The technology policy wizards at the Federal Election Commission rejected a request by Facebook Wednesday to allow more freedom for candidates and political parties to advertise on America’s most popular social networking site.
In April, Facebook formally asked the FEC if its ads for candidates and political parties qualified for a disclosure exemption in campaign finance law. Buttons and bumper stickers, for example, don’t require FEC disclaimers because the items are “small” and such disclosure would be an “impractical” burden to political speech.
Two hours of Wednesday’s FEC meeting was devoted to determining whether Facebook should be allowed to run tiny ads for candidates without lengthy disclaimers. The discussion revealed an absurd attempt by election law bureaucrats to dictate how companies and campaigns use technology to communicate with voters.
“The Internet is nothing like pens and buttons. It has a range of fabulous capabilities,” said Commissioner Ellen Weintraub. “My Facebook app on my phone is really smart… I will get a chime telling me that my daughter poked me.” [During one of Weintraub’s soliloquies on how Facebook should change its business model to appease FEC bureaucrats, I used Facebook’s iPhone application to add her as a “friend.” As of this writing, the request is still pending.]
Before Wednesday’s hearing, Republican commissioners circulated a draft that would have allowed Facebook, like Google, to leave the disclaimer off its ads. FEC Democrats favored a competing draft opinion holding that the “small items” and “impractability” exceptions did not apply to Facebook. Weintraub, the most vocal advocate for strict campaign finance regulation on the six-member FEC, introduced a third draft opinion minutes before the meeting that she thought was a “cool solution.”
Weintraub argued that Facebook programmers should rewrite the code for its advertising platform to comply with the FEC’s byzantine disclaimer and disclosure regulations meant for broadcast advertising. This position is baffling, considering that political advertising accounts for a sliver of Facebook’s advertising revenue and no evidence exists that a bulky disclaimer on Facebook’s tiny ads would provide voters with meaningful information or curb corruption.
Corey Owens, Facebook’s Associate Manager for Public Policy, said that Facebook couldn’t speak to how it could add new disclaimer features to accommodate the political advertising market because the 2012 campaign cycle is already well underway.
“In this particular case, we have an exceptionally limited amount of time working with a relatively small advertising market,” Owens said.
A Facebook spokesperson declined to break down the percentage of political advertising from the company’s overall ad revenue. Facebook released a diplomatic statement after the FEC vote expressing pleasure “that the FEC commissioners have agreed that people can continue to buy and run political ads on Facebook as they have been.”
Republican FEC commissioners mocked Weintraub’s idea to force Facebook to rewrite its advertising delivery system.
“We want to encourage the development of technology. That means the government is going to tell you how to run your business,” said FEC Commissioner Don McGahn. “Historically, the [regulations] have been flexible on disclaimers. People are smart enough to know what they’re looking at. We have to be able to trust people that they know they’re looking at a Facebook ad.”
Facebook seemed to have a winning argument, considering FEC precedent. In 2002, the agency issued an opinion to Target Wireless, holding that candidates and parties could send text messages without disclaimers, considering the constraints of SMS technology. In 2006, the FEC issued a rule governing political activity on the Internet. The agency decided to minimize regulations on Internet political speech, determining that the Internet is “a unique and evolving mode of mass communication and political speech that is distinct from other media in a manner that warrants a restrained regulatory approach.” In October 2010, responding to an advisory opinion request from Google, the FEC determined that “[i]ncluding the full name of the political committee” in a character-limited ad “could require more characters for the disclaimer than are allowed for the text ad itself,” as Facebook lawyer Marc Elias detailed in Facebook’s plea to the FEC for more ad freedom.
Elias, a longtime lawyer for Democratic candidates and groups, faced nothing but frustration at Wednesday’s meeting. He brought up the hypothetical of Joe Jones, an underfunded Democratic challenger with an initial $500 advertising budget. Jones cannot create a Facebook ad campaign that links to ActBlue, a fundraising group for Democrats, because the link does not land on a page containing a disclaimer that Jones’s campaign paid for the Facebook ad. Failing to apply the exemption to Facebook penalizes parties and candidates — especially grassroots challengers with small budgets — while leaving independent political groups such as American Crossroads and Priorities USA free to advertise on Facebook without disclaimers (as long as they avoid “expressly advocating” for or against a candidate), Elias argued.
“The only thing you’re doing is harming political committees and candidates,” Elias said. “In the here and now, what you have is a democratizing technology that small campaigns try to use to get their message out in an inexpensive fashion. The big, bad outside groups aren’t covered by this anyway.”
Elias pleaded with Weintraub and other FEC Democrats to allow the exemption so candidates could use Facebook ads to directly highlight newspaper endorsements and other Internet sites that do not contain explicit disclaimers, saving users from clicking through a series of links on candidates’ home pages. But Weintraub refused to budge.
“I know, that means it makes it less likely that people go to the page, but that’s what people do on the Internet,” she said. “They click on things.”
Weintraub, who admitted that she “hates Facebook ads,” also balked at creating an exception for Facebook because she worries that AOL and other online companies would seek to create more user-friendly ads without bulky disclaimers.
“We would be creating for the first time an exception on mass media. The Internet has a much huger potential to reach people… in a way that handing out pens is not going to get you,” Weintraub said.
FEC Democrats cited recent efforts by California’s aggressive campaign finance regulator, the Fair Political Practices Commission (FPPC), to dictate the terms of Facebook political ads. But, as Owens pointed out, the California regulations only apply to ballot initiatives and very specific independent expenditures by groups, not candidate or political party ads. Furthermore, the FPPC is considering revisiting the issue because ballot initiatives cannot take out a Facebook ad highlighting a newspaper endorsement (all ads must link to an official ballot initiative website with a disclaimer).
All six commissioners agreed that the complex issue called for a broader rulemaking to update the FEC’s regulations for online political speech, but the three Republicans and three Democrats could not come together on Facebook’s situation. After an hour-and-a-half of debate, FEC Chair Cynthia Bauerly called a recess to confer with her colleagues. Elias sought to delay a final decision until the next FEC meeting, banking on one of the FEC Democrats compromising their position.
“Hope springs eternal,” Elias said during the recess, before conferring with Facebook officials. Ultimately, though, Elias failed to convince FEC Democrats to adopt Facebook’s common-sense request. The FEC deadlocked on the advisory opinions, leaving Facebook to fight online ad freedom another day.
Jeff Patch is a writer and political consultant based in Alexandria, Va.