The Federal Election Commission Must Update Rules to Reflect Today’s Internet Use

Brendan Fischer
Dec 12, 2016
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CLC and D21 Submit Comments Calling for “Public Communication” Definition to Include Mobile Ads, Address “Internet Exemption” loophole

The Federal Election Commission is updating and clarifying its rules for the 21st century.

Last week the Campaign Legal Center and Democracy 21 submitted comments in support of the agency’s proposal to revise the definition of “public communication” to take into account that paid ads seen on Internet applications are no different than paid ads seen on websites.

Because the current definition was drafted a decade ago, when websites were the predominant outlet for paid internet advertising, it is silent on digital ads that appear on mobile apps.  But digital political ads are increasingly viewed on apps rather than a browser window: $1 billion was spent on digital advertising in the 2016 election cycle, about half of which went towards mobile and social ads.

For example, Facebook has emerged as a major source of campaign spending --the National Republican Congressional Committee reportedly increased its Facebook advertising by 1,500%, and Trump’s campaign “embraced Facebook as a key advertising channel in a way that no presidential campaign has before”—and almost 60 percent of Facebook users access the social network exclusively from the Facebook app. As the letter notes: 

“It would be absurd if a paid political Facebook ad were considered a ‘public communication’ when viewed on the Facebook website, but now when viewed through the Facebook app – where a majority of its users now access the social media platform,” the comments state.  

The definition matters because only “public communications”—TV and radio ads, mass mailers, paid internet ads, and any other form of ‘‘general public political advertising” —are subject to coordination rules  applicable to communication rules and disclaimer requirements.

Paid digital ads that are viewed on a mobile app, rather than viewed on a “web site,” would still constitute ‘‘general public political advertising” and should be covered under existing rules.

Political operatives have taken advantage of the FEC’s dysfunction to push aggressive legal theories exploiting any possible ambiguity in the law, so the FEC’s proposed clarification of its rules is a welcome development.

For example, during the 2016 election cycle, the pro-Clinton super PAC Correct the Record raised huge checks and spent at least $8 million in open coordination with the Clinton campaign. Coordination between candidates and super PACs is strictly limited under federal law, but Correct the Record claimed that its conduct was legal based on an extremely narrow reading of the “public communications” rule and other regulations.

This is a big deal, because although Clinton could only accept checks of up to $2,700 from individuals, Correct the Record could accept unlimited contributions from individuals, corporations and labor unions. By working directly with Correct the Record, Clinton could evade the contribution limits and benefit from million-dollar checks.

CLC filed a complaint against Correct the Record in October, but since the FEC is mired in an ideological standoff, it is unlikely to take action for quite some time.

The FEC correctly recognizes that both technology and political campaigning are evolving and is taking the right step in proposing rules that recognize those changes. 

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