The Federal Election Commission on Thursday wrapped two days of public hearings to weigh new rules on digital ad disclaimers. The commission heard from a total of 18 witnesses across the two days, including testimony from campaign finance and constitutional lawyers, as well as digital campaign strategists.
The goal for the FEC is to act ahead of the midterm elections, at least according to FEC Vice Chair Ellen Weintraub. In her opening remarks, Weintraub, a Democrat, said she hoped to “get a rule in place this year,” so as to help deter hostile foreign actors poised to interfere in the midterms.
One of the biggest issues for the commission to resolve is how an online ad disclaimer would actually appear. Is it practical to apply stringent rules governing the size, length and placement of such disclaimers?
“I’m looking for a clear, objective, and administrable standard that’s platform neutral, that tells advertisers how to go from the requirement of a full disclaimer on the face of the ad to an alternative disclaimer or an indicator – a symbol on the ad that lets the reader know a full disclaimer is one easy click away” said FEC Chair Caroline Hunter, a Republican.
If the commission does act ahead of this year’s midterms, the rulemaking will be a narrow one. Commissioners are only targeting express advocacy—ads that directly advocate for the election or defeat of a specific candidate. The FEC isn’t dealing with issue ads.
The FEC’s Notice of Proposed Rulemaking (NPRM) and call for public comment this March centered around two alternative rulemaking approaches: Alternative A carries over existing print, radio and broadcast disclaimer regulations into the realm of “internet communications” largely intact; Alternative B applies a general rule that disclaimers be “clear and conspicuous” to all online advertising and makes room for an “adapted disclaimer,” among other exceptions, when such rules are deemed burdensome.
The commission noted the final version of the rule could incorporate elements of both approaches. A crucial part of the debate this week before commissioners centered on whether “one click” or “face of the ad” disclaimers strike the right balance between free speech and the goal of greater transparency.
“If there’s a question about whether an ad will be struck down by the FEC, usually the answer is we’re not going to run that ad,” said Doug Hochberg, Chief Digital Officer at the Republican National Committee. “We would like to advocate for a ‘one click’ rule—the disclaimer for who’s running the ad is never more than one click away.”
The FEC’s public hearings follow the digital industry’s initial attempts at self-regulation. Earlier this spring, Facebook announced its intention to implement the first set of major changes, including verification requirements for Facebook page admins and the launch of an archive of political ads run on the platform that will include detail on the level of spend and some demographic information on who consumed the ads. The archive officially launched in late May at the same time the platform began enforcing its new verification rules.
Meanwhile, the Digital Advertising Alliance recently launched an initiative that includes a “PoliticalAd” icon for advocacy advertisers in top-level campaigns. The DAA has urged the FEC to use the initiative as a model in its regulatory effort.
Dave Grimaldi of the Interactive Advertising Bureau (IAB) told commissioners an icon is the approach many in the industry favor, citing concerns over any rule that focuses on “characters, pixels, seconds, font size” or “other visual factors.”
Another concern expressed by some digital strategists: shorter online ad formats, particularly the 6-second “snackable” ad, would be endangered if the FEC took a more heavy-handed approach to disclaimers.
In a joint opening statement on Thursday, the NRCC and NRSC warned some of what the FEC was mulling would be an unnecessary burden on digital ad makers.
“The proposal to extend ‘Stand By Your Ad’ requirements to online videos is not compatible with the 6 second online bumper ad, which has proven to be an effective way to capture people’s attention and drive efficiency,” said Thomas Reiker, Deputy Digital Director at the NRSC, “If we have to devote 4 seconds to the disclaimer, we simply won't run 6 second ads.”
Notably absent from this week’s hearings: reps from Facebook, Google and Twitter. While all three submitted written comments to the FEC during the open comment period, they declined to appear in public session before the commission.
At the end of two days of public testimony, even the prospects for a narrow rulemaking aren’t clear. For one thing, the FEC has consistently shown little ability to act quickly on regulatory matters. And given the makeup of the commission, it’s perpetually deadlocked. At the moment there are just four commissioners. President Trump hasn’t nominated anyone to fill either of the commission’s two vacancies.
At more than one point during this week’s public sessions commissioners discussed a potential timetable for proposing a new rule. FEC Chair Hunter floated the possibility of putting out a proposed rule “this summer.” Weintraub suggested that was “optimistic.”