June 28, 2018: This story has been corrected.
Meanwhile, the federal government agency tasked with protecting U.S. elections from foreign meddling struggled on Wednesday to even agree on narrow rules governing the size and format of certain disclaimers on digital political ads.
It may never agree: During a daylong public hearing in Washington, D.C., the Federal Election Commission’s four remaining commissioners — two seats are vacant because President Donald Trump hasn’t appointed anyone to fill them — couldn’t find consensus on how to best drag federal political ad regulations into an internet age that commenced last century.
“I don’t think we’ve gotten very far,” FEC Chairwoman Caroline Hunter, a Republican, said two hours into the hearing, which featured testimony from 12 representatives of think tanks, activist groups and legal organizations.
“Keep hope alive, madam chair,” Democratic Vice Chairwoman Ellen Weintraub said with a sigh.
Several people who testified at the FEC hearing implored agency commissioners to act.
“The elephant in the room today is the mechanics of online advertising have become notoriously opaque, while our transparency rules, certainly in respect to political advertising, have not evolved,” said Joseph Jerome, policy counsel of advocacy group Center for Democracy & Technology. “New industry-led self regulatory efforts may solve this problem. It also has the potential to make the situation worse if the FEC does not engage in meaningful oversight.”
At the most basic level, FEC commissioners are trying to decide how online ads should display a disclaimer that generically reads: “Paid for by Committee X. Not authorized by any candidate of candidate’s committee.”
This disclaimer is required — per a 2002 federal law — for ads that expressly support or denounce a candidate or solicits contributions. Exemptions for small or impractical media exist, however, and include bumper stickers, campaign buttons — even skywriting messages.
As digital advertising began to balloon, Facebook asked the FEC for an exemption from the requirements. But commissioners deadlocked on a decision in 2011 and provided no formal guidance.
Late last year, Take Back Action Fund, a nonprofit, asked the FEC for guidance on how best to include disclaimers on political ads it runs on Facebook.
The FEC did agree in an advisory opinion that the nonprofit must include a clear sponsorship disclaimer on any Facebook ads. But the FEC didn’t provide specific direction on what that disclaimer should look like.