Why political ads on social media won’t be regulated in 2018

Paid political advertising on social media will go almost entirely unregulated during the 2018 midterm elections, despite the presence of “dark money” advertising on Facebook and Twitter in 2016 and revelations that the Kremlin-aligned Russians used paid social media advertising to meddle in U.S. elections.

That’s in part because the federal government’s attempts to bring some order to the anarchy of political spending on the web have so far failed or been delayed. The Federal Elections Commission (FEC) had been working on a new rule that would require more disclosures on who is paying for online ads directly advocating for the election or defeat of a federal candidate, much like the existing rules for TV and radio.

But on Thursday, exactly 16 months after the 2016 election, the FEC had to delay the vote as Republicans and Democrats had not yet agreed on a narrow set of rules. The FEC commissioners expressed optimism that the vote would be rescheduled for next week as Republican and Democratic appointees had made progress on a compromise.

Even if they do reach an agreement, it’s unlikely that the new rules would be implemented before the November elections. Republican-appointed Chairwoman Caroline Hunter told VICE News “the commission has been reluctant to change the rules of the game midway through an election season.”

That was news to Vice Chair Ellen Weintraub, who's been pushing her fellow commissioners to embrace significant regulations of online political ads before November. “That’s the first I’ve heard of that,” she said. “This is such a minor change and you can’t enact it before the election? Really? Really?"

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In Congress, the main legislative attempt to regulate online ads — the Honest Ads Act — has also gone almost nowhere. Even if it passed today, and President Donald Trump signed it, a lengthy rulemaking process that follows would almost certainly ensure the reforms would not be implemented before the 2018 elections.

“The FEC has gone years without providing enough clarity on how disclaimers should apply to online ads,” said Adav Noti, the former associate general counsel at the FEC and the senior director of trial litigation at the Campaign Legal Center. “It’s particularly a problem now given what we know about Russian-bought ads during the 2016 elections."

The failure to make progress on the federal level has frustrated some state officials to the point that they are trying to regulate these international platforms themselves. “You have a total lack of regulation of the social media space. We’re eight months from an election. You have to assume that it’s going to happen again,” Democratic Gov. Andrew Cuomo of New York said on a conference call last week just before the state assembly passed a bill to bring more transparency to online political ads.

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After Facebook, Twitter, and Google found that Kremlin-aligned Russians purchased political ads to influence American public opinion during the 2016 election, there has been fraught debate in Congress and at the FEC over how to prevent similar foreign meddling in the November midterms and beyond.

American intelligence officials, including those appointed by President Trump, have been unequivocal that they expect Russian to interfere in the midterms. “We don’t see any signs of them stopping,” Sue Gordon, the principal deputy director of national intelligence, said Thursday onstage at the Center for Strategic and International Studies.

But as the midterms kicked off this week with primary elections in Texas, Facebook, Twitter, Google, and other platforms are being left to regulate themselves.

The tech companies all announced in October that they’d roll out new, more robust disclosure systems for political ads just as their lawyers came to Washington to testify to Congress about Russia’s interference in 2016. “I think you do enormous good, but your power sometimes scares me,” said Republican Sen. John Kennedy of Louisiana at one of the hearings.

In response to a question from Sen. Kennedy, Facebook General Counsel Colin Stretch conceded that the company may not be able to trace the origin of its 5 million monthly advertisers. “To your question about seeing essentially behind the platform to understand if there are shell corporations, of course, the answer is no. We cannot see behind the activity,” Stretch said.

Going forward, Facebook said, it will require political advertisers to verify their identities. And the company is testing a political ad disclosure system in Canada, aiming to roll everything out in the U.S. this summer. Facebook spokesman Andy Stone confirmed that the company is still on schedule.

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Facebook also told the FEC in November that they supported the commission’s efforts to bring more transparency to online political ads. That was a reversal for Facebook whose lawyers argued before the FEC in 2011 that its ads shouldn’t have the same disclosure requirements as TV and radio because they were too small to include the extra text. Instead, they argued that Facebook political should fall under the “small items exemption” that applies to pens and buttons.

“Ad formats available on Facebook have expanded dramatically since that time,” the company told the FEC in November to explain their shift. “Today, some of Facebook's ads continue to be limited in size, with text limitations or truncations based on format and placement of the ad. But other formats allow for additional creative flexibility. Ads can now include videos, can include scrolling carousels of images, and can even cover the entire screen of a mobile device.”

Weintraub said she’s been encouraged by tech company’s response so far but believes voluntary rules for political advertising are insufficient. “Voluntary standards are great but then what happens when the furor dies down and they decide not to enforce those standards,” she said.

But even if the commission embraces new disclosure rules, there will be large loopholes left open for Russia or another motivated actor. The FEC commissioners and good government advocates say Congress has not given the commission the power to regulate “issue advocacy” ads, even if there’s a clear partisan bent on that issue such as with gun rights or police brutality.

Many of the Russian ads run during the 2016 election fell under such “issue advocacy,” including racially divisive ads warning of groups like Black Lives Matter.

Or as Weintraub put it: “This rulemaking is not going to solve the problem.”

Follow Alex on Twitter @AlxThomp

Cover illustration: Leslie Xia