Fake Candidate Websites Are the New Political Attack Ads

Republican politicians finally figured out how to use the internet as a campaign tool, and they're really proud of themselves. Unfortunately, the GOP’s newfound web savvy has taken the form of a campaign program that's ethically questionable, intensely negative, and may or may not be against the law.

The National Republican Congressional Committee created a spate of fake websites for Democratic candidates that at first glance they look like normal, legit sites, but then rip into the candidate in the text. The faux sites also have donation forms that send funds to the NRCC. There are several fake microsites up now, and the committee says it's buying up URLs to create even more.

So is this shit even legal? It’s not an easy thing to answer. The spoof sites teeter on the fine line between parody and fraud, and the devil is in the details of the election law. According to Federal Election Commission regulations, political groups can't use a candidate's name in a "special project"—like a website—unless it "clearly and unambiguously shows opposition to the named candidate."

In other words, if it's totally obvious the site is just a digital attack ad and a poor excuse for a joke, it's fair game. If not—say, if someone actually donates money to the NRCC thinking that they're giving it to the Democratic candidate—that could constitute fraud. Oh and guess what, that already happened, to this Florida man who was duped into contributing funds to the NRCC by a fake candidate site. The Republican committee refunded the money.

The trouble is that determining whether something is clear and unambiguous is subjective as hell. Naturally, right-wingers are saying the website trick is incredibly clever and obviously just a ruse, and they’re just outplaying Democrats. The left, on the other hand, claims the sites are confusing to voters, which violates FEC rules.

Where are the nonpartisan experts in this? “The law seems pretty clear to me and the sites along these lines that I’ve looked at the past few months seem to clearly violate Federal Election Commission regulations,” Paul S. Ryan of the Campaign Legal Center said in an interview with TIME. “In my view it is not the case that these websites clearly and unambiguously show opposition. On the contrary the URLs of these websites would lead a reasonable viewer to think the websites are supporting the candidate.”

Election law attorney Joseph M. Birkenstock told Talking Points Memo it's not obvious these are opposition sites. "This is different. This is the first time I've seen one where they use a banner where by its own terms is actually express advocacy on behalf of that candidate," he said. "One word at the end of the line contradicts the banner and contradicts the URL."

Take a look. The URL, title, and photo all look like it's a real candidate website: "John Tierney Congress" in huge letters and under the domain, johntierney2014.com. It's not until you read the text that the negativity hits: "John Tierney may be infamous for his family’s involvement with their illegal international gambling operation in Antigua, but Tierney is also one of the most extreme and partisan members of Congress." Then under the donation form it ask you to donate if you’re “fed up” with the candidate. Clear and unambiguous? I'm not so sure.

The thing is, it probably doesn't matter. As these decoy microsites becomes more common, they're bound to push the boundaries until one inevitably crosses the legal line. But the FEC isn't likely to do much to enforce the law—at least not until the strategy goes way too far and some rich bonehead donates a heap of cash to the wrong party. Indeed, the agency is notoriously inept when it comes to enforcing campaign regulations, instead hopelessly gridlocked by the same partisan politicking it's meant to protect against.

Moreover, the fraud argument hinges on proving the website was deliberately deceptive, which is a hard case to make against the mighty First Amendment.

Which means we're unlikely to see a crackdown on these fake sites as before the midterm elections are over, and probably should expect more—from Democrats too. Welcome to the future of shady political campaigning, version 2.0. The negative opposition websites are the next iteration of the political attack ads we've suffered through on TV for decades, but more ethically murky. You can't donate funds through your television screen, and the ridiculous "paid for by X" message that plays at the end of an ad is much more in your face than scrolling down to the fine print.

It's just one example of how Washington's increasing ability to wield the internet as a campaign tool is opening up a Pandora's box of shady electioneering. "Technology just enables campaigns to do the things they have always done, but at a drastically greater scale, speed, and specificity," wrote Tarun Wadwha in Forbes.

"These are the early days of a new type of campaigning; as attention shifts online, the dollars will follow," he continued. The question, as the political machine already begins gearing up for 2016's presidential election, is how far campaigners are willing to take things—and as such strategies get more sophisticated, what regulators are willing to do in response. In the meantime, campaigns are only going to get more messy than they already are.