Television and radio have long been required to disclose the purchasers and content of all who purchase advertisements on their stations. Internet companies have not.
A newly introduced bill would be the first to hold internet ads to the same transparency requirements.
What the bill does
The Honest Ads Act, numbered S. 1989 in the Senate and H.R. 4077 in the House, would mandate that internet companies reveal the identities and content of advertisements related to elections or campaigns.
Specifically, this would be done by amending a decades-old existing campaign finance law from 1971, by adding the phrase “paid internet or paid digital communication” to its list of media forms subject to the law.
It would also require any website with at least 50 million monthly viewers — including Facebook, Google, and Twitter — to maintain a public list of any organization or person who spends at least $500 in election-related ads. That’s a much more stringent threshold than the $10,000 in an original draft version of the bill.
An exemption is made for “news story, commentary, or editorial” to ensure that the requirements are not levied on legitimate news reporting or opinion pieces.
Both versions of the bill were introduced on October 19, by Sen. Amy Klobuchar (D-MN) in the Senate and Rep. Derek Kilmer (D-WA6) in the House.
Foreign spending in U.S. elections has been banned since 1966, but a loophole has largely allowed internet companies to avoid detection.
That’s because the list of forms of media explicitly mentioned in the currently-prevailing campaign finance law, the Bipartisan Campaign Reform Act of 2002, includes television and radio but neglected to mention internet advertising, which barely existed at the time.
As a result, Facebook recently revealed that that Russian entities bought about $100,000 worth of political advertisements on the website between June 2015 and May 2017.
Amid public outcry, Facebook is one of the only companies that has voluntarily revealed such information, but it’s surely far more widespread than just on that website. Total Internet ad spending related to the presidential election quadrupled from 2016 and 2012 as social media websites surged in popularity.
What supporters say
Supporters argue that sunlight is the best disinfectant, especially as similar 2016-style attempts to undermine elections by Russia and others appear likely again for the upcoming 2018 midterms and 2020 presidential race.
“This is an issue of national security — Russia attacked us and will continue to use different tactics to undermine our democracy and divide our country, including by purchasing disruptive online political ads,” Senate lead sponsor Klobuchar said in a press release. “We have to secure our election systems and we have to do it now — the next election is only 383 days away.”
“This bipartisan legislation would help protect our democracy by updating our laws to ensure that political ads sold online are covered by the same rules as TV or radio stations — and make them public so Americans can see who is trying to influence them,” Klobuchar added.
What does Silicon Valley say?
Most major internet companies do not appear to have yet weighed in on this bill specifically. The Internet Association, a group comprising companies including Apple, Amazon, Google, Facebook, and Twitter took a wait-and-see approach.
“We are reviewing the legislation and look forward to further engagement with the sponsors,” Internet Association President & CEO Michael Beckerman said in a statement. “This is an important issue that deserves attention and the internet industry is working with legislators in both the House and Senate interested in political advertising legislation.”
Facebook CEO Mark Zuckerberg expressed openness to the idea prior to its official introduction, rather than the outright opposition one might expect.
“We are in a new world,” Zuckerberg said in a Facebook Live video in September. “It is a new challenge for internet communities to have to deal with nation-states attempting to subvert elections. But if that’s what we must do, we are committed to rising to the occasion.”
What opponents say
Opponents counter that more disclosure and requirements will have a chilling effect on free speech.
“The legislative principles the Senators have announced are concerning. Though purporting to regulate Russia, in fact this regulates Americans,” said former Federal Election Commission Chair Brad Smith. “By imposing more broad burdens on Americans’ speech rights rather than targeting foreign interests interfering with our elections, their bill would make America look a little bit more like Russia.”
The chair of the Senate committee which has jurisdiction over the legislation hinted the bill may be too much of a quick fix, before it’s been fully determined what effect — if any — Russian online advertising had on the 2016 election’s outcome.
“I’ll look at everything. But there are a lot of investigations going,” Sen. Richard Shelby (R-AL) told the Wall Street Journal when asked about the bill. “Sometimes you rush to judgment. Sometimes you need to rush. But right now, I think we need all the information we can get.”
Odds of passage
The Senate bill has two bipartisan cosponsors: Sens. Mark Warner (D-VA) and John McCain (R-AZ). It awaits a vote in the Senate Rules and Administration Committee.
McCain has long broken with his party to favor transparency in election-related communications, having coauthored 2002’s so-called McCain-Feingold law which required increased disclosure of election-related spending. Much, though not all, of it was struck down as an unconstitutional violation of First Amendment free speech in the 2010 Supreme Court case Citizens United v. FEC.
The House bill has one Republican cosponsor: Rep. Mike Coffman (R-CO6). It awaits a vote in the Committee on House Administration.