RNLA Files Comment with FEC on Internet Ad Disclaimers

Today, the RNLA submitted a comment to the Federal Election Commission on its proposed rule making on Internet advertisement disclaimers:

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. 

Testimony to House Oversight Committee on Threat to Free Speech from Online Ad Regulation

Yesterday, Allen Dickerson of the Center for Competitive Politics (as of today, now called the Institute for Free Speech) testified to the House Oversight and Government Reform Committee’s Subcommittee on Information Technology on the dangers posed to free speech by proposals to regulate internet advertisements (footnotes omitted):

It is not obvious that anything will be gained in exchange for these burdens on fundamental liberties. Whatever modest advances may be made in preventing foreign influence will be on the backs of regulated Americans, who will bear the overwhelming burden under any proposed campaign finance regulation. . . . [B]roadcast mass advertising is not a game for small grassroots speakers. . . . By contrast, Facebook or Google AdWords advertisements calling for named members of Congress to, say, repeal the Jones Act in the immediate aftermath of a devastating late September hurricane, are more likely to be engaging in those “issue discussions unwedded to the cause of a particular candidate” that are “vital and indispensable to a free society.” The Supreme Court is less likely to bless the regulation of that speech. . . .

Mr. Dickerson points out the current proposals are impractical and would expand the definition of electioneering communications to include genuine issue speech:

Unless Congress can assure itself that it is regulating electioneering, and not mere political discussion about issues of public interest, it ought to act with care. After all, as the Supreme Court noted in the landmark case of Mills v. Alabama, “[w]hatever differences may exist about the interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”

In addition, there are practical concerns with merely cloning the electioneering communication standard applied to broadcast ads. What constitutes a communication reachable by 50,000 persons in the “relevant electorate?” Do the technical means exist to determine that answer without imposing insurmountable compliance costs? After all, basic economics dictates that such costs will be passed on to the consumer. And increasing compliance costs will crowd out precisely the small, grassroots speakers that are most vulnerable and rely most upon the Internet to disseminate their message. Conversely, removing the targeting requirement entirely will simply expand the scope of regulated communications, sweeping in discussions of key legislators, such as committee chairs, even where those conversations are not directed at constituents and are almost certainly not intended to affect electoral results.

In the end, Mr. Dickerson cautions against a broad regulatory approach that may or may not actually prevent foreign advertising (some of which already prohibited by law) but would certainly infringe on Americans' important rights of political speech online:

These concerns suggest caution. The Internet’s role as a conduit for grassroots speech and association is delicate, and too-easily crushed by overzealous or ill-considered restrictions. In particular, Congress should be wary of burdening an enormous swath of Americans’ grassroots political advocacy in the name of preventing, or attempting to prevent, relatively small foreign purchases. That concern is especially acute where such foreign meddling is already regulated under an unrelated statutory regime that does not burden Americans’ First Amendment liberties.

Mr. Dickerson's entire testimony is well worth reading.  A point that he makes throughout is worth remembering: the internet allows small, grassroots organizations and individuals to speak (i.e., advertise their message) in a way that is unprecedented.  If liberals are truly concerned about "dark money," the influence of the rich and powerful, and corporate speech drowning out the little person, as they claim they are, they will stay far away from regulations that restrict internet speech, as those regulations would disproportionately impact individuals' and small organizations' ability to disseminate their messages.