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Analysis

As Calls for Online Ads Regulation Mount, Maryland Takes the Lead

While Congress is grabbing headlines for the Zuckerberg hearings, states have been quietly leading the way in modernizing our election laws for the digital age.

  • Natalie Giotta
April 17, 2018

We know that inter­net advert­ising is a prob­lem for federal elec­tions: Look no further than Mark Zuck­er­ber­g’s testi­mony to Congress last week. Yet while Congress is grabbing head­lines for the polit­ical theater of mara­thon hear­ings with a celebrity witness, it has done noth­ing to address the prob­lem through lawmak­ing. The states, on the other hand, have been quietly lead­ing the way in modern­iz­ing our elec­tion advert­ising laws for the digital age.

In a huge victory for voters, Mary­land recently passed a bill to align online elec­tion advert­ising require­ments with similar, decades-old require­ments for broad­cast ads. The General Assembly voted to pass several innov­at­ive disclos­ure require­ments. Among the most import­ant of these is the require­ment that groups disclose their purchases of online ads endors­ing a partic­u­lar candid­ate or a posi­tion on a ballot ques­tion. This closes a loop­hole that third-party organ­iz­a­tions – includ­ing “dark money” groups and Russia-linked oper­at­ives – have used to get around disclos­ing the true amounts they’re spend­ing in Amer­ican elec­tions.

The bill also mandates an online one-stop shop for Marylanders wish­ing to know who is spend­ing in their elec­tions. It requires that inform­a­tion about the elec­tion advert­ising expendit­ures – such as who is spend­ing, and the amount they spent for online ads – be avail­able on the inter­net in a search­able format for public use.

What’s more, the new require­ments will capture ads that are microtar­geted and there­fore seen by very few users: Any commu­nic­a­tion that reaches 500 or more people in the state will be subject to disclos­ure. While lawmakers on Capitol Hill are still scratch­ing their heads about Face­book’s busi­ness model , Mary­land under­stands that effect­ive advert­ising can target very few users. This is a huge step forward in modern­iz­ing our elec­tion laws for the web-based age.

The Bren­nan Center test­i­fied in support of this new law, and the General Assembly accep­ted several of our recom­mend­a­tions for strength­en­ing the regu­la­tion of online ads. Unequi­voc­ally, the Governor should sign the bill.

Mary­land isn’t the only the state to step in where Congress hasn’t stepped up. Cali­for­nia, Wash­ing­ton, and New York all have laws on the books that require disclos­ure of online polit­ical ad spend­ing. And a bill is currently work­ing its way through the Vermont legis­lature.

Of course, there is still work to be done. Congress has yet to pass the Honest Ads Act, a bill that would protect elec­tions and voters from the influ­ence of dark money on the web. The gaping hole in our federal elec­tion law is hard to ignore. There’s hope on the hori­zon in Congress and at the FEC, but there’s plenty to be done in the mean­time.

More states should work to turn the tide towards modern­iz­ing our elec­tion spend­ing laws. They can now look to Mary­land and other innov­at­ors, as well as the latest think­ing from the Bren­nan Center, as they begin to do so. The crucial infra­struc­ture, think­ing, and data to prove a good policy are all there. At every level of govern­ment, we have the tools to ensure the integ­rity of our elec­tions. All we need now is for our lead­ers to take action.