Skip Navigation
Testimony

Oversight of Federal Political Advertisement Laws and Regulations

The Brennan Center submitted testimony to the U.S. House Subcommittee on Information Technology recommending immediate actions that Congress can take to strengthen federal political advertisement laws and regulations in order to minimize the ability of foreign powers to interfere in American elections.

Published: October 24, 2017

Commit­tee on House Over­sight and Govern­ment Reform,

Subcom­mit­tee on Inform­a­tion Tech­no­logy

United States House of Repres­ent­at­ives

 

State­ment of Ian Vandewalker

Senior Coun­sel, Demo­cracy Program,

Bren­nan Center for Justice at NYU School of Law

 

Octo­ber 24, 2017

 

“Over­sight of Federal Polit­ical Advert­ise­ment Laws and Regu­la­tions”

On behalf of the Bren­nan Center for Justice, I thank the Subcom­mit­tee on Inform­a­tion Tech­no­logy for hold­ing this hear­ing. We appre­ci­ate the oppor­tun­ity to share with you our stud­ies and recom­mend­a­tions concern­ing federal polit­ical advert­ise­ment laws and regu­la­tions, partic­u­larly as they relate to foreign spend­ing and the abil­ity of foreign powers to inter­fere in Amer­ican elec­tions. The Bren­nan Center for Justice is a nonpar­tisan think tank and advocacy organ­iz­a­tion that focuses on demo­cracy and justice. We work to ensure that our elec­tions are conduc­ted in a way that ensures all Amer­ic­ans can parti­cip­ate in a self-govern­ing demo­cracy. The Bren­nan Center has stud­ied campaign finance issues for 20 years, work­ing to develop effect­ive and consti­tu­tion­ally sound policies and advoc­at­ing for them in the courts, legis­latures, and admin­is­trat­ive bodies across the nation.

Polit­ical advert­ising is exper­i­en­cing a shift toward spend­ing on the inter­net,[1] which makes it easy and inex­pens­ive to dissem­in­ate messages widely or with pinpoint audi­ence target­ing. Yet our laws have not been updated for this new era, leav­ing much polit­ical spend­ing on the inter­net unreg­u­lated. Invest­ig­a­tions into the 2016 elec­tion have revealed a wide­spread, multi­pronged effort by the Russian govern­ment to alter the course of public debate by inject­ing propa­ganda and divis­ive messages into the Amer­ican polit­ical discus­sion. Russian oper­at­ives bought thou­sands of ads discuss­ing polit­ical issues here, reportedly includ­ing messages advoc­at­ing the elec­tion of candid­ates. And they did so while disguising their iden­tity with fake profiles designed to look like they were controlled by Amer­ic­ans.

The poten­tial for online ads to enable agents of a foreign govern­ment to pose as Amer­ic­ans while spread­ing propa­ganda creates risks for our demo­cracy. Amer­ican audi­ences can be misled about how popu­lar an idea is with their compat­ri­ots and make decisions about which candid­ate to support, whether to vote, or even which facts to believe, all under false premises.

The intel­li­gence community is confid­ent that Russia will attempt to meddle in our elec­tions again.[2] And of course, the threat is not limited to Russia. Moscow’s efforts in 2016 may serve as a blue­print, enabling an unknown number of copycats inter­ested in meddling in Amer­ican affairs, whether it’s China, Iran, North Korea, or ISIS.  As former Home­land Secur­ity Secret­ary Jeh John­son put it, “the Russi­ans will be back, and possibly other state actors, and possibly other bad actors.”[3]

There are actions that Congress can imme­di­ately take to limit the oppor­tun­it­ies for foreign govern­ments to spend on elec­tion ads, and to ensure that Amer­ic­ans have the inform­a­tion they need to make informed decisions about what to believe and how to vote.[4] We recom­mend legis­la­tion to accom­plish the follow­ing:

1. Require the same disclos­ure and disclaim­ers for online ads that the law currently requires for other mass media, and require that inform­a­tion about polit­ical ads online is preserved in a data­base avail­able to the public.

2. Elim­in­ate “dark money” spend­ing by organ­iz­a­tions that do not disclose their donors, which can be used to hide foreign expendit­ures on elec­tions.

3. Expand the ban on elec­tion spend­ing by foreign nation­als to include domestic corpor­a­tions with substan­tial foreign owner­ship or control.

4. Reform the Federal Elec­tion Commis­sion to reduce the like­li­hood of dead­lock by provid­ing for an odd number of commis­sion­ers, at least one of whom is nonpar­tisan. 

I.  The Power of the Inter­net and Russi­a’s Inter­fer­ence

The inter­net has rapidly become a key focus of polit­ical advert­ising as it has become a bigger part of modern life. The $1.4 billion spent online in the 2016 elec­tion was almost eight times higher than in 2012.[5] Yet the inter­net poses unique chal­lenges for open polit­ical discourse. Online, messages are cheap to produce and dissem­in­ate instantly to vast poten­tial audi­ences across great distances without regard for polit­ical bound­ar­ies.[6] Anonym­ity is easy online, allow­ing decep­tion about who is paying for ads.

Moreover, many Amer­ic­ans have sorted them­selves into polit­ical echo cham­bers, receiv­ing their news online only from sources who share the same partisan alle­gi­ance. This, along with soph­ist­ic­ated ad target­ing tools, makes it easier for polit­ical oper­at­ives to direct messages inten­ded to foment discord to suscept­ible audi­ences, for example by attack­ing a candid­ate from the left in ads targeted to progress­ive users and from the right in messages aimed at conser­vat­ives.[7]

Micro-targeted advert­ising online has given rise to the “dark ad,” which is seen only by a narrowly targeted audi­ence, threat­en­ing to remove much of the polit­ical debate around elec­tions from public view. Contrast dark ads with tele­vi­sion commer­cials, which reach wide audi­ences and are subject to trans­par­ency rules, allow­ing journ­al­ists to fact-check claims and the wider public to hold speak­ers account­able for false or inflam­mat­ory rhet­oric.[8]

      A.  What Happened in 2016

Russi­a’s attempts to influ­ence the 2016 elec­tion took advant­age of all these features of online media. They bought ads and promoted content through fake accounts pretend­ing to be Amer­ic­ans. They craf­ted differ­ent messages for differ­ent audi­ences and used plat­forms’ soph­ist­ic­ated audi­ence target­ing tools to increase the chances that propa­ganda would reach recept­ive audi­ences more likely to be swayed and to share posts.[9] So far, internal invest­ig­a­tions by Face­book, Twit­ter, and Google have found Russian activ­ity on the most popu­lar plat­form­s—and no doubt the full story has yet to be told.[10]

The Krem­lin’s messages included attacks on and praise for specific candid­ates in the pres­id­en­tial elec­tion, although many seemed designed mostly to harm the polit­ical estab­lish­ment, which Russian agents attacked from both left and right.[11] Most of the ads Face­book discovered to have origin­ated from Russian oper­at­ives “appeared to focus on ampli­fy­ing divis­ive social and polit­ical messages across the ideo­lo­gical spec­trum—touch­ing on topics from LGBT matters to race issues to immig­ra­tion to gun rights.”[12]

It appears that Russia-linked accounts bought polit­ical advert­ising on every major plat­form. Face­book found ad buys total­ing $150,000 linked to fake accounts suspec­ted to be controlled by Russian oper­at­ives, encom­passing some 3,300 spots, although most of the times the ads were displayed occurred after Elec­tion Day.[13] Twit­ter determ­ined that accounts controlled by the Krem­lin-linked network RT spent $274,100 on ads in 2016.[14] Google has yet to announce a price tag for the ads it found on YouTube, Gmail, and other services.

This may seem like a drop in the bucket of sky-high pres­id­en­tial elec­tion spend­ing, but Face­book’s power­ful ad target­ing tools and the possib­il­ity for messages to be shared organ­ic­ally by user­s—or even go viral—can vastly expand ads’ reach.[15] Face­book estim­ated that its Russia-linked ads were seen by 10 million people, and the ads were buttressed by related content organ­ic­ally shared by the same pages that may have reached tens or hundreds of millions more.[16] Moreover, it’s possible that the Russian ad buys repor­ted so far are merely the tip of the iceber­g—in­vest­ig­a­tions are ongo­ing.[17]

Some of these ad buys were likely illegal, since they recom­men­ded voting for pres­id­en­tial candid­ates, and foreign nation­als are banned from enga­ging in “express advocacy” that tells the public how to vote.[18] But, based on what Face­book has repor­ted, many of the ads stopped short of express advocacy and so may not have run afoul of current law.[19]

     B. The Post-2016 Response of Social Media Compan­ies

In recent months, in response to pres­sure from Congress and the public, social media plat­forms like Face­book and Twit­ter have conduc­ted internal invest­ig­a­tions and prom­ised changes to blunt the abil­ity of foreign powers to spend in Amer­ican elec­tions.  For instance, Face­book is build­ing an “ad trans­par­ency” tool that will require addi­tional human review and approval of ads that are targeted with refer­ence to “polit­ics, reli­gion, ethni­city or social issues.”[20] In addi­tion, when users see an ad run by a page, they will also be able to see other ads run by that page. Ads have to meet certain authen­ti­city require­ments (depri­or­it­iz­ing “click­bait” and ads that mask the true origins of the link) and industry best prac­tices.[21]

Mean­while, Twit­ter released a state­ment in Septem­ber on their efforts to strengthen the site against “bots and networks of manip­u­la­tion.”[22] First, they collab­or­ated with Face­book to identify corres­pond­ing Twit­ter accounts from the list of 470 accounts Face­book shared as spam and suspend­ing them. They also tracked spend­ing by the Russian state-controlled news network RT on ads target­ing U.S. audi­ences. They removed tweets that were deemed attempts to suppress the vote.[23]

Never­the­less, almost a year after the elec­tion, there is much we do not know about the Russian ads, includ­ing what all of them said, who bought them, how much they cost, and how they were targeted. And plat­forms’ volun­tary efforts are not enough. Plat­forms are likely to adopt vary­ing policies, with some worse than others. Plat­forms may not put enough effort into imple­ment­a­tion or enforce­ment, or may apply rules incon­sist­ently across users. And volun­tary efforts can be aban­doned as soon as a scan­dal blows over. Instead, Congress should act to craft effect­ive policies that will be enforced across the board.

II.   Imme­di­ate Steps Congress Should Take

Congress can strengthen Amer­ica’s defenses against foreign govern­ments’ covert use of massive social media campaigns to try to influ­ence our polit­ics. The threat is multi­fa­ceted and constantly evolving, so our solu­tions must be the same. Some key pieces of the puzzle are already on the table in exist­ing legis­la­tion. To be sure, this prob­lem demands a whole-of-soci­ety approach where govern­ment and private actors continu­ally monitor the threat and craft effect­ive solu­tions, but crucial safe­guards are avail­able now. Below we describe four actions Congress can take right away.

       A. Update Campaign Finance Law to Cover Paid Inter­net Ads

It’s clear that the trend toward more polit­ical activ­ity being conduc­ted on social medi­a—whether by foreign powers or the campaigns them­selves—will continue.[24] But our campaign finance regime got its last signi­fic­ant update in 2002, an etern­ity ago in the online world. Much of the activ­ity inten­ded to influ­ence elec­tions on the inter­net today is untouched by key regu­la­tions. These include the require­ment to report spend­ing on mass media ads that mention candid­ates in the period before an elec­tion, the ban on foreign nation­als buying such ads, and the require­ment that broad­casters retain public files of polit­ical ads.

As described below, Russian oper­at­ives seek­ing to influ­ence last year’s elec­tion spent money in the largely unreg­u­lated world of online polit­ical ads. To address this prob­lem, the Bren­nan Center recom­mends increas­ing trans­par­ency and strength­en­ing the ban on foreign spend­ing. The most signi­fic­ant mech­an­isms to accom­plish this are discussed below, in turn: (1) extend­ing the defin­i­tion of “elec­tion­eer­ing commu­nic­a­tions” to paid inter­net ads, (2) requir­ing a public file of polit­ical ads online, and (3) requir­ing online plat­forms to make reas­on­able efforts to prevent foreign nation­als from buying polit­ical ads. Together, these efforts would make more of what Russia did in 2016 illegal. They would also increase public disclos­ure, giving the public and law enforce­ment more inform­a­tion to catch illegal foreign spend­ing.

             1.  Include Paid Inter­net Ads in the Regu­la­tion of Elec­tion­eer­ing Commu­nic­a­tions

Congress should extend the rule to online ads by includ­ing paid ads on the inter­net in the defin­i­tion of “elec­tion­eer­ing commu­nic­a­tions.” During the 1990s, “sham issue ads” that attack or praise a candid­ate on some sali­ent issue without expli­citly mention­ing the elec­tion became an increas­ingly popu­lar way of attempt­ing to influ­ence elec­tions while avoid­ing the regu­lat­ory require­ments imposed on express advocacy. The 2002 McCain-Fein­gold law respon­ded by creat­ing the category of “elec­tion­eer­ing commu­nic­a­tions,” requir­ing disclos­ure of expendit­ures above $10,000 on ads that mention candid­ates in certain mass media like TV and radio within a specified window, such as 60 days before an elec­tion.[25] The prob­lem today is that the inter­net was not one of the media included.

Extend­ing the rule to the inter­net would require expendit­ures on online ads mention­ing candid­ates before an elec­tion to be repor­ted, along with the name of the spender. Elec­tion­eer­ing commu­nic­a­tions rules require report­ing both the cost of ad place­ment and the cost of produc­tion when they together exceed $10,000. That could ensure trans­par­ency about the sources of spend­ing on social media content where a signi­fic­ant amount was spent on produc­tion or target­ing, even if the result­ing message was placed for a very small fee. It would not stop any messages from being shared, only require finan­cial disclos­ure. And because of the spend­ing threshold, it would not affect the typical social media user at all.

Expand­ing the elec­tion­eer­ing commu­nic­a­tions rule to paid inter­net ads would clarify that foreign nation­als are banned from buying such ads. Currently, the law prohib­its foreign nation­als from spend­ing money “for the purpose of influ­en­cing any elec­tion for Federal office.”[26] That ban has been inter­preted to prohibit only express advocacy or its func­tional equi­val­ent, leav­ing issue advocacy out.[27] A bright-line rule like the elec­tion­eer­ing commu­nic­a­tions defin­i­tion would clarify and broaden the foreign national ban.

Of course, agents of foreign govern­ments will­ing to create fake social media profiles cannot be coun­ted to refrain from spend­ing merely because the law is clearer, or the ban on foreign spend­ing expan­ded.  Fortu­nately, an expan­sion of the elec­tion­eer­ing commu­nic­a­tions defin­i­tion would also make it easier to spot and prevent such spend­ing. Elec­tion­eer­ing commu­nic­a­tions reports require identi­fy­ing inform­a­tion about the spender, like name and address, and they are made avail­able to the public. Even if agents of foreign govern­ments provide false inform­a­tion on an FEC filing, the public record would be valu­able, and would provide the Amer­ican govern­ment, media and public with an oppor­tun­ity to invest­ig­ate suspi­cious spend­ing. In combin­a­tion with other meas­ures noted below, this could be an import­ant coun­ter­meas­ure against illegal foreign spend­ing. 

A bill that would accom­plish much of what is recom­men­ded above has been intro­duced by a bipar­tisan group of Senat­ors: the Honest Ads Act, sponsored by Sen. Amy Klobuchar (D-Minn.), Sen. John McCain (R-Ariz.), and Sen. Mark Warner (D-Va.).[28] The House compan­ion, H.R. 4077, was intro­duced by Rep. Derek Kilmer (D-Wash.). The bill would extend the defin­i­tion of elec­tion­eer­ing commu­nic­a­tions to cover paid inter­net and digital ads.[29]

              2. Require a Public File of Polit­ical Ads Online

Congress should also require more trans­par­ency about polit­ical ad buys online, beyond disclos­ing who paid for elec­tion­eer­ing commu­nic­a­tions. To that end, as new media expert Daniel Kreiss of the U.N.C. School of Media and Journ­al­ism has proposed, online plat­forms should be required to main­tain repos­it­or­ies of polit­ical ads that include the content of the ad as well as inform­a­tion about how it was targeted and who paid for it.[30]

This would address the prob­lem of “dark ads” in polit­ical advert­ising. It would give the public the abil­ity to hold politi­cians and the interests active in elec­tions account­able if they say differ­ent things to differ­ent groups of voters, or spread inflam­mat­ory rhet­oric or false­hoods.[31] And, in combin­a­tion with elec­tion­eer­ing commu­nic­a­tions disclos­ures, could provide inform­a­tion to regu­lat­ors or law enforce­ment seek­ing out covert foreign spend­ing.

The Honest Ads Act, mentioned above, would require digital plat­forms to main­tain public files of ad buys that discuss elec­tions or legis­lat­ive issues. The provi­sion adopts the defin­i­tion of polit­ical ads currently used for tele­vi­sion broad­casters’ oblig­a­tion to main­tain public files. The data­base created by the bill would publish the content of the ad, the audi­ence targeted, the timing, and payment inform­a­tion.

Ad place­ments online can be very inex­pens­ive. Face­book repor­ted that half of the Russian ads it found cost less than $3. To account for this, the criteria for includ­ing an ad buy in the public file must have a very low spend­ing threshold, perhaps even requir­ing the inclu­sion of any purchase, no matter how low the price.

             3. Require Plat­forms to Work to Stop Foreign Polit­ical Ad Buys

Compan­ies that sell online polit­ical ads have a respons­ib­il­ity to try to keep foreign powers from using their services to inter­fere in Amer­ican elec­tions. Congress should require compan­ies to make reas­on­able efforts to avoid selling polit­ical ads to foreign nation­als. The Honest Ads Act includes a provi­sion that would do this as well.

In their retro­spect­ive invest­ig­a­tions of the 2016 elec­tion, Face­book, Twit­ter, and Google have shown they have the abil­ity to find foreign govern­ment activ­ity. One key piece of the puzzle, no doubt, is tracing finan­cial trans­ac­tions. For example, compan­ies can use credit card veri­fic­a­tion proto­cols to exam­ine whether money origin­ates in the U.S.[32]

Despite the avail­ab­il­ity of clues, the plat­forms were appar­ently suffi­ciently caught off guard by Russi­a’s unpre­ced­en­ted bold­ness that they didn’t conduct system­atic searches for covert foreign activ­ity before the elec­tion. A prospect­ive require­ment, espe­cially in combin­a­tion with the added trans­par­ency required by the provi­sions recom­men­ded above, would help prevent activ­ity like Russi­a’s 2016 elec­tion meddling.  

        B. Elim­in­ate Dark Money

Unfor­tu­nately, the lack of regu­la­tion on the inter­net isn’t the only place our campaign finance regime is vulner­able to foreign inter­fer­ence. Holes in disclos­ure rules allow “dark money” organ­iz­a­tions to spend on polit­ics without reveal­ing their donors, poten­tially hiding foreign sources of funds. In order to close the holes, Congress should require any organ­iz­a­tion that spends on polit­ics disclose its donors, as explained below.

In recent years, Congress and the FEC have failed to update disclos­ure laws in response to Supreme Court decisions that expan­ded the oppor­tun­it­ies for groups to spend on elec­tions. This has given the green light to shad­owy nonprofit organ­iz­a­tions to spend as much as they want on polit­ics without comply­ing with trans­par­ency and source limit­a­tions imposed on polit­ical commit­tees.[33] Secret spend­ing has exploded, with more than $900 million in dark money spent on the last five federal elec­tions, highly concen­trated in compet­it­ive elec­tions with the chance of affect­ing party control of a cham­ber of Congress or the pres­id­ency.[34] Secret spend­ing has also increased in recent state elec­tions, where a single big spender may be able to achieve espe­cially great influ­ence due to lower over­all elec­tion costs.[35] It is unknown how much dark money derives from foreign sources.

Dark money is possible because, under current law, disclos­ure require­ments are pegged to the form an organ­iz­a­tion takes: if a group calls itself a polit­ical commit­tee, it has to report the iden­tity of all donors of more than $200. Groups that are organ­ized as nonprofits under the tax code, however, are not required to report their donors, even when they engage in substan­tial polit­ical spend­ing. These organ­iz­a­tions can be formed with little more than a post office box and a mean­ing­less name like “Amer­ic­ans for Reform.” Donors can give these dark money groups unlim­ited amounts out of public view. Then the group can give to polit­ical commit­tees, or it can pay directly for ads, polling, voter mobil­iz­a­tion activ­it­ies, or other polit­ical expendit­ures.

Fortu­nately, solu­tions are on the table. The DISCLOSE Act, versions of which have been intro­duced in Congress since 2010, would elim­in­ate dark money as we know it.[36] At its core, the legis­la­tion would require any group that spent above a threshold amount on elec­tions to disclose its major donors of $10,000 or more. This would fix the prob­lem that the law currently allows groups to choose to register as nonprofits rather than polit­ical commit­tees in order to hide their donors. Under the DISCLOSE Act, the way a group organ­izes itself under the tax code is irrel­ev­ant; rather, it is the act of enga­ging in polit­ical spend­ing that trig­gers disclos­ure require­ments.

In addi­tion, the bill would crack down on the use of inter­me­di­ary organ­iz­a­tions to hide fund­ing sources. Current law allows donors to hide their iden­tity by funnel­ing money through a secret­ive organ­iz­a­tion before it ends up in the account of the group that actu­ally spends on polit­ics.

The DISCLOSE Act addresses this prob­lem by provid­ing that certain trans­fers of funds to polit­ical spend­ing groups trig­ger donor disclos­ure. If one group gives funds to another with reason to know they will be spent on elec­tions, the donor group is required to reveal the major sources of its fund­ing.

       C. Ensure Corpor­ate Spend­ing Is Funded Domest­ic­ally

Another blind spot in campaign finance results from corpor­a­tions’ abil­ity to spend in elec­tions, since corpor­ate assets can include vast amounts of money origin­at­ing in foreign coun­tries or controlled by foreign nation­als.[37] To address this prob­lem, Congress should expand the ban on foreign elec­tion spend­ing to domestic corpor­a­tions substan­tially owned or controlled by foreign nation­als.

Although corpor­a­tions currently can’t give directly to candid­ates or parties, thanks to Citizens United and other court decisions, they can give to super PACs and make their own inde­pend­ent expendit­ures.[38] Under the federal foreign money ban, foreign corpor­a­tions that are organ­ized or based in other coun­tries are banned from spend­ing money in Amer­ican elec­tions, includ­ing by giving to super PACs. Yet current law allows foreign-owned compan­ies incor­por­ated in the United States, even wholly-owned subsi­di­ar­ies, to make polit­ical expendit­ures as long as the money derives from busi­ness in the U.S. and the spend­ing decision is not made by a foreign national.[39]

And corpor­a­tions may be acting on behalf of foreign govern­ments. Russia is known to use non-state prox­ies, as with the Krem­lin’s use of the Inter­net Research Agency to conduct much of its campaign to influ­ence the elec­tion through social media.[40]

In order to address the possib­il­ity that corpor­ate contri­bu­tions may be used as an avenue for foreign influ­ence, Congress should develop policies to restrict the ways that corpor­a­tions with foreign owner­ship or control can spend on Amer­ican elec­tions.

Federal Elec­tion Commis­sioner Ellen Wein­traub has proposed requir­ing corpor­a­tions that spend on polit­ics to certify that their share of foreign owner­ship is below some threshold percent­age.[41] The FEC dead­locked on the proposal, so it was not developed further.[42] Several exist­ing state laws prohibit either direct contri­bu­tions or inde­pend­ent expendit­ures by foreign-controlled corpor­a­tions. Factors that can trig­ger a desig­na­tion that a firm is foreign-controlled include having a greater than 50 percent owner­ship interest held by foreign nation­als.[43]

Bills intro­duced in Congress this year are also designed to address this issue. Rep. Jamie Raskin (D-Md.) intro­duced H.R. 1615, the Get Foreign Money Out of U.S. Elec­tions Act this year, which would extend the ban on spend­ing on elec­tions by foreign nation­als to domestic corpor­a­tions that are owned, controlled, or influ­enced by foreign­ers.[44] Similar provi­sions can be found in the Senate version of the DISCLOSE Act of 2017, S. 1585, and the We the People Demo­cracy Reform Act of 2017, H.R.3848.

         D. Reform the Federal Elec­tion Commis­sion

The FEC has contrib­uted to the secret spend­ing prob­lem by fail­ing to vigor­ously enforce trans­par­ency rules and the foreign spend­ing ban. Congress should make the agency more effect­ive by reform­ing its struc­ture, as discussed below, includ­ing provid­ing for an odd number of commis­sion­ers and a nonpar­tisan appoint­ment process for at least one commis­sioner.

FEC disclos­ure require­ments apply to groups that are organ­ized as polit­ical commit­tees, but as noted above, some nonprofits refuse to register as polit­ical commit­tees despite appar­ently exist­ing solely to engage in polit­ical activ­it­ies. In recent elec­tions, the FEC has not done enough to police the border, fail­ing to pursue invest­ig­a­tions into several groups where there are strong indic­a­tions that the group has a polit­ical purpose.[45]

In response to revel­a­tions about Russian oper­at­ives buying ads on social media, one member of the FEC, Ellen Wein­traub, has called for revis­it­ing the agency’s regime govern­ing elec­tion activ­ity on the inter­net.[46] It has been more than 10 years since the FEC fully grappled with the regu­la­tion of inter­net spend­ing. The commis­sion has reopened a rule­mak­ing concern­ing the scope of rules for disclaim­ers about who’s paying for online elec­tion ads. But the recent history of dead­locks and lax enforce­ment at the FEC leaves little cause for optim­ism that the agency is up to the task of address­ing foreign influ­ence.[47]

And as noted, the FEC declined to strengthen the foreign national ban as needed to cover foreign-owned firms after Citizens United freed corpor­a­tions to spend on polit­ics.[48]

The FEC’s prob­lems are struc­tural. The agency has an even number of commis­sion­ers, no more than three of whom may be from the same party.[49] Any signi­fic­ant action requires a major­ity. This leads to partisan dead­locks. Declin­ing FEC enforce­ment in recent years has coin­cided with lock­step voting by a bloc of Repub­lican commis­sion­ers ideo­lo­gic­ally opposed to aggress­ive enforce­ment or stronger rules. Although the commis­sion­ers are appoin­ted by the pres­id­ent, pres­id­ents tradi­tion­ally defer to party lead­ers in Congress, allow­ing partisan battle lines to infect the agency’s decision making.

Reform­ing the agency to break partisan dead­lock could greatly bene­fit trans­par­ency regard­ing money in polit­ics.[50] Even under the current regime, the pres­id­ent can make appoint­ments in a nonpar­tisan fash­ion, basing decisions on expert­ise or lead­er­ship rather than party loyalty. But struc­tural reforms are warran­ted.[51] Most import­ant, Congress could make the number of commis­sion­ers odd and require at least one member to be nonpar­tisan. There could also be ways to strengthen enforce­ment, such as empower­ing the Commis­sion’s Office of General Coun­sel or another desig­nated nonpar­tisan enforce­ment offi­cial within the agency to conduct invest­ig­a­tions, subject to over­ride by the commis­sion.

* * *

To be sure, the possib­il­it­ies for foreign govern­ments meddling in our elec­tions in the future go beyond the finan­cing of polit­ical advert­ise­ments. Reports of Russi­a’s activ­it­ies last year include unpaid posts on social media and the use of auto­mated accounts, or “bots,” to amplify messages. There are likely bene­fits of increas­ing trans­par­ency on social media to make it harder for foreign govern­ments to engage in coordin­ated, covert attempts to sway Amer­ican elec­tions, and there may be steps for the social media compan­ies, the public, and even Congress to take to improve trans­par­ency.

Regard­less, it is clear that there are essen­tial meas­ures, recom­men­ded here, that Congress can and should enact now in order to keep foreign powers from secretly spend­ing as much as they want on polit­ical ads in the next elec­tion.



[1] Sean J. Miller, “Digital Ad Spend­ing Tops Estim­ates,” Campaigns & Elec­tions, Janu­ary 4, 2017, https://www.campaignsan­delec­tions.com/campaign-insider/digital-ad-spend­ing-tops-estim­ates (noting $1.4 billion in digital ad spend­ing in the 2016 elec­tion, which signi­fies a shift toward online spend­ing).

[2] Office of the Director of National Intel­li­gence (ODNI), “Assess­ing Russian Activ­it­ies and Inten­tions in Recent US Elec­tions,” Intel­li­gence Community Assess­ment ICA 2017–01D (2017), https://www.dni.gov/files/docu­ments/ICA_2017_01.pdf.

[3] Andrew Rafferty, “Former DHS Chief Warns Russi­ans Will Continue to Target U.S. Elec­tions,” NBC News, June 21, 2017, https://www.nbcnews.com/polit­ics/polit­ics-news/former-dhs-chief-warns-russi­ans-will-continue-target-u-s-n775116.

[4] Know­ing who is support­ing a candid­ate gives voters inform­a­tion about what the candid­ate stands for. Buckley v. Valeo, 424 U.S. 1, 66–68 (1976). And disclos­ure informs the public’s decisions about how much trust to place in a message. Citizens United v. FEC, 558 U.S. 310, 371 (2010).

[5] Sean J. Miller, “Digital Ad Spend­ing Tops Estim­ates,” Campaigns & Elec­tions, Janu­ary 4, 2017, https://www.campaignsan­delec­tions.com/campaign-insider/digital-ad-spend­ing-tops-estim­ates.

[6] See Nath­aniel Persily, “Can Demo­cracy Survive the Inter­net?” Journal of Demo­cracy 28 (2017): 72.

[7] Rand Waltz­man, The Weapon­iz­a­tion of Inform­a­tion: The Need for Cognit­ive Secur­ity, RAND Corpor­a­tion, 2017, 3, https://www.rand.org/pubs/testi­mon­ies/CT473.html.

[8] See Chris­topher S. Elmen­d­orf, Ann Ravel and Abby Wood, “Open up the black box of polit­ical advert­ising,” San Fran­cisco Chron­icle, Septem­ber 22, 2017,  http://www.sfchron­icle.com/opin­ion/open­forum/article/Open-up-the-black-box-of-polit­ical-advert­ising-12221372.php.

[9] See Massimo Calabresi, “Inside Russi­a’s Social Media War on Amer­ica,” Time, May 18, 2017, http://time.com/4783932/inside-russia-social-media-war-amer­ica/.

[10] Eliza­beth Dwoskin, Adam Entous, and Craig Timberg, “Google uncov­ers Russian-bought ads on YouTube, Gmail and other plat­forms,” Wash­ing­ton Post, Octo­ber 9, 2017, https://www.wash­ing­ton­post.com/news/the-switch/wp/2017/10/09/google-uncov­ers-russian-bought-ads-on-youtube-gmail-and-other-plat­forms/; Carol D. Leon­nig, Tom Hamburger, and Rosalind S. Held­er­man, “Russian firm tied to pro-Krem­lin propa­ganda advert­ised on Face­book during elec­tion,” Wash­ing­ton Post, Septem­ber 6, 2017.

[11] Dylan Byers, “Exclus­ive: Russian-bought Black Lives Matter ad on Face­book targeted Baltimore and Ferguson,” CNN, Septem­ber 28, 2017, http://money.cnn.com/2017/09/27/media/face­book-black-lives-matter-target­ing/index.html; Josh Dawsey, “Russian-funded Face­book ads backed Stein, Sanders and Trump,” Politico, Septem­ber 26, 2017, http://www.politico.com/story/2017/09/26/face­book-russia-trump-sanders-stein-243172; Adam Entous, Craig Timberg, and Eliza­beth Dwoskin, “Russian oper­at­ives used Face­book ads to exploit Amer­ica’s racial and reli­gious divi­sions,” Wash­ing­ton Post, Septem­ber 25, 2017, https://www.wash­ing­ton­post.com/busi­ness/tech­no­logy/russian-oper­at­ives-used-face­book-ads-to-exploit-divi­sions-over-black-polit­ical-activ­ism-and-muslims/2017/09/25/4a011242-a21b-11e7-ade1–76d061d56efa_story.html.

[12] Alex Stamos, Chief Secur­ity Officer, Face­book, “An Update On Inform­a­tion Oper­a­tions On Face­book,” Septem­ber 6, 2017, https://news­room.fb.com/news/2017/09/inform­a­tion-oper­a­tions-update/.

[13] Carol D. Leon­nig, Tom Hamburger, and Rosalind S. Held­er­man, “Russian firm tied to pro-Krem­lin propa­ganda advert­ised on Face­book during elec­tion,” Wash­ing­ton Post, Septem­ber 6, 2017 (report­ing $100,000 worth of ads linked to Russian oper­at­ives and another $50,000 suspec­ted); Elliot Schrage, “Hard Ques­tions: Russian Ads Delivered to Congress,” Face­book, Octo­ber 2, 2017, https://news­room.fb.com/news/2017/10/hard-ques­tions-russian-ads-delivered-to-congress/.

[14] Eliza­beth Dwoskin and Adam Entous, “Twit­ter finds hundreds of accounts tied to Russian oper­at­ives,” Wash­ing­ton Post, Septem­ber 28, 2017, https://www.wash­ing­ton­post.com/busi­ness/economy/twit­ter-finds-hundreds-of-accounts-tied-to-russian-oper­at­ives/2017/09/28/6cf26f7e-a484–11e7-ade1–76d061d56efa_story.html.

[15] Ben Collins, Kevin Poulsen, and Spen­cer Acker­man, “Russi­a’s Face­book Fake News Could Have Reached 70 Million Amer­ic­ans,” The Daily Beast, Septem­ber 8, 2017, http://www.thedailybeast.com/russias-face­book-fake-news-could-have-reached-70-million-amer­ic­ans; Kevin Bingle, “I Ran Digital For A 2016 Pres­id­en­tial Campaign. Here’s What Russia Might Have Got For $100,000,” BuzzFeed, Septem­ber 8, 2017, https://www.buzzfeed.com/kevin­bingle/how-far-did-russias-100000-go.

[16] Craig Timberg, “Russian propa­ganda may have been shared hundreds of millions of times, new research says,” Wash­ing­ton Post, Octo­ber 5, 2017, https://www.wash­ing­ton­post.com/amphtml/news/the-switch/wp/2017/10/05/russian-propa­ganda-may-have-been-shared-hundreds-of-millions-of-times-new-research-says/. Although the upper bound of the number of inter­ac­tions with the Russian pages estim­ated by that study is in the billions, it likely over­counts due to the fact that the Russi­ans also created many fake accounts to follow their pages, inflat­ing their appar­ent influ­ence. David Karpf, “People are hyper­vent­il­at­ing over a study of Russian propa­ganda on Face­book. Just breathe deeply.” Wash­ing­ton Post, Octo­ber 12, 2017.

[17] A polit­ical market­ing expert told CNN that $100,000 spent on about 3,000 ads looks like a test­ing budget for a larger ad campaign. Donie O’Sul­li­van, “What Russian trolls could have bought for $100,000 on Face­book,” CNN, Septem­ber 7, 2017, http://money.cnn.com/2017/09/07/media/what-russian-troll-army-could-buy-face­book-ads/index.html.

[18] 52 U.S.C. § 30121 (banning foreign nation­als from elec­tion spend­ing); 11 C.F.R. § 100.22 (defin­ing express advocacy).

[19] Alex Stamos, Chief Secur­ity Officer, Face­book, “An Update On Inform­a­tion Oper­a­tions On Face­book,” Septem­ber 6, 2017, https://news­room.fb.com/news/2017/09/inform­a­tion-oper­a­tions-update/ (“The vast major­ity of ads run by these accounts didn’t specific­ally refer­ence the US pres­id­en­tial elec­tion, voting or a partic­u­lar candid­ate.”).

[20] Sara Fisher and David McCabe, “Face­book tells advert­isers more scru­tiny is coming,” Axios, Octo­ber 7, 2017, https://www.axios.com/scoop-face­book-tells-advert­isers-more-scru­tiny-is-coming-2493827891.html; see also Joel Kaplan, Vice Pres­id­ent of Global Policy, Face­book, “Improv­ing Enforce­ment and Trans­par­ency of Ads on Face­book,” Octo­ber 2, 2017, https://news­room.fb.com/news/2017/10/improv­ing-enforce­ment-and-trans­par­ency/.

[21] Alex Stamos, Chief Secur­ity Officer, Face­book, “An Update On Inform­a­tion Oper­a­tions On Face­book,” Septem­ber 6, 2017, https://news­room.fb.com/news/2017/09/inform­a­tion-oper­a­tions-update/.

[22] “Update: Russian Inter­fer­ence in 2016 US Elec­tion, Bots, & Misin­form­a­tion,” Twit­ter, Septem­ber 28, 2017, https://blog.twit­ter.com/offi­cial/en_us/topics/company/2017/Update-Russian-Inter­fer­ence-in-2016—Elec­tion-Bots-and-Misin­form­a­tion.html.

[23] Ibid.

[24] Sean J. Miller, “Digital Ad Spend­ing Tops Estim­ates,” Campaigns & Elec­tions, Janu­ary 4, 2017, https://www.campaignsan­delec­tions.com/campaign-insider/digital-ad-spend­ing-tops-estim­ates (noting $1.4 billion in digital ad spend­ing in the 2016 elec­tion, which signi­fies a shift toward online spend­ing).

[25] 52 U.S.C. § 30104(f). The defin­i­tion excludes news stor­ies. 52 U.S.C. § 30104(f)(3)(B)(i).

[26] 52 U.S.C. § 30101(9)(A)(i) (defin­ing “expendit­ure”); § 30121 (prohib­it­ing foreign nation­als from, inter alia, making expendit­ures).

[27] See Bluman v. Federal Elec­tion Commis­sion, 800 F. Supp. 2d 281, 292 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012) (inter­pret­ing the foreign national ban to prohibit express advocacy or its func­tional equi­val­ent, leav­ing out issue advocacy).

[28] Byron Tau, “Proposed ‘Hon­est Ads Act’ Seeks More Disclos­ure About Online Polit­ical Ads,” Wall Street Journal, Octo­ber 19, 2017, https://www.wsj.com/articles/proposed-honest-ads-act-seeks-more-disclos­ure-about-online-polit­ical-ads-1508440260. The House compan­ion, H.R. 4077, was intro­duced by Rep. Kilmer.

[29] The bill also strengthens require­ments for disclaim­ers on the face of online messages to reveal to view­ers who paid for the ad.

[30] This require­ment would be analog­ous to exist­ing rules govern­ment tele­vi­sion ads regu­lated by the Federal Commu­nic­a­tions Commis­sion. See 47 C.F.R. § 73.1943 (requir­ing broad­casters to keep a publicly avail­able file of requests for air time for polit­ical ads).

[31] Daniel Kreiss and Shan­non McGregor, “Forget Russian Trolls. Face­book’s Own Staff Helped Win The Elec­tion.” BuzzFeed, Octo­ber 3, 2017, https://www.buzzfeed.com/danielkre­iss/forget-russian-trolls-face­books-own-staff-did-more; see also Siva Vaid­hy­anathan, “Face­book Wins, Demo­cracy Loses,” New York Times, Septem­ber 8, 2017, https://www.nytimes.com/2017/09/08/opin­ion/face­book-wins-demo­cracy-loses.html.

[32] There is legis­la­tion that would require candid­ate campaigns to use credit card veri­fic­a­tion systems. E.g., Stop Foreign Dona­tions Affect­ing Our Elec­tions Act, H.R. 1341, S. 1660, 115th Cong. (2017). Congress should consider an analog­ous require­ment for plat­forms’ polit­ical ad sales.

[33] Daniel I. Weiner, Citizens United Five Years Later, Bren­nan Center for Justice, 2015, 7, https://www.bren­nan­cen­ter.org/public­a­tion/citizens-united-five-years-later.

[34] “Polit­ical Nonprofits (Dark Money),” Center for Respons­ive Polit­ics, accessed April 5, 2017, https://www.open­secrets.org/outsides­pend­ing/nonprof_summ.php; Ian Vandewalker, Elec­tion Spend­ing 2014: Outside Spend­ing in Senate Races Since Citizens United, Bren­nan Center for Justice, 2015, 13–14, https://www.bren­nan­cen­ter.org/public­a­tion/elec­tion-spend­ing-2014-outside-spend­ing-senate-races-citizens-united (find­ing signi­fic­ant percent­ages of money spent in compet­it­ive Senate races coming from secret spend­ing groups: 28 percent in 2014 and 21 percent in 2016).

[35] Chisun Lee, Kath­er­ine Valde, Benjamin T. Brick­ner, and Douglas Keith, Secret Spend­ing in the States, Bren­nan Center for Justice, 2016, http://www.bren­nan­cen­ter.org/public­a­tion/secret-spend­ing-states.

[36] See, e.g., Demo­cracy Is Strengthened by Cast­ing Light On Spend­ing in Elec­tions (DISCLOSE) Act of 2017, H.R. 1134, S. 1585, 115th Cong. (2017).

[37] Jon Schwarz and Lee Fang, “Cracks in the Dam: Three Paths Citizens United Created for Foreign Money to Pour into U.S. Elec­tions,” The Inter­cept, August 3, 2016, https://thein­ter­cept.com/2016/08/03/citizens-united-foreign-money-us-elec­tions/; John C. Coates IV et al., “Quan­ti­fy­ing Foreign Insti­tu­tional Block Owner­ship at Publicly Traded U.S. Corpor­a­tions,” Discus­sion Paper No. 888, John M. Olin Center for Law, Econom­ics, and Busi­ness, Harvard Univer­sity, 2016, 11, http://www.law.harvard.edu/programs/olin_center/papers/pdf/Coates_888.pdf (find­ing that corpor­a­tions with major­ity owner­ship by foreign­ers controlled more than $12 tril­lion in assets in 2012, and the share of corpor­ate equity owned by foreign­ers has increased fourfold in the last three decades).

[38] Super PACs, made legal by a lower court decision inter­pret­ing Citizens United in 2010, are allowed to take contri­bu­tions of any amount, includ­ing from corpor­a­tions and unions, in contrast to the contri­bu­tion limits imposed on other polit­ical commit­tees, includ­ing candid­ate commit­tees. Speech­Now.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). They are supposed to oper­ate inde­pend­ently of candid­ates and parties.

[39] “Foreign Nation­als,” FEC, June 23, 2017, https://www.fec.gov/updates/foreign-nation­als/; Federal Elec­tion Commis­sion, Advis­ory Opin­ion 2006–15, May 19, 2006.

[40] Office of the Director of National Intel­li­gence (ODNI), “Assess­ing Russian Activ­it­ies and Inten­tions in Recent US Elec­tions,” Intel­li­gence Community Assess­ment ICA 2017–01D (2017), https://www.dni.gov/files/docu­ments/ICA_2017_01.pdf.

[41] Memor­andum from Ellen L. Wein­traub, Commis­sioner, Federal Elec­tions Commis­sion, Septem­ber 9, 2016, 4, http://www.fec.gov/members/wein­traub/state­ments/Wein­traub-Foreign_Polit­ical_Spend­ing_Rule­mak­ing.pdf; see also Memor­andum from Ellen L. Wein­traub, Commis­sioner, Federal Elec­tions Commis­sion, Septem­ber 28, 2016, https://beta.fec.gov/resources/about-fec/commis­sion­ers/wein­traub/state­ments/Foreign_National_2_Memo_28_Sept_2016.pdf (elab­or­at­ing further on issues concern­ing poten­tial FEC regu­la­tion of foreign-owned corpor­a­tions).

[42] Kenneth P. Doyle, FEC Dead­locks on Curb­ing Foreign Campaign Money, Bloomberg BNA, Septem­ber 23, 2016, https://www.bna.com/fec-dead­locks-curb­ing-n57982077471. Commis­sioner Wein­traub pushed the issue again in June. Memor­andum from Ellen L. Wein­traub, Commis­sioner, Federal Elec­tions Commis­sion, June 20, 2017, https://www.inside­pol­it­ic­allaw.com/wp-content/uploads/sites/8/2017/06/2017–06-Memo-to-FEC-on-Foreign-Money-Discus­sion-FINAL.pdf.

[43] E.g., Colo. Rev. Stat. §§ 1–45–103(10.5), 1–45–107.5(1).

[44] Demo­cracy Is Strengthened by Cast­ing Light On Spend­ing in Elec­tions (DISCLOSE) Act of 2017, H.R. 1585 115th Cong. (2017); Get Foreign Money Out of U.S. Elec­tions Act, H.R. 1615, 115th Cong. (2017).

[45] See, e.g., Robert Maguire, “FEC dead­locks, won’t invest­ig­ate dark money group that spent all its funds on an elec­tion,” Open­Secrets, Novem­ber 18, 2016, https://www.open­secrets.org/news/2016/11/fec-dead­locks-wont-invest­ig­ate-dark-money-group-that-spent-all-its-funds-on-an-elec­tion; Daniel I. Weiner, “The FEC Dead­locks (Again) on Dark Money,” Bren­nan Center for Justice, August 1, 2014, http://www.bren­nan­cen­ter.org/blog/fec-dead­locks-again-dark-money.

[46] Ellen L. Wein­traub, “Our elec­tions are facing more threats online. Our laws must catch up.” Wash­ing­ton Post, Septem­ber 14, 2017, https://www.wash­ing­ton­post.com/opin­ions/our-elec­tions-are-facing-more-threats-online-our-laws-must-catch-up/2017/09/14/dd646346–99a0–11e7-b569–3360011663b4_story.html.

[47] See Ann Ravel, “How the FEC Turned a Blind Eye to Foreign Meddling,” Politico, Septem­ber 18, 2017, http://www.politico.com/magazine/story/2017/09/18/fec-foreign-meddling-russia-face­book-215619.

[48] The agency also declined to pursue a case of foreign nation­als spend­ing to influ­ence a local ballot initi­at­ive, with the Repub­lican commis­sion­ers arguing that the foreign spend­ing ban applies only to candid­ate elec­tions. Michelle Conlin and Lucas Iberico Lozada, “FEC decision may allow more foreign money in U.S. votes, crit­ics say,” Reuters, April 24, 2015, http://www.reuters.com/article/us-usa-elec­tion-fec/fec-decision-may-allow-more-foreign-money-in-u-s-votes-crit­ics-say-idUSKBN0N­F1V420150424.

[49] R. Sam Garrett, The Federal Elec­tion Commis­sion: Over­view and Selec­ted Issues for Congress, Congres­sional Research Service, 2015, https://fas.org/sgp/crs/misc/R44318.pdf.

[50] Meredith McGe­hee, “How Congress can reform campaign finance for the Amer­ican people,” The Hill, April 14, 2017, http://thehill.com/blogs/pundits-blog/campaign/328759-congress-has-a-chance-to-reform-campaign-finance-for-the-amer­ican.

[51] “Reform the FEC to Ensure Fair and Vigor­ous Law Enforce­ment,” Bren­nan Center for Justice, Febru­ary 4, 2016, https://www.bren­nan­cen­ter.org/analysis/reform-fec-ensure-fair-and-vigor­ous-law-enforce­ment.