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.
Wednesday, the Federal Election Commission approved a draft Notice of Proposed Rulemaking on Internet Communication Disclaimers and the Definition of "Public Communication":
The Commission approved a Draft Notice of Proposed Rulemaking requesting comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The approved draft notice also requests comment on proposed changes to the definition of “public communication.” Comments must be received on or before 60 days after the date of publication in the Federal Register. The Commission will hold a public hearing on this notice on June 27, 2018.
Thanks to the steadfast defense of the First Amendment and the rule of law by the Republican FEC commissioners, the Democrat commissioners have not be successful in their efforts to expand and change the rules regarding Internet advertising ex post, in response to complaints about Internet activities that are clearly legal and/or unregulated under the FEC's current regulations and policies. The FEC Democrats have, at times, also supported unrealistic requirements that would make disclaimers take up the entirety of small Internet ads (such as those on Twitter or mobile devices).
Through the efforts of the Republican commissioners, the FEC is going about regulating this important area in the correct way, through notice and comment rule making with ample opportunity for the regulated community and interested parties to speak on the issue and with plenty of notice to the regulated community on any changes in the rules. All along, the Republican commissioners have supported a reasonable, common-sense approach to regulating Internet communications that protects the public's interests and comports with the goals of campaign finance regulation while taking into account the constraints and opportunities provided by changes in technology, all while protecting the political speech rights of Americans.
The RNLA will provide in-depth analysis of the proposals in this NPRM in the coming weeks. But its very existence is a testament to the leadership of Chair Caroline Hunter, Commissioner Matthew Petersen, former Commissioner Lee Goodman, and the many Republican FEC commissioners who have gone before them.
In their latest efforts to quietly change the campaign finance rules for internet communications ex post, the Democrats on the Federal Election Commission voted last month to dismiss a complaint against a non-profit organization, Illinois Family Action, for tweeting a YouTube video from a congressional candidate. They voted to dismiss the complaint not because communicating for free on the internet has been exempt from federal campaign finance law since 2006 but because the amount spent on the tweet (in staff time, electricity, etc.) was de minimis. It certainly was de minimis, as a tweet takes less than a minute to draft and send, but the fact that the Democrats would vote for, and the General Counsel's office would draft, a statement of facts and law that changed the rules applying to the tweet after the fact is deeply disturbing.
The Republican FEC commissioners' Statement of Reasons outlined multiple legal rules that render a free tweet exempt from campaign finance regulation under federal law:
Consequently, [the Democratic commissioners'] approach would create an internal conflict in the Commission's rules, subjecting to regulation any unsuspecting person who uses a free Twitter account to send a link to a campaign video. . . . Accordingly, by the basic rules of logic, because IFA's tweet is exempt from the definition of public communication under section 109.21 and exempt from the definition of contribution and expenditure under sections 100.94 and 100.155, the tweet cannot be considered a contribution under section 109.23.
They concluded by noting how the Democratic commissioners' position would violate fundamental principles of fair notice (footnotes omitted):
In sum, considering the statutory, regulatory, and policy backdrop set forth above, we
could not interpret our regulations to conclude that IFA made a contribution to the Kinzler
Committee merely by tweeting a link to a Kinzler Committee YouTube video. Our colleagues
disagreed with our conclusion that IFA's tweet is exempt from regulation and instead voted for a
draft Factual and Legal Analysis that implied IFA's tweet might constitute an in-kind
contribution, but dismissed the violation merely because the tweet's value was likely de
minimis. We fundamentally disagree with our colleagues' legal interpretation because, in
contravention of the Commission's 2006 Internet Exemption, it would erroneously leave free
postings on the Internet subject to Commission regulation based on case-by-case judgments of
what does or does not constitute de minimis value.
Furthermore, when the Commission adopted the Internet Exemption in 2006, it largely
freed independent political discourse on the Internet from the threat of federal investigation and
punishment. The Commission notified the public through that rulemaking of the comprehensive
scope of the freedom it was protecting. The public has the right to rely on the Commission's
clear statements published in the Federal Register as to how it will interpret and apply its
regulations and the right to clear rules regulating First Amendment activity. The need for
clarity and consistency is even more acute in the Commission's enforcement process, when the
agency relies on its interpretation of its regulations to punish First Amendment activity.
In our view, dismissing this matter as an exercise of our prosecutorial discretion rather
than as a matter of law in an effort to preserve the Commission's claim to legal authority to
regulate and punish certain online political activity under a strained (and previously
unacknowledged) regulatory theory would chill clearly protected political speech, raise serious
fair notice concems, and ultimately prove untenable. For these reasons, we voted to find no
reason to believe that IFA made a prohibited corporate contribution when it tweeted a hyperlink
to a federal candidate's campaign video.
We are grateful for Commissioners Caroline Hunter, Lee Goodman, and Matthew Petersen for standing up for the rule of law and the First Amendment and not allowing the Democratic commissioners to quietly change the law regulating Americans' everyday conduct without proper procedures and notice.
