Democracy 21 files rulemaking comments with FEC, calls on Commission to address foreign spending to influence federal elections, and to update regulations governing online ad disclosure

In rulemaking comments filed today with the Federal Election Commission (FEC), Democracy 21 President Fred Wertheimer called on the Commission to take action, through enforcement and stronger regulations, to address the problem of foreign spending to influence federal elections.

Wertheimer also called on the Commission to undertake a rulemaking to update its regulations that govern the requirement for campaign messages on the Internet, including Facebook ads and text messages, to include a “disclaimer” that identifies the person behind the spending.

The Democracy 21 comments were filed in response to a notice published by the FEC inviting public comment on whether the agency should open a formal rulemaking to update its disclaimer regulations. Democracy 21 has advocated the FEC hold such a rulemaking on multiple occasions dating back to 2011.

In the comments filed today, Wertheimer noted the importance of the agency acting to address the problem of foreign spending to influence federal elections:

There has been a flood of revelations about what really happened in the 2016 U.S. presidential election, and it indicates that we experienced nothing less than a planned attack on our democracy by a hostile foreign power which, in large part, used the Internet as its weapon of choice to sabotage a presidential election.  Whether, and how, we respond as a nation to this attack—and whether we take adequate steps to guard against its recurrence—will determine if our democracy can continue to make progress towards its ideal of providing free, fair and open elections that are protected against destabilizing foreign intervention.

Wertheimer noted that:

The nation is facing a crisis in its need to restore the integrity of our democracy by safeguarding future elections from foreign interference, and it is the Commission which has primary civil jurisdiction to administer and enforce 52 U.S.C. § 30121, the primary statutory provision which prohibits foreign nationals from making expenditures to influence U.S. elections.  The Commission should be doing everything in its power with all deliberate speed to take steps to ensure that section 30121 is deployed with maximum effectiveness, through interpretation and enforcement, to help ensure that no foreign national, much less a hostile foreign government, again spends large sums for the purpose of influencing American elections.

Wertheimer praised FEC Commissioner Ellen L. Weintraub who has repeatedly called for aggressive agency action to address the foreign national problem.  He said, “The Commission has committed a serious error in failing to heed Commissioner Weintraub’s many calls to action on this important matter.”

With regard to the requirement for a disclaimer on Internet campaign communications, Wertheimer noted the importance—and constitutionality—of the disclaimer provision in the law:

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

The comments explain that since it wrote its disclaimer rules in 1995, the Commission has failed to update those rules to apply the disclaimer requirement to Internet ads. The old rules are clearly out of date, and use regulatory language that is meaningless in the context of the Internet:

The disclaimer regulations at issue here were drafted in 1995 and have never been comprehensively updated to take account of the explosion since then in the use of the Internet for campaign communications.  Indeed, the regulatory exceptions invoked here do not by their language address the Internet at all—they are framed around bumper stickers, pins and pens (§ 110.11(f)(i) (“small items” exception)) as well as skywriting, water towers and “wearable apparel” (§ 110.11(f)(ii) (“impracticable” exception)).  With language that is largely meaningless in the context of the Internet (what does skywriting suggest about text messaging?), the past efforts by the Commission to use the advisory opinion process on a case-by-case basis to apply inapplicable regulatory language to Internet campaign communications have resulted in a grab-bag of inconsistent and inconclusive results which provide no meaningful guidance at all.

The comments state that there are several possible ways to make the disclaimer requirement work even in the context of character-limited or “small” ads on the Internet:

Innovation, not exemption, is the answer.  The ANPRM notes several possible ways to implement an effective disclaimer requirement that balances the need for transparency with the constraints of perceived space limitations which, in the limitless domain of the Internet, are often not constraints at all.  Thus, the requirement for a “roll over” or “hover” message that contains the disclaimer information, or for a link to a landing page that contains the disclaimer, are just two practical ways to solve at least part of the problem.  82 Fed. Reg. 46937.  So too, the Commission should closely examine the results of experiments by state governments which have addressed precisely this issue, and look there to see what works and what doesn’t, incorporating best state practices into the Commission’s own regulations. Id. at 46938 (citing California and Maryland regulations addressing disclaimers on Internet advertising).

Finally, Wertheimer urged the Commission not to wait for Congress to enact legislation dealing with the disclaimer requirement.  The comments state:

Although Congress should act in this area to strengthen the disclosure and disclaimer requirements, as well as the protections against foreign national spending, the prospect for congressional action on campaign finance issues is always dim.  Indeed, Congress has enacted no significant campaign finance reform legislation in the last 15 years.

For that reason, the Commission should not miss an opportunity to exercise its existing statutory authority to improve its regulations while it waits to see if Congress might provide additional or different authority.

Read the full comments here.

Attachments: (1 total)