There’s broad agreement among agencies, organizations, and lawyers across the political spectrum that gaps in the federal laws covering digital political activity made Russian interference in the 2016 elections far too easy. But responses to protect the integrity of American elections from this critical problem have been highly fragmented.
There are essentially four ways in which digital electioneering could be addressed. First, the federal agency charged with preventing foreign nationals from spending money on U.S. elections could simply revise its regulations. The Federal Election Commission could help protect elections by applying many of the rules for political television advertising to digital. But it hasn’t.
In fact, although the FEC held two days of show hearings last year, the agency has done nothing to address digital political advertising, and has all but announced that it will take no action before the 2020 elections.
Second, Congress could update U.S. election laws — most of which are more than 40 years old — for the digital age. In October 2017, a bipartisan coalition of senators and representatives introduced the Honest Ads Act, which was designed to deter and detect foreign interference by strengthening disclosure of the spending behind digital campaign activity. The bill didn’t even receive a hearing last Congress. This year, the House passed the provisions of the Honest Ads Act as part of a sweeping election reform package, but Senate leadership has made clear that it’ll progress no further in this Congress.
Third, in the face of governmental inaction, major internet platforms have partially filled the vacuum. Google, Facebook and Twitter have implemented verification processes and searchable archives for political ads, and advertisers have pledged to increase transparency. But enforcement of these measures can charitably be described as inconsistent. In any event, voluntary self-regulation is inherently insufficient: any of the platforms could diminish or drop its requirements at any time, and other actors in the digital advertising space aren’t bound by these measures at all.
Finally, and most substantively, some states have passed laws to advance digital transparency. Recently, Vermont, Washington, and Wyoming have passed laws to explicitly define political advertising to include digital ads, thereby establishing parity between traditional and digital media.
Bolder efforts have passed in Maryland, New York (p. 158), and California, and lawmakers in North Carolina are currently considering a bipartisan package. The cores of these enhancements are measures to prevent unlawful digital advertising from escaping undetected. Generally, these states mandate the storage of digital political ads in online archives, which ensures the ads are visible not just to their targeted audiences, but also to law enforcement agencies, journalists, and watchdog groups. This greatly increases the chances that illegally financed ads will be caught — or not run in the first place.
The states differ somewhat in the details of their ad archives. Maryland and California require the respective advertising platforms to host the archives, while New York’s is maintained by the State Board of Elections. North Carolina’s bill would mirror the New York system in creating a central database.
Another distinction between the repositories is which platforms they reach. In California, the law applies to ads on any digital platform, as long as the advertiser spends more than $500 in an election cycle. New York’s law is more limited, reaching only platforms with 70,000,000 monthly users, and Maryland falls in-between, applying to ads on platforms with 100,000 monthly users.
Although publicly claiming to be supportive of regulation, the major online platforms have largely opposed the new state measures. For example, Google currently refuses to sell ads for state and local elections in Maryland and Washington, arguing that the transparency laws in those states render political advertising unprofitable.
This balkanized system — in which rules vary from state to state and platform to platform — is less than ideal for both the advertising community and the public. Varying requirements increase costs to advertisers and inhibit the public’s ability to obtain information about the digital advertising they receive. As more states move to enact new digital advertising rules in response to the federal government’s inaction, the appeal of a uniform federal solution seems likely to increase, ultimately lowering complying costs, enhancing transparency, and deterring illegal activity.
Adav Noti is Senior Director, Trial Litigation & Chief of Staff at the Campaign Legal Center, a nonpartisan 501(c)(3) that works to reduce the influence of money in politics and to support unrestricted access to voting.