a debate about whether to use a small bucket or a leaky bucket to toss water onto the fire.  Either bucket would be better than nothing, but neither would be as good as using the most directly effective firefighting equipment available to it.

Democracy 21’s comments continued:

[The FEC] should also ensure that it implements the statutory disclaimer requirement in the most robust fashion possible, because of the important public purposes that disclaimers serve in furthering the electorate’s right to know who is paying for political advertising, including campaign messaging on the Internet.

The Supreme Court has consistently upheld FECA’s disclaimer requirements against First Amendment challenge because the Court has recognized that disclaimers “provid[e] the electorate with information” and “‘insure that the voters are fully informed’ about the person or group who is speaking.” Citizens United v. FEC, 130 S. Ct. 876, 915 (2010) (quoting McConnell v. FEC, 540 U.S. 93, 196 (2003) and Buckley v. Valeo, 424 U.S. 1, 76 (1976)) (internal citations omitted).  And, the Court has said, disclaimers, like disclosure, “impose no ceiling on campaign-related activities’ . . . ‘and do not prevent anyone from speaking.’” Id. at 914.

Accordingly, Democracy 21 urged the FEC to require the use of a disclaimer on any “internet-enabled device or application” in addition to an ad placed on a website.  The Democracy 21 comments further urge the FEC to adopt the stronger of the two alternative rules proposed by the agency.  The stronger rules would require online video ads to include the same extended “stand-by-your-ad” disclaimer information that broadcast television ads must have. Online audio ads would have to include the same extended disclaimers that broadcast radio ads have.

Democracy 21 also urged the FEC to reject a proposed rule that would allow sponsors to avoid including disclaimers at all if they claim the ad is too small to accommodate the disclaimers.  According to the comments:

This is exactly the wrong approach: the Commission should be expecting sponsors of political ads to find technological solutions to the problem of including disclaimers on small online ads, not offering an exemption of uncertain contours so that a sponsor is relieved of the obligation to comply with the disclaimer requirement at all.  Absent very strong evidence that there are forms of online communication that simply cannot accommodate the use of even an adapted disclaimer—and no such evidence is suggested in the NPRM—the Commission should not open the door to a blanket exemption.

Read the full comments here.

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Released: May 25, 2018