In the United States, internet providers have much broader immunity than other media (television, radio or newspapers) for liability for publishing false information. Currently, political internet ads are exempt from requirements for a disclosure required under the Federal Election Campaign Act of 1971, for political ads on television, radio and newsprint.
In 2017, the Honest Ads Act (S. 1989), was sponsored by Senators Amy Klobuchar (D-Minn.), Mark Warner (D-Va.), and John McCain (R-Ariz.) to promote regulation of campaign advertisements online by online companies such as Facebook and Google. This bill would have established that paid internet ads could qualify as “public communications” or “electioneering communications,” and as such, would require source disclosure. The bill would also require major internet companies to maintain and publish records about qualified political advertisements that have been purchased on their platforms.
There was significant push-back on this legislation from companies such as Google, who argued against regulation as being too restrictive. Instead, it favored self-regulation. The bill had only one hearing in the GOP-controlled Senate and did not get a dedicated hearing in the GOP-controlled House during the 115th Congress.
After the 2018 election, the 116th Congress included language from the Honest Ads Act in the “For The People” Act (H.R. 1, 2019) passed by the Democratic-controlled House.
The Honest Ads Act (S. 1356) was reintroduced in the GOP-controlled Senate by Klobuchar, Warner and Lindsey Graham (R-S.C.) with strong support from outside groups including both Facebook, and Twitter.
Initially, prospects seemed good for passage of the Honest Ads Act, as Congressional Democrats and Republicans united in condemning foreign meddling in elections as “abhorrent,” and the bill had bipartisan support. However, Senate Majority Leader Mitch McConnell (R-Kent.) has to date not allowed the Act to come to the floor of the Senate for a vote.
Craig Holman, Ph.D., a government affairs lobbyist with Public Citizen, wrote in an opinion that this was because “McConnell sees such meddling in U.S. elections as favorable to Republican candidates.”
Another major setback in election oversight occurred in August, with the effective shut-down of the Federal Election Commission (FEC).
The FEC is chartered with protecting the integrity of the campaign finance process. It is composed of six commissioners who are appointed by the president and confirmed by the Senate. By law, no more than three commissioners can represent the same political party, and at least four votes are required for any official commission action. This structure was created to encourage nonpartisan decisions. In August, FEC vice-chairman Matthew Petersen resigned, leaving the agency in limbo. With only three members remaining, the group has less than a quorum until the president appoints a new commissioner.
Petersen is credited, over his 11 years at the FEC, in guiding decisions to reject regulation of internet outlets. These decisions led to the growth of small-dollar donations and political engagement on mobile devices, fostering the explosion of politics on the internet.
Peterson’s resignation stalled all ongoing rules efforts by Democratic Vice Chair Ellen Weintraub, who was pushing to develop a transparency rule for political groups that advertise online. The rule would have mandated “paid for by” disclaimers, like the ones long required for political ads in broadcast and print media.
Google, Facebook and Twitter are all implicated in the publishing of illegal political ads funded by foreign agents during the 2016 and 2018 elections. They have argued in favor of self-regulation rather than legislation. Following the release of the Mueller Report, they have all instituted new policies regarding political advertising on the internet, including publishing political ad archives, with varying levels of transparency.
Recently, Vice President Joe Biden’s presidential campaign sent requests to Google, Facebook, and Twitter asking the companies to remove some ads produced by President Donald Trump’s reelection campaign, arguing that the ads make false allegations. The ads allege that the former vice president promised Ukraine $1 billion if the country fired a prosecutor investigating a company linked to his son Hunter. According to media reports, the ads were rejected by CNN and NBC Universal, and there appear to be no grounds for the claims.
Lee Goodman, a Republican and former chairman of the Federal Election Commission, told CNBC that he did not think Facebook should be tasked with determining the truthfulness of political campaign ads.
The Democratic National Committee appears to disagree. The DNC Deputy War Room Director, Daniel Wessel, said in a statement: “Any false ad should be fact-checked and removed, including this one. Facebook owes that to its users.”
But Google, Facebook and Twitter all responded that the ad did not violate their policies. Facebook sent a letter to the Biden campaign explaining their policy, “when a politician speaks or makes an ad, we do not send it to third-party fact-checkers.”
Executive Director of Issue One, Meredith McGehee, commented on legislation for internet political advertising as her campaign reform group sees it:
“It’s kind of like saying there’s a law against robbing banks. Ninety-nine point nine percent of the population will still not rob a bank if there wasn’t a policeman. But there’s always that element there that’s going to be looking for an opportunity to get away with it.”
The situation today is that the Honest Ads Act has stalled in the GOP-controlled Senate, the Federal Election Commission is stalled without a quorum until the president appoints a new commissioner, and there is currently “no cop on the block” for assuring fact-checking or transparency concerning political ads on the internet.