An important, but often overlooked, part of open, fair, and honest elections is ensuring that the political discourse surrounding elections is free and not subject to over-regulation by the government or the political party currently in power. If voices in the political debate are suppressed through regulation, then voters go to the polls without being truly informed.
The First Amendment to the Constitution protects against abridgement of the freedom of speech by the government. Core political speech is subject to the highest protection under the Constitution, as the Supreme Court described in Buckley v. Valeo: “Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” This broad protection includes “discussion of candidates” and the “constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.”
As the public discourse has increasingly shifted to the Internet, political advertising has shifted as well, prompting the Federal Election Commission (FEC) to consider how to adapt its regulations to new and constantly changing forms of advertisement. Many of the regulations regarding disclaimers and disclosure that were designed for radio, print, and television advertisements are simply impossible to place in a small or short Internet advertisement or, if practicable, would obscure the entire message of the advertisement. The RNLA applauds the FEC for taking a cautious approach and seeking public comment on this important issue to ensure that the FEC’s disclosure goals are met without unduly restricting the rights of the speakers in political advertisements on the Internet.
A realistic approach to Internet advertisement disclaimers needs to recognize both the opportunities and the limitations inherent in Internet advertisement technology and the constantly changing nature of the medium. The regulations must be clear and flexible enough to adapt to future technological developments and changes.The RNLA joined other conservative organizations in urging the FEC to take a reasonable, flexible, and clear approach to Internet political advertisements that would not suppress political speakers' right to disseminate their messages online and would adapt with constantly changing technology.
The Institute for Free Speech analyzed the proposal in detail, noting how the FEC's disclaimer regulations are not suited to modern means of advertisement and thereby burden speakers (footnotes omitted):
Requiring disclaimers that will, in many cases, consume a substantial portion of a particular advertisement will impose significant burdens on these speakers. This is especially true for poorly-resourced individuals and groups relying on small or brief online advertisements precisely because they are cost effective.
These burdens are not hypothetical. Advertisements are getting shorter, but the disclaimer requirements stay the same. Fifteen-second advertisements are an industry standard, and six-second advertisements loom on the horizon. The short run-times forces the speaker to spend more time disclaiming and less time getting their message out. One congressional candidate’s fifteen-second advertisement was cut in half by the required disclaimers. Even those who have more experience running political communications cannot get the disclaimers down to a manageable level. AFT Solidarity produced a fifteen-second video advertisement, where the spoken and visual disclaimers required a third of the advertisement’s run time. Political speakers are already using new platforms, such as Snapchat, that carry strict limitations. For example, New Day for America ran an advertisement on Snapchat featuring Governor John Kasich, and another Snapchat advertisement supported Senator Rand Paul’s view on tax cuts. These are but the start of the new trend in shorter advertisement times on new platforms.The fact that the FEC has taken several opportunities to seek public comment and carefully consider any proposals on Internet advertisement disclaimers is a testimony to constant vigilance by current FEC commissioners Caroline Hunter and Matthew Petersen, and many former Republican FEC commissioners, to fight against the Democrats' headlong rush to regulate Internet speech.