Cross-posted from HuffPost.
It’s not an exchange anyone could have imagined just a couple of years ago: a Republican senator and a Silicon Valley titan agreeing on the need for regulation.
Mark Zuckerberg is facing intense scrutiny over revelations that Donald Trump-linked data firm Cambridge Analytica had obtained data on 87 million Facebook users without their consent, and that Russians were able to use the social network to meddle in American elections. In a Senate hearing Tuesday, Sen. Lindsey Graham (R-S.C.) asked Zuckerberg, “Do you embrace regulation?” Zuckerberg replied, “The real question is … what is the right regulation, not whether there should be regulation.”
It’s difficult to disagree with Zuckerberg’s assessment, particularly when it comes to taking steps to protect the integrity of American elections. But what are the right rules of the road? How can we prevent future meddling by foreign powers while safeguarding the ability of Americans to engage in vigorous debate?
A good starting point would be regulations that restore the effectiveness of our decadeslong ban on foreign political spending. That ban has existed for more than 50 years, and was originally enacted as a national security measure to protect American policy from the influence of foreign powers. Lawmakers have long recognized that American popular sovereignty — the exercise of the American people’s power to decide the course their government takes — must be protected from foreign powers that might try to use political spending to further their interests at our expense.
Yet over the years, cracks have developed in the walls that we built to protect our political process. That’s partly due to regulators’ failure to keep up with the rapid development of the internet, which helped Russian entities secretly buy political ads in 2016. The radical changes to campaign finance law wrought by the Supreme Court’s 2010 decision in Citizens United created new chinks in the armor. As President Barack Obama noted in his State of the Union address that year, the decision opened “the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”
We still don’t know the full extent of Russia’s spending in the 2016 election. But we know inflammatory ads purchased by accounts connected to the Kremlin reached millions of users of Facebook, Twitter and Google. Meanwhile, special counsel Robert Mueller’s investigation into Russian interference in the presidential race seems to raise new questions every day about whether even more cash was funneled through so-called dark-money groups that can hide the identity of their donors, as well as other entities controlled by the Kremlin.
Zuckerberg and Facebook have announced plans that could help prevent illegal foreign political spending on their platform. Those include creating a political ad database and an address verification system, as well as requiring some disclosure of ad buyers. That mirrors a series of reforms we’ve laid out in a new report for New York University School of Law’s Brennan Center for Justice.
But there are holes in even these proposals. For instance, Facebook’s disclaimers won’t be sticky, meaning that when a paid post is shared by another user, they won’t show up. Moreover, once the spotlight moves on and the cameras are switched off, who’s to say Facebook won’t reverse course?
We need to update political spending laws for the internet with the framework we already use for television and radio ads. In broadcasting, every ad ends with a spoken and written disclaimer telling the viewer who paid to make and air it. Applying the same rules to the internet would mean requiring disclosure of the person or group that paid for any political ad, and explicitly banning foreign entities from purchasing ads that mention candidates before an election.
We should also require a public, searchable database of all online political ads on Facebook and other platforms. Online political ads purchased by Russians the run-up to the 2016 election were often polarizing and false. For instance, one ad from the “Being Patriotic” account referenced a Boston gunfight in which two police officers were seriously injured. The ad claimed the gunman was a “BLM movement activist” despite a total lack of evidence of any connection to Black Lives Matter or any other protest movement. These ads were targeted at specific Facebook users, and there was no opportunity for journalists to fact-check them, or for the public to hold the advertisers accountable for inflammatory or false rhetoric.
Finally, we should require those selling political ads on the internet to help enforce the ban on the foreign purchase of political ads themselves. Facebook, Twitter and Google have all recently announced efforts to confirm the identity of ad purchasers, though the exact procedures they are adopting are not entirely clear. Facebook has been perhaps the most forthcoming, announcing plans to require political advertisers to provide government-issued ID and receive an access code at a U.S. mailing address.
Many of these reforms are part of the long-stalled Honest Ads Act, a bill introduced by Sens. Amy Klobuchar (D-Minn.), John McCain (R-Ariz.) and Mark Warner (D-Va.), and now explicitly supported by Facebook and, as of Tuesday, Twitter. But even if it’s enacted, the bill will not by itself prevent Russia or other foreign powers from spending in our elections.
Indeed, the bigger dragon to slay is the threat of dark money: election spending by groups that do not have to disclose their donors. This includes groups with names familiar to most Americans, like the U.S. Chamber of Commerce and the lobbying arm of the National Rifle Association, as well as more innocuous-sounding groups like Americans for Prosperity and Majority Forward. Did the NRA or other groups that keep their donors secret make election expenditures with funds from Russia or other foreign powers? We cannot know ― and will not know in future elections ― as long as dark-money groups exist.
Here again, there’s a potential fix. The DISCLOSE Act, versions of which have been introduced in Congress since 2010, would require any group that spends more than a trivial amount on political advertisements to disclose its major donors. Groups like the NRA that also engage in nonelectoral activity would have the option of creating a separate political-expenditures account. These groups would only be able to spend contributions that were explicitly made to this account, and donors would understand that gifts over a certain amount to that account could not be anonymous.
Lastly, with the growth of corporate spending in American elections, we must ensure that domestic corporations making such expenditures are not financed by a foreign corporation or individual. Cambridge Analytica has recently faced questions about whether its work on the 2016 campaign was directed by its U.S. employees or by its British parent firm, SCL Group, which would have violated the ban on foreign activity in American elections.
And we have seen that individuals and corporations ― like Russia’s Internet Research Agency, which was organized as a business corporation ― can act as proxies for a foreign state. Congress should clarify that the ban on political spending by foreign nationals extends to companies that are owned or controlled by foreign nationals.
Zuckerberg’s testimony this week demonstrates that America’s elections remain vulnerable to foreign manipulation. Facebook’s new promises to root out foreign spending on political and issue ads are welcome.
But even if those promises translate into effective action ― and that is far from assured ― we will still need comprehensive reform at the federal level. Our recommendations might not wholly prevent foreign meddling in the future, but they would restore a long-standing defense against foreign interference, a ban that has served us well and could again.
Lawrence Norden is deputy director of the democracy program at The Brennan Center, and Ian Vandewalker is senior counsel in the same program. They are the authors of the new Brennan Center report ″Getting Foreign Funds out of America’s Elections.”