As Campaigns Move Online, America’s Chief Watchdog Isn’t Following

The FEC is the country’s primary watchdog for money in politics. It is designed to review the unlimited and opaque spending of cash on elections. As political ads have shifted more and more to the digital battlefield, the country’s main regulator for money in politics has not taken any real steps to follow it.

The agency is largely bound by laws that were last updated in 2002 when targeted cable advertising was still at the forefront of political advertising. The last time The FEC updated its online advertising rules in 2006 before Facebook opened to the general public. More recently, an internal argument has paralyzed whether or not his mandate should extend to online campaigns. Currently, the FEC cannot update its rules even if it wanted to: Since Republican Commissioner Matthew Petersen’s resignation in August, only three of his six seats have been filled – part of the quorum needed to revise his rules or even provide official advice to companies, campaigns and consultants looking for guidelines, what is permissible.

Critics are increasingly concerned that a political world far outstrips its legal watchdog – a problem that becomes more acute as a large part of American politics digitize quickly. “Many people are currently spending a lot of time online,” says Michael Beckel, research director of a non-partisan political reform group, issue 1.

“Our 20thth Century laws, he says, “didn’t keep up with 21st Century technologies. “

The FEC was on the right track to become quorate again until recently. earlier this month, the Senate held a hearing to confirm James E. “Trey” Trainor III, A prospective commissioner who was nominated by Trump in 2017. The Senate has not planned the required confirmation votes, and since Congress is consumed by coronavirus votes, it is not clear when this would happen.


Today, with no quorum and little to do, the three seated FEC commissioners meet their legal obligation to meet monthly in their building in Washington’s up-and-coming NoMa neighborhood, a corner of a parking lot that has become a beer garden. They meet and discuss the status of the enforcement actions that were initiated before August last. Without quorum, they cannot start a new business.

In a way, the agency is intended to paralyze. When the FEC was launched by Congress after Richard Nixon’s election in 1972, where supposedly donors with actual wallets were supposed to arrive in DC, it was built with a list of six commissioners who were deliberately evenly distributed across party lines. The goal for supporters was to ensure compromise on key issues at the heart of democracy – but skeptics suggest that Congress members wanted a watchdog that is guaranteed never to be too aggressive.

Even against this backdrop, the FEC’s approach to the rise of online politics in the past few decades has been remarkable. Many digital pioneers believed that the Internet worked best as a free run. In politics, this meant that upstarts with well-funded incumbents could be more equal. Conventional wisdom was that it was better for democracy for Americans to fight their ideas online without the government getting in their way.

While many political television and radio advertisements today have to state who paid and authorized them – hence the slogan “… and I agree with this message …” – online political messaging exists in a gray area that in practice is almost entirely is unregulated.

The only significant exception is a 2006 rule-making, in which the FEC has decided to extend its authority to a very small part of the Internet. These rules should largely exclude political bloggers from restrictions on campaign funding, but for the first time, they have placed political ads placed on someone else’s website within the Commission’s remit.

On paper, this category appears to cover most online advertising, but has been largely ignored in practice. The FEC offers exceptions to its disclaimer rule for advertisements where it is too difficult or impractical to place disclaimers, such as: B. on promotional pens or skywriting. Online ads have largely circumvented the rules by making similar claims.

Are online ads more like television advertising or more like pens? The FEC doesn’t say it. In the meantime, the digital ad market is exploding, moving in directions no one expected in 2006. The Trump campaign has said that any minor variation will be considered Almost six million different online ads were shown in 2016. The Trump, Biden and Sanders campaigns were already in the 2020 campaign spent over $ 80 million on Facebook and Google ads. Ahead of Super Tuesday, Bloomberg alone $ 16 million for ads on these platforms in a single week.

Individual FEC commissioners have made some suggestions to help the agency catch up. Democratic Commissioner Ellen Weintraub has pushed for explicit rules require more disclosure regarding digital ads, while chairwoman Caroline Hunter, a Republican, has floated an easier approach This would require disclaimers, but ads can display them in different ways, such as: B. Pop-ups when a user moves the mouse over an ad. However, the Commission was unable to agree on a further path.

Some who oppose new online ad disclosure rules point to Facebook’s move after 2016 to adopt some transparency requirements. But, says Weintraub, “it’s great if you voluntarily choose to ask for such disclaimers, but what if you change your mind tomorrow?”

(Hunter and Democrat Independent Independent Steven Walther, the other remaining FEC commissioner, did not respond to requests to speak for this story.)

Over the years, FEC commissioners who have tried to do digital advertising have quickly learned how tough a struggle can be. After joining the Commission in 2013, Ann Ravel, a Democrat from California, began investigating how the FEC could write new rules for the Internet. she has Death threats. “Die, fascist, die!”, Read an email. At the height of national concern over Russia’s interference in 2018 The FEC has taken up the problem againand even started the rule-making process to develop comprehensive new rules for his authority on the Internet and disclaimers, which were discontinued when public attention waned.

One of the more difficult questions the FEC is currently facing is what to do with online content that disrupts elections but is not clear a purchased political ad. Online videos can be compiled extremely cheaply, if not free, to drive Americans in one direction or another, or just to fuel political chaos. In this case, what role does a commission that is responsible for enforcing the rules for campaign funding in the country play?

Russia’s interference in the 2016 elections has made active disinformation its main concern for many experts. Voters are exposed to a number of questionable online policies – by fake accounts go back to Iran to a The viral video of a garbled speech by Joe Biden was cut off to highlight him and say, “We can only re-elect Donald TrumpTo Another that was spliced ​​to make it look like Trump was calling Covid-19 a “joke.”

The reason for disinformation is the FEC’s concern? If production costs something, it is a case of money that affects American politics and thus falls under its roof. But Even Weintraub admits that the FEC’s hands may be tied there. “Disinformation of the police is a very difficult area for us as a government agency,” she says.

“I doubt that if we told the platforms, broadcasters, or anyone else, it would stand up to the First Amendment review:” You have to remove this ad because it contains inaccurate information, “Weintraub says.” Perhaps the best thing is we can do to require solid disclosure to ensure that everyone knows where the information comes from. “

Weintraub’s workaround in coping with the risks she calls “fraudulent news and propaganda” is at least gently or less gently encouraging major platforms like Facebook and Twitter to figure out their own methods of addressing the matter. In August, Weintraub put together a session on this and related topics and asked 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 that delegates FEC powers through online ads. A Senate bill called Honest Ads Act, supported by a bipartisan trio of two Democrats, Amy Klobuchar from Minnesota and Mark Warner from Virginia, and Republican Lindsey Graham from South Carolina, would address Russian-style threats by clarifying that digital ads have to remain according to the same rules as offline, but so far not got much traction. (A house version was adopted as part of a comprehensive reform package that was passed after Democrats took control of the chamber last year.)

Klobuchar, the senior Senate committee democrat who oversees the elections, says she has lost hope that the current Congress will make significant changes to the way the United States conducts elections. She points to a paper vote bill she worked with Oklahoma Republican James Lankford, but was stopped by Senate majority leader Mitch McConnell, a long-standing opponent of campaign spending restrictions. “The only answer is to hope that we win big in the presidential election,” said Klobuchar.

Critics say that Congress, which gives the FEC more powers, is the only way to equip them to fight online politics. “I will be a little cheeky here, but it is almost irrelevant whether they are” ready “for the upcoming elections,” said Meredith McGehee, managing director of Issue One, Advocacy is pushing for campaign funding reform. “You won’t do anything about enforcement.” And they don’t have the legislative power to do almost anything on many online things. “


Not everyone agrees that the FEC should fundamentally revise its approach to the Internet. Bradley Smith, a former FEC Republican chairman who was a member of the commission from 2000 to 2005, says that the call to apply campaign funding rules to the Internet often comes from a place of “hysteria.” He refers to the so-called microtargeting of online ads, a practice that Weintraub practices argued highlights how dangerous the medium can be.

There has always been microtargeting, says Smith. “If you want to reach a particular Republican voter, you can advertise in WaterSki Magazine,” he says, adding, “If you see someone water-skiing, you can almost bet that person is a Republican.” Smith argues that while it might make sense to give the FEC clarity on how its old rules apply online, it shouldn’t invent any new rules for the Internet.

In the absence of new guidelines, tech companies have fled and set guidelines when new policy tactics emerge. In January, the Bloomberg campaign tried a new tactic in which prominent Instagram celebrities were paid to publish parody text messaging on their accounts to draw attention to his candidacy. Were they advertisements? The spots did not explicitly celebrate Bloomberg and were not placed on Instagram’s ad buying platform. Finally, Facebook, owned by Instagram, tried to change its rules to do justice to Bloomberg – and once allowed limited “branded content” from politicians, provided that they are clearly identified as sponsored posts.

At a conference in Washington shortly after Bloomberg introduced the tactic, Katie Harbath, Facebook’s director of public elections for global elections, pointed out that the FEC had not taken any significant action on the Internet in over a dozen years. Harbath said, “There are always new things, like this branded content work, that we need to rethink and think, ‘What should the guidelines be here?’ – because nobody else helps us think about how we have to do it. “

As much as she’d like 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. “For a platform, it’s easy to say,” Boy, it would be nice if the FEC or Congress gave further instructions, “because they know they won’t get it. It can be sincere or it can be one for them it’s easy to say, ”she says.

And although Weintraub says she would love the FEC if she had enough commissioners to do her business, this is not a guarantee that she will take action even then.

“Obviously we haven’t made any progress in the past six months if we haven’t had a quorum,” she says. “But frankly, we haven’t made much progress before.”

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