Internet Ad Rules Bring Together Strange Bedfellows

AP Photo/Jon Elswick

Some of the Facebook and Instagram ads linked to a Russian effort to disrupt the American political process and stir up tensions around divisive social issues, released by members of the House Intelligence Committee

The conservative backlash against proposals on Capitol Hill and at the Federal Election Commission to shed more light on internet political ads has been swift and predictable.

When the FEC moved unanimously this month to clear the way for a rulemaking that would require small, online political ads to include disclaimers saying who paid for them, GOP election lawyer Dan Backer raised the alarm that such rules “will do nothing but keep law-abiding Americans away from political speech.” When lawmakers on Capitol Hill introduced a bipartisan bill to expand disclosure for online campaign ads, Institute for Free Speech President David Keating warned that it “would shut off an indispensable outlet for small grassroots groups to get their message out.”

It’s the same line of attack that First Amendment champions on the right have deployed to tear down all but a few of the nation’s political money rules. But in the case of Russia’s interference in last year’s election, which spread disinformation via Facebook alone to 146 million Americans, conservatives’ knee-jerk alarmism may be falling on deaf ears. The Supreme Court has long upheld the principle that Americans should know who is paying for political ads. And a growing number of Republicans, alarmed by the seriousness of the threat posed by foreign election meddling, are joining in calls for new internet rules.

The FEC’s recent action was rare break from its habitual partisan paralysis, and a departure from precedent. Disclaimers identifying ad sponsors are required for political TV, radio, and web ads, but character-limited ads on digital platforms have been exempted. All three Republicans on the FEC, which is currently shy one commissioner, joined the agency’s one Democrat and one independent in voting to begin writing new internet rules.

“Foreign interference in U.S. elections is inimical to our nation’s interests and democratic values,” Republican commissioners Caroline Hunter, Lee Goodman, and Matthew Petersen said in a statement explaining their decision. “The need to prevent such interference is an issue that transcends partisan politics, and on which all Americans can agree.” In her own statement, Democratic commissioner Ellen Weintraub said that the agency’s “ability to shatter its usual gridlock and move forward shows the gravity of our current situation.”

Another sign that the usual far-right talking points are sounding stale this time is that a half-dozen Republicans have signed onto the House version of the Honest Ads Act, which like its Senate counterpart would require the largest digital platforms to publicly report details about political ads. The disclosures would mirror those required for TV stations, and would cover who paid for the ad, who was targeted, its cost and timing, and the ad itself. Like the FEC rules under consideration, the bill would also require disclaimers identifying ad sponsors.

There’s still plenty of time for the FEC’s fragile consensus to fall apart, of course. Congress is too distracted by tax legislation and spending disputes to take up internet ad legislation any time soon. Facebook, Google, and Twitter, the big three platforms targeted by the new rules, have also stopped short of endorsing the legislation, stressing instead the steps they are taking to regulate themselves—and their lobbyists may yet mount a full court press to kill the bill.

But the Senate’s leading opponent of campaign-finance regulation, Majority Leader Mitch McConnell, has lost clout within his own party. And last year’s foreign election interference, which also has brought to light Russian attempts to hack American voting systems, as well as the failure of foreign agents to disclose their activities, have raised national security issues that the GOP traditionally champions. That makes efforts to regulate foreign disinformation on the internet a rare opportunity for the two parties to come together.

The FEC’s call for public comment on the question of internet regulation prompted 144,000 Americans to weigh in, both in stand-alone public comments, and on petitions circulated by progressive groups such as Credo Action, People for the American Way, Common Cause, and Public Citizen. The vast majority of public comments argued that FEC rules need to be updated to capture online political ads, which hit $1.4 billion last year—50 times what was spent in 2004.

Conservatives object that new internet restrictions would block ordinary Americans and small, grassroots groups from speaking freely in politics. An analysis by the Institute for Free Speech even raises the specter that the Honest Ads Act, for one, would impose the heavy hand of government on individual websites and email communications. But this line of argument conflates unpaid political discourse and communications, which are not even under discussion, with paid campaign ads. The legislation would apply only to the largest online platforms, and to political advertisers who spend $500 or more on online platforms that receive at least 50 million unique visitors in the U.S. per month.

The bill’s authors deliberately tailored the legislation as narrowly as possible, according to Rachel Cohen, a spokeswoman for Virginia Democrat Mark Warner, who wrote the Senate version of the proposal with Minnesota Democrat Amy Klobuchar and Arizona Republican John McCain. “It was intended to be the lightest possible touch,” Cohen told NBC News. “When you go further in legislation, it gets more difficult.” Conservative critics will continue to howl about government bureaucrats out to silence average Americans. But tech titans, not government agencies, seem to control political discourse these days—and even Republicans are looking for new solutions.

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