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The FEC took a tiny step to regulate online political ads, but not in time for 2018 elections

But it won't go into effect before the 2018 midterm elections

by Alex Thompson
Mar 15 2018, 3:57pm

Following revelations that Kremlin-aligned Russians used Facebook, Google, and Twitter to meddle in the 2016 presidential election, the Federal Election Commission took a tiny step on Wednesday toward requiring more disclosures for at least some online political ads.

In a unanimous 4-0 vote, the FEC officially began the rulemaking process by requesting public comment on two competing proposals that would require web advertisers, including those in social media, to disclose who is paying for political ads on the internet.

“I would have preferred to do something broader than this but I am delighted that we could at least get unanimous support to get this narrow proposal moved forward,” said FEC Vice Chair Ellen Weintraub just before the commission voted. It’s not going to solve all the problems that we saw in the last elections but it will be a step in the right direction.”

The Google exemption

Currently, most ads hosted on Facebook, Google, and elsewhere on the web fall under the “small items” exemption that does not require clear disclosure of who is funding it. That exemption was originally used for items like buttons and pens where printing “paid for by x” was deemed impractical.

Read: Why online political ads won't be regulated in 2018

Google successfully lobbied the FEC in 2006 to qualify for the exemption and the commission gridlocked in 2011 when Facebook and other internet companies did the same, effectively allowing the companies to follow the guidance Google received.

Despite exponential growth in the amount of political money flowing into tech platforms to affect public opinion, the commission has not updated online political ad rules since 2006.

After 60 days of comment and a period to analyze the submissions, the commission will hold a hearing on the matter on June 27th where internet companies are expected to weigh in. Even the most optimistic commissioners predicted that the rulemaking process wouldn’t be completed until November, meaning that platforms will still be largely unregulated for the 2018 midterms.

The problem of "issue ads"

But even if the rule were implemented today, it would not ban many of the types of ads bought by Russians in 2016. The FEC only has the power to regulate ads that directly advocate for the election or defeat of a federal candidate but not any that are “issue advocacy.” Many political interests run such “issue” ads to avoid disclosure laws even as the promotions are clearly meant to help or hurt a particular candidate. The Kremlin-aligned Internet Research Agency also bought such ads in 2016.

Read: No one is tracking the illegal political ads in your Facebook news feed

“We know that the vast majority of Facebook ads purchased by Russia in the last election were issue ads,” Democratic Sen. Amy Klobuchar of Minnesota, who is sponsoring a bill that would give the federal government much more authority over online political ads, said in a statement. “Our top intelligence officials have made it clear that foreign adversaries are currently interfering in 2018 elections—we can’t afford to wait.”

Weintraub, other Democratic-appointed FEC commissioners, and some campaign finance watchdogs have been pushing for years on more stringent regulation of online political ads. But the 50-50 partisan breakdown of the FEC has left the commission stuck on even the smallest matters for the last several years.

The revelation of the Russian bought ads seemed to have temporarily broken the longstanding gridlock on the FEC. The Republican members of the commission, long skeptical that more regulations are the answer, agreed with their Democratic counterparts that online ads ought to be more transparent.

Commission gridlock

“In my 10 years in politics this is the first time i've ever seen the FEC even attempt to do something about online marketing,” Jack Gerard, the founder of political consulting firm Contra D.C. and a veteran of Republican campaigns, told VICE News. “While they might ultimately make a relatively small decision, any decision at all from the FEC is a big deal and something us digital consultants/hacks are watching closely.”

Even if the FEC reaches a consensus—all four commissioners have to agree and so each one has veto power—the commission will still have to grapple with enforcement.

Facebook, Google, and other online platforms are already stuffed with ads that violate current FEC laws because there is no easy way to monitor all the ads being run online. The internet companies do not have any liability for illegal political ads run on their platform; that belongs to the purchaser of the ad.

The barrier to entry to run ads on sites like Facebook is so low and the process is so opaque and micro-targeted that it’s impossible for the FEC to look through every online political ad. It’s unclear if Facebook itself even has that capability, although the social media giant says they are testing such a system in Canada. The company says it is on schedule to implement the system in the US this summer.

Follow Alex on Twitter @AlxThomp

Cover image: Facebook CEO Mark Zuckerberg meets with a group of entrepreneurs and innovators during a round-table Nov. 9, 2017, in St. Louis. (AP Photo/Jeff Roberson)

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