According to the bill’s own legislative findings and its sponsors’ remarks, more than $1.4 billion was spent on online political advertising last year. Of that amount, some $100,000 (less than 0.01 percent) has been reported thus far as coming from Russian interests. But S.1989 fails at even a perfunctory attempt to target foreign interference. Instead, the bill would almost entirely regulate Americans.Mr. Wang explained the statutory changes that the bill would make:
S.1989 begins by undoing the Federal Election Commission’s “internet exemption,” under which online political speech generally is not regulated unless it is a “communication placed for a fee on another person’s website.” . . . The change may appear subtle, but it makes a world of difference as groups making even minimal expenditures could be regulated for content on their own websites, blogs and mass emails. . . . Videos that groups post on YouTube and anything they publish on Facebook and Twitter also possibly could be regulated under S.1989.
S.1989 next expands regulation of so-called “electioneering communications” to include online ads that refer to elected officials and candidates within certain pre-election periods. Again, this legislative rhetoric obfuscates reality. In fact, many “electioneering communications” are non-electoral issue advocacy. . . . At least under current law, only TV and radio ads targeted to those eligible to vote for the referenced candidates are “electioneering communications.” Despite the bill’s legislative findings about the ability to microtarget internet ads, S.1989 would indiscriminately regulate online ads even when they are not targeted at eligible voters. Thus, ads inviting New Yorkers to contact House Ways and Means Committee Chairman (R-Texas) about the pending tax bill could be regulated, as could ads asking Texans to urge Senate Minority Leader (D-N.Y.) to stop blocking judicial nominees.
S.1989 also would effectively impose a new reporting requirement — on top of the existing FEC reporting burdens — for political and issue advertising costing as little as $500. A publicly accessible database would have to contain a copy of all regulated ads and details about how each ad was targeted, when it ran, the average rate charged, the candidate or “national legislative issue of public importance” discussed, and information about the sponsor and its officers or board members. . . . The compliance costs, when combined with the liability that S.1989 would impose on online platforms for recordkeeping errors, may drive online advertising costs out of the reach of many small grassroots organizations. . . .Mr. Wang concludes by proposing some alternate, and much more effective, means of addressing the problem of foreign purchases of ads. Notably, Congress could amend the Foreign Agents Registration Act (FARA), which is a law actually tailored to address foreign influence without impacting the important rights of Americans. That is precisely the problem with the proposals to date: they regulate Americans' free speech rights without actually preventing objectionable foreign speech.