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'Recipe for Litigation'

Groups Spar over FEC Online Political Ad Proposals

Tech Freedom, the Campaign Legal Center (CLC) and others disagree whether a Federal Election Commission proposal to broaden the definition of internet political advertising is an assault on free speech or a needed update to political ad regulation, according to comments posted this week in docket REG-2023-01. The new definition would potentially include payments to social media influencers -- such as cable and broadcast hosts -- and other indirect online promotion.

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The expanded rules could change which online political ads and posts require disclosures, affecting a huge swath of the internet, commenters said. The FEC should “ensure internet communications ‘promoted for a fee’ include disclaimers that provide voters with statutorily required sponsorship information,” said CLC. “This proposal is not a 'technological modernization' akin to updating references from fax machines to email,” said The Institute for Free Speech. “It is a substantive rule that has the potential to greatly expand the FEC’s regulation of internet communication.”

The FEC proposal was issued in a Supplemental NPRM in December, in connection with new FEC rules requiring disclaimers and sponsorship ID for online political ads. The Supplemental NPRM sought comment on whether disclaimers should also be required for online political ads where the platform isn’t being paid to host the content, but the sponsor paid others to promote the product. That could include sponsored posts by influencers, payments to boost the reach of posts, or possibly the salary of a nonprofit’s social media staffers, commenters said. CLC cited a 2022 viral video recorded by reality star Nicole “Snooki” Polizzi on the celebrity message site Cameo that was sponsored by the campaign of John Fetterman (D) when he was running for the U.S. Senate. “Absent a disclaimer statement, viewers of the ‘Snooki ad’ may have had no idea it was paid political advertising,” said CPLC.

The proposed language is vague and would go beyond payments to influencers, said Citizens United. The wording suggests “a vast potential expansion of regulation to cover the internal production costs of political messages disseminated for free on any website or platform any time the person posting content pays any other person to create or generate its content,” the group said. The FEC “has not regulated production and other internal costs for internet communications since 2006,” said Citizens United, saying the FEC should clarify the rule doesn’t apply to internal costs. The FEC proposal “would leave significant uncertainty with respect to what constitutes ‘promotion for a fee,’” said Tech Freedom. “This is a recipe for litigation and chilled speech,” said The Institute for Free Speech.

The proposals would ensure the FEC’s rules “better reflect the political advertising landscape of 2023,” said the Brennan Center for Justice: “Doing so would be fully consistent with the FECA’s broad disclaimer requirements for public campaign communications as repeatedly upheld by the Supreme Court.”

Requiring disclaimers on paid promotions from influencers “is fully consistent with the rationale underlying the disclosure requirements for internet public communications,” said Princeton University's Center for Internet Technology: “The public needs to understand who is behind political messages and how campaigns aim to influence prospective voters.” Payments to influencers “are not advertising fees as traditionally understood -- they are payments for endorsements, which, like a retweet of a free online communication, should not be regulated as ‘advertising,’" said Tech Freedom.

Influencers “are the central element of a novel, highly structured, lucrative advertising market that operates much like the traditional advertising business,” said CLC: “Failing to treat the influencer industry accordingly would mean condemning the Commission’s new disclaimer rule to being antiquated at its inception.”