FEC chair makes another go at regulating online political ads

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FEC Commissioner Ellen Weintraub, (Joe Raedle/Getty Images)

Federal Election Commission Chair Ellen Weintraub is proposing rules that would require some online political ads to attach a disclaimer describing who is paying for them.

The proposed rules — similar to measures introduced by the FEC last year — would subject paid online ads to similar disclaimer rules as print, television and radio ads. Increasingly popular social media ads, including those engaging in electioneering communications that mention a candidate shortly before an election, are currently exempt from including disclaimers under federal law.

“Americans deserve transparency when it comes to internet communications, especially as we face the growing threat of online disinformation campaigns and false political advertising,” Weintraub wrote in her memorandum.

The proposed rules will be discussed at the FEC’s Thursday meeting. Amid ideological deadlock, the commission has struggled to agree on how to regulate online ads since it was revealed that Russian actors purchased Facebook ads under fake accounts to influence the 2016 election.

Hampering progress on new rules is the fact that the FEC is currently short two commissioners — and all of the current commissioners’ terms expired long ago — but President Donald Trump and Congress have not filled the vacancies.

Online political ad spending has consistently risen during each consecutive election cycle. Candidates running for federal office alone spent $72 million on digital ads reported to the FEC during the 2018 election cycle. Candidates seeking the presidency in 2020 have already spent nearly $40 million between Facebook, Google and Twitter ads, using the platforms primarily to build a list of supporters they can continually solicit for campaign contributions.

In response to election meddling, the social media giants released their own political ad databases and required political advertisers to put “paid for” disclaimers on ads. These disclaimers are limited and disclose little information about the buyer. And social media executives themselves have endorsed measures to mandate disclaimers in federal law. A digital advertising trade group has released its own guidelines for political advertisers, asking that online ads include a “political ad” icon a viewer may click on to get more information.

Weintraub’s proposal includes some elements that could be attractive to her Republican colleagues by providing advertisers several options as to how they can present their “paid for by” disclaimer within online ads. The rules allow advertisers to use mechanisms such as hyperlinks or hover-over actions to act as a home for a disclaimer as long as the information is no more than one action — or click — away from the user.

The FEC received more than 314,000 public comments between 2017 and 2018 on proposed rules to online ads and held hours of testimony. The “one-click” language was preferred by some conservative groups as a way to promote greater transparency without burdening free speech. Other groups have expressed concern that most users will not click on disclaimers to learn more about the ad buyer.

The new proposed rules are being introduced as a bipartisan group of lawmakers push a bill that would bring political ads purchased on social media outlets into the same regulatory realm as print and broadcast ads. Supporters of the bill say action from Congress is necessary because the FEC failed to finalize rulemaking to address transparency of online political ads.

Several other measures have been introduced to shine a light on online political ads, though these bills would likely die in the Mitch McConnell-led Senate, where recent transparency-related bills have not received a vote.

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