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Demand Transparency for Online Political Ads

The FEC is poised to require disclaimers for political advertising online, but the public needs to insist that they act.

A man walks past a building on the Google campus in Mountain View, California, November 2015. (AP/Jeff Chiu)
A man walks past a building on the Google campus in Mountain View, California, November 2015. (AP/Jeff Chiu)

Recent revelations—including special counsel Robert Mueller’s indictment of Trump campaign officials as well as testimony from Facebook, Twitter, and Google—underscore the extent of the threat posed by Russian interference in the American political system. Every level of government should be doing its part to address this threat. And that includes the Federal Election Commission (FEC), which has taken a preliminary step to address one critical problem: the use of anonymous online political ads.

The FEC is currently accepting comments from the public—due by November 9—on whether online political advertisements should include disclaimers that identify who paid for them. This is not the first time that the agency, which is responsible for enforcing federal campaign finance law, has considered the issue. In fact, they have been asked to provide guidance on online disclaimers on multiple occasions since writing the most recent regulations in 2006. Each time, however, the FEC divided along familiar lines, with three commissioners supporting disclaimer requirements and three commissioners blocking increased transparency for online ads. Recently, however, Russia’s unprecedented use of online ads to try to influence U.S. elections has prompted commissioners to agree—unanimously—to open a preliminary comment period asking the public whether they should again try to address the issue.

The short answer is, yes, they should. Not only would disclaimers be a sensible step to help prevent foreign influence, but they would also make the funding behind political messages more transparent, regardless of the source, extending requirements that are already in place for ads on television, radio, and most other media. The internet has increasingly become a space where Americans debate political issues and obtain information about politics. Therefore, in 2017, limiting transparency for political advertisements to traditional media simply does not cut it.

The FEC is not going to act unless members of the public express their concerns by submitting comments. If you are ready to submit your comment now, click on this link to access the FEC’s online comment system and let the commissioners know why you think it is important to require political ads on Facebook, Twitter, Google, and elsewhere online to identify who is paying for them. If you would like more information before you submit your comment, continue reading and use the link at the end of this article.

FEC inaction amidst the shift to digital media

Consider this: In the 2012 U.S. election, only 1.7 percent of funds for political advertising were spent on ads online. A mere four years later, that percentage increased almost eight times to 14.4 percent. Furthermore, total spending on digital media rose from $22 million in 2008 to nearly $1.5 billion during the 2016 election cycle—a 68-fold increase. Yet the FEC’s most recent online disclaimer rules were written more than a decade ago, when Myspace was still the most popular social networking site and the iPhone had not yet been invented. Today, 68 percent of American adults use Facebook, 77 percent own a smartphone, and more Americans get their political news from an online platform than from any other source.

Unfortunately, in the FEC’s earlier consideration of online disclaimers, three of the six commissioners consistently voted to allow broad categories of online ads to omit disclaimers of any kind. Their position was an odd one; the letter of the regulations applies disclaimer requirements to “communications placed for a fee on another person’s Web site.” Yet, in 2010 and 2011, tech companies such as Google and Facebook argued that they should be eligible for one of two exceptions to the rule: the “small items” exception, which includes things like bumper stickers, buttons, and pens, where a visible disclaimer simply won’t fit; and the “impracticable” exemption, which covers things like water towers and skywriting. Although neither of these exceptions seems particularly relevant to the internet—where limited space is a self-imposed constraint and where there exists an abundance of possible workarounds—half of the commissioners took the side of the tech companies, creating a stalemate that has persisted for years.

In the meantime, some tech companies settled on alternative disclaimer arrangements, for example, allowing the user to click through to another page with the relevant information—an arrangement that, in 2010, four commissioners agreed to permit for Google. In general, however, tech companies felt empowered to do the bare minimum.

Facing mounting pressure, Facebook has recently made a number of voluntary commitments to improve transparency and address Russian interference. Twitter also recently announced that it would launch several new initiatives, including an “Advertising Transparency Center” that users can use to find information about Twitter ads.

While these are laudable efforts, they are not a substitute for FEC action. There are still no clear, across-the-board rules for disclaimers on online ads. Voluntary efforts by tech companies, however well-intentioned, are likely to vary from company to company, with some making adequate efforts and others doing nothing at all. This system, which is based on guesswork and voluntary compliance, would not be fair to new entrants, and, over time, it would be little better than no rules at all. That is particularly concerning given how much is at stake.

Transparency, Russian interference, and the need for action at the FEC

Absent disclaimers, online ads provide a haven for well-funded interests to anonymously influence elections. Even worse, they have afforded the same secrecy to foreign governments, which cannot legally spend money to support or oppose candidates in American elections.

This September, Facebook revealed that Russian operatives bought 3,000 ads on its platform, which reportedly may have reached anywhere from 10 million to 70 million users. A few weeks later, Twitter disclosed that it had found 200 suspicious Russian accounts and that a Russian media group had bought political advertisements that targeted the U.S. audience. Finally, last month, Google announced it had found evidence of tens of thousands of dollars spent on sites such as YouTube, Gmail, and its DoubleClick advertising network. U.N. Ambassador Nikki Haley described these acts as “warfare.”

The FEC’s rulemaking cannot address all aspects of this problem. For example, we know that many of the Russian ads contained divisive, issue-based messages that did not advocate for a candidate or a political party. Such ads generally fall outside the scope of the FEC’s disclaimer rules and could only be addressed by new legislation. Fortunately, a bipartisan group in Congress recently introduced the Honest Ads Act—a bill that would expand the types of communications for which the FEC can require disclaimers and would provide some disclosure for ads that discuss national political issues.

But the FEC cannot simply defer this problem to Congress. It is the FEC’s responsibility to ensure that the campaign finance laws already in place are adequately implemented and enforced. The Russian intervention in the 2016 election revealed that far too little is being done. American voters have a right to know what interests are spending money to influence their votes and to have their elections protected from illegal foreign interference. The FEC should be doing more, both to ensure transparency and to protect the integrity of our elections. It can start by writing clear rules to provide disclaimers for online political ads.

Now you know the issue, submit your comment to the FEC! Click on this link to access the FEC’s online comment system. On the first page, the default selection states you are submitting a comment on your own behalf; simply click “Next,” provide your personal information on the following page, and then input your comments in the box on the third screen. The FEC has expressed a particular interest in hearing from the public about “the informational benefits of disclaimers,” and how individuals use the internet to get information about campaigns. But the most important thing is to tell the commissioners, in your own words, why they should take action.

Alex Tausanovitch is the associate director of Democracy and Government Reform at the Center for American Progress. Adele Hayer is a legal intern at the Center.

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Alex Tausanovitch

Former Senior Fellow

Adele Hayer