By Dorothy Windham
In 2006, nobody owned an iPhone. Most Americans got their news through television, print, or radio stations. Far fewer people had social media accounts, and Facebook users weren’t being served targeted ads or promotions from major brands. At the time, a Pew survey found that only 14% of cell phone owners used their devices to access the internet, and barely a third of them texted.
2006 was also the last year that the Federal Election Commission (FEC) substantially updated its digital advertising guidelines. In doing so, the commission amended its definition of “public communication” to include “internet communications placed on another’s website for a fee.” From that point forward, digital ads needed to include a disclaimer identifying the organization that paid for them, and, when applicable, whether a candidate had endorsed the message. With some exceptions, all types of “public communications” regulated by the FEC require such disclosures — these include television and radio advertisements, large signage, and printed materials.
While the 2006 rulemaking recognized the internet as a “unique and evolving mode of mass communication,” it didn’t successfully account for its eventual evolution. By thinking of internet ads as simply those “placed on another’s website for a fee,” the commissioners failed to predict how paid online political communications would evolve beyond a sort of digital classifieds section. Of course, the internet still provides ample opportunity to place an ad on someone else’s digital real estate, but the commissioners — likely because they didn’t see it happening very often in legacy media — failed to fully foresee the idea of digital promotion.
Imagine if you could pay to move existing newspaper articles from the second page to the front page of your local paper. Or if you could write a check to a popular op-ed columnist and have them extoll your candidate of choice. It’s possible that these exchanges did happen offline, but certainly not at the frequency (or visibility) that would lead the commissioners to believe that this would come to make up a significant portion of future online advertising. On social media, such forms of paid “boosting” are commonplace — and carry no disclaimers.
Finally, this year, the FEC has gotten around to updating its rules to accommodate these digital realities. After much deliberation and two rounds of public comment, the commissioners met in December to try and bring digital ad rules up to speed. The new rules are an undeniable improvement, expanding the definition of “public communication” to cover ads in devices, apps, streaming platforms, and so on. Unfortunately, a last-minute revision undercut some of this progress.
Two critical words were struck from the final version that the FEC voted to advance. The original draft rulecovered content that was placed “or promoted” for a fee. That distinction would have included the paid boosting of organic posts by political campaigns or Super PACs, as well as financial partnerships with influencers to create certain content. Just when it seemed like the FEC was about to correct its lack of imagination from more than a decade earlier, it backtracked — partially as a result of outside pressure.
Free speech organizations took issue with several parts of the new rule, bolstering the arguments of GOP commissioners that promotional disclaimers would “unduly burden” freedom of speech for campaigns and social media influencers — who are playing an increasingly large role in digital outreach. Trump-appointed Commissioner Sean Cooksey cited the FEC’s “internet exemption” in his criticism of the original draft, drawing on a 2002 rulemaking that described the internet as a “bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.”
The rulemaking Cooksey cited used a narrow interpretation of the Bipartisan Campaign Reform Act of 2002 (BCRA) which only applied disclaimers to political committee websites and large email campaigns; essentially, the “internet exemption” kept digital messages from being regulated as “public communications.” In 2004, that interpretation was overturned by Shays v. FEC, when the U.S. District Court for the District of Columbia ruled that Congress had intended BCRA to apply to all forms of political advertising. The concept of the “internet exemption” endures, however, and is still being used to argue that, because online communications are democratized and largely not subject to gatekeepers, they are therefore a special form of speech that has no need for the same disclosure rules as other political advertisements.
Disclosure rules exist for a reason. As influencer marketing becomes more and more popular, the lines between content and advertisement blur, and it is especially important that users are given indicators to distinguish between the two; a robust internet exemption would hinder that. Even run-of-the-mill content creators must follow Federal Trade Commission guidelines to make the appropriate disclosures and avoid violating advertising laws. But those rules apply to individuals promoting haircare products or yoga classes, not political messages.
In the closing days of the 2020 election, paid political influencers continued to operate on Meta and Alphabet’s platforms, despite these platforms implementing blanket pauses on new political ads. It’s risky for these companies to allow political advertisements in the final days of a campaign, as their automatic screening systems often fail to detect incitements to violence or harmful misinformation. Influencer advertising, however, is negotiated over email or private messages and can’t be as easily paused. Without disclaimers, paid political endorsements can masquerade as genuine content, which is especially dangerous coming from established influencers. The potential for astroturfing is immense, especially because the FEC’s final draft rule does not require disclaimers on promoted posts. A campaign or PAC could manufacture the appearance of widespread support for a candidate, and users would be none the wiser.
The FEC is at an inflection point. If GOP-appointed commissioners continue to use the “internet exemption” as their guiding star, the odds for proper digital disclaimers seem slim. However, rules for promoted content are now being considered as a separate item, which leaves the door open for future regulations. As campaigns expand their investments into political influencers and amplified content, it will be increasingly difficult for commissioners to justify any exemptions — and increasingly clear that the FEC has a role to play in the digital world.