Express Advocacy Laws in the Era of Digital Advertising

By Michael Clauw

In 1976, a single footnote in the Supreme Court’s Buckley V. Valeo decision established a widely used loophole in campaign finance law. In seeking to determine the constitutionality of the Federal Election Campaign Act of 1971 (FECA), the court ruled to uphold the legality of political expenditure limits established by the law, but determined that the law’s definition of “political expenditure” was too vague as written. The court ruled that limits would only be applied to “expenditures for communications that in express terms advocate[d] the election or defeat of a clearly identified candidate for Federal office.”

To clarify further, the justices added a footnote to provide examples of “express terms” that could be used in communications that would trigger a political expenditure, “such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” “reject.”

While a reasonable person might conclude that the courts inclusion of “such as” leaves a degree of subjectivity in determining what is and isn’t political advocacy, literalists have used this footnote as a guidebook for exactly what language to avoid when wishing to skirt campaign finance laws. These terms, often called the “eight magic words” of express advocacy, are treated as rhetorical landmines to step around when wishing to support a candidate without disclosing it.

One recent and particularly brazen use of this loophole came from the group Iowa Values, which ran a series of digital ads promoting Joni Ernst’s 2020 Senate candidacy. Although the group spent thousands of dollars on ads stating that Ernst was “Fighting for Our Iowa Values,” it did not register with the Federal Election Commission (FEC) as a political committee — as FECA requires of any organization whose major purpose is political activity. Iowa Values argues that, because its campaign did not use any of the express advocacy “magic words,” its ads promoting Ernst were simply “issue ads” and hence not subject to FECA requirements.

Others disagree. In December 2019, the non-partisan voter advocacy group Campaign Legal Center (CLC) filed an administrative complaint with the FEC, arguing that there is “clear evidence that Iowa Values’ major purpose was to promote the reelection of U.S. Sen. Joni Ernst.”

The FEC, which — by design — is ineffective at moving forward complaints due to its split partisan makeup, failed to garner enough votes to dismiss the complaint. This then allowed CLC to sue the FEC for delay — which it did in June 2020. In October 2020, the U.S. District Court for the District of Columbia ruled in favor of CLC, saying that the FEC’s failure to act was unlawful.

While, on the surface, this may look like a loss for the FEC, it is actually the result of a well-executed strategy concocted by Democratic FEC Commissioner Ellen L. Weintraub. In the past, after Republican and Democratic Commissioners found themselves at a 3–3 impasse, they would acknowledge that no one was going to be changing to their mind and vote to dismiss the complaint. However, since a vote to dismiss requires four votes, the three Democrats realized that if they refused to dismiss, and then refuse to defend when sued for delay, it would trigger a rarely used campaign finance law which allows the complainant to sue the subject of their complaint directly in federal court. This ultimately takes the decision out of the FEC’s hands, but according to Weintraub, that is ok: “It is not like I think the courts are automatically going to come to the same decision I would come to, but I think it’s got a better shot.”

We will soon see what type of decision the courts will make, as, on February 12, 2021, CLC filed suit against Iowa Values in the U.S. District Court for the District of Columbia. While it is unknown how this particular judge will rule, a ruling in CLC’s favor could have far-reaching implications in establishing what is and isn’t paid political speech. The question remains: how does a judge define political speech in a way less narrow than “it must use one of these eight terms,” but less vague than “I know it when I see it?”

Depending on where that line is drawn, many other uses of paid speech, long argued to be “issue ads,” could also be pulled out of the gray area. At the very least, a broadened definition of express advocacy would give organizations and their lawyers pause before putting most of their revenue toward brazen efforts to promote political candidates.

Yet, even if the definition of express advocacy were to be significantly broadened, political advertisers would still be able to take advantage of modern digital ad tech to run “issue ads” that carry the same persuasive weight as traditional campaign ads. Thanks to political microtargeting tools available to advertisers on platforms like Facebook and Google, groups can be far subtler in their messaging when they know only a handpicked, primed group of voters will be hearing it.

One example of this type of advertising is demonstrated by a Facebook ad, sponsored by the conservative PAC Restoration Action, which ran before the 2020 Wisconsin Supreme Court election.

On the surface, the ad does not seem to endorse either candidate; it simply informs that one candidate is endorsed by the NRA, while the other is endorsed by Women Lead. But, while the suggestion of who to support cannot be concluded strictly from the message, it can be inferred from the audience that is hearing it. This particular ad was shown to more than twice as many men as women, suggesting that Restoration Action chose a particularly gendered set of targeting criteria. Given that Restoration Action wanted voters to support the NRA-endorsed Dan Kelly, the simplest explanation, and one that is supported by Facebook’s audience data, is that the group targeted the ads to voters who are “interested in the National Rifle Association” on Facebook.

While this type of ad undoubtedly follows the letter of campaign finance law, it is certainly at odds with its intent. If the goal of political spending disclosure requirements is to provide a transparent record of funds spent to help elect a particular candidate, then an ad promoting a candidate’s NRA endorsement shown only to NRA supporters should be subject to those requirements.

Still, the difficulty in subjecting an ad like this to those requirements lies not only with the current, narrow definition of political advocacy, but with the present inability to prove the exact targeting criteria of the ads. Since Facebook does not disclose ad targeting criteria, it is impossible to prove that it was the NRA and not another male-skewed interest category that Restoration Action chose to target. However, there are several efforts both inside and outside of government looking to lift the veil from online ad targeting criteria.

One of these outside efforts is the Ad Observatory project from the Center for Cybersecurity at NYU. The project, run by researchers and supported by thousands of volunteers, aims to shine a light on exactly which behavioral profiles on Facebook would trigger certain political ads on the platform. When volunteers install the Ad Observatory browser extension, the ads that Facebook serves them are compared with the interest categories that Facebook has tagged them with. That information is sent back to NYU’s database, which, with enough data, is able to start making guesses as to the targeting criteria for individual ads. Disapproving of this effort at grassroots transparency, Facebook suspended the researchers’ accounts and functionally put the project on ice in August. This action was met with near-universal reproach, with academics and members of congress demanding Facebook answer for its shameless challenge to transparency.

While the prospects of the Ad Observatory’s full return are uncertain, some members of congress are trying to tackle the transparency issue head on with legislation. Earlier this year, Congresswoman Lori Trahan (MA-03) introduced the Social Media Disclosure and Transparency of Advertisements (DATA) Act, which would create an ad library containing detailed information about every targeted ad run by a major online platform. The ad library would only be accessible to academics and certain government officials, so it is a step removed from full public transparency, but it would at least enable certain individuals to study the many problems with targeted ads without the risk of having their access revoked.

Another bill, which prefers a more direct approach to tackling the issue demonstrated by the Restoration Action ad, is a ban on microtargeted political ads introduced by Congresswoman Anna Eshoo (CA-18). The intent of this bill is not concerned with transparency of targeting or spending patterns, but rather with preventing groups from spreading “conflicting and contradictory messages to different people” which create “private, unchecked silos” of information. Nevertheless, it would functionally prevent ads like the Restoration Action ad from running. Since a large portion of the voting block is opposed to the NRA, an ad promoting Dan Kelly’s NRA endorsement to a wide, untargeted audience would be politically foolish.

To be successful, any one of these efforts must overcome a great deal of opposition from varied fronts. To prove its case against Iowa Values, CLC must prevail over a widely accepted — albeit impractical — interpretation of a Supreme Court ruling. NYU’s researchers, even with the public’s backing, will need more than moral authority to supersede Facebook’s terms of service. Rep. Trahan’s ad library will likely face backlash from an advertising industry that doesn’t want academics and government officials poking around a database filled with their trade secrets. And Rep. Eshoo’s bill, perhaps the most aggressive effort of them all, can only pass with the majority support of elected officials whose marketing teams undoubtably rely on political microtargeting to help them get re-elected.

Of course, any change worth making will face resistance. All in favor of increasing the level of transparency around campaign spending should follow these efforts closely and promote further attempts to push the issue forward.

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