The election is approaching, and the media is filled with warnings about foreign interference in the democratic process. The Russians are reprising 2016, and China and Iran are now interceding as well, say U.S. intelligence officials.
How is this being done? Online, of course. Social media platforms are especially suited to purveying and amplifying targeted disinformation. While it’s difficult to stop this activity completely, there’s a clear path to regulating it. The irony is that Congress already has the vehicle — it just hasn’t chosen to do anything with it.
The Honest Ads Act was originally introduced in 2017 by Sens. Amy Klobuchar, John McCain and Mark Warner, then reintroduced in 2019 with Sen. Lindsey Graham replacing McCain. Since then, it’s languished in the House.
The act addresses a basic problem with our election law, which requires transparency in political advertising on TV and radio but not on the internet. This distinction of course, is foolish. You know who paid for a political TV ad promoting or slamming a candidate, because the funder must tell you, and the broadcaster must keep a record. But when it comes to millions of ads on Facebook and other platforms, it’s hands off.
The act would ban foreigners from buying online political ad and applies the same transparency rules to domestic advertisers that apply to broadcast ads; to any ads that mention a candidate, called electioneering ads; and also requires vendors to keep public databases of all online political ads.
There is nothing outlandish here. Campaign finance laws require disclosure of who pays for express advocacy or communications that refer to a candidate in ads, and the amount of money spent. This disclosure has been upheld by the U.S. Supreme Court, as the information is essential to ferret out corruption or the appearance of corruption. Even Citizens United upheld disclosure, saying: “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Even in the case of ballot measure elections, disclosure laws have been upheld. It’s reasonable to think that the courts would uphold broader disclosure of any communications to influence elections on internet platforms.
So, it’s time to revive and pass the Honest Ads Act — with a few changes. For all its strengths, it doesn’t go far enough, especially given the poisonous internet advertising tactics seen in recent years. In particular, it should:
• Amend the definition of electioneering communications to include paid internet and digital ads whenever they run. The act’s current version mimics the original disclosure law that applied to broadcast media, allowing regulation of communications that are close in time to the primary and general elections. We know, though, that electioneering communications in 2016 that had the most pernicious effects on the electoral process began over a year prior to the election.
• Be applicable to all paid internet ads where money is spent to produce the ads, pay for microtargeting of the ads, pay for bots, algorithms, individuals or groups to spread the ads, as well as to paying the platform to place the ad. The amount and sources of all those expenditures should be disclosed.
• Require the auditing of platforms’ public ad databases by regulators and researchers to assure compliance with the Act. And enforcement should be in the hands of federal agencies with teeth, such as the FBI’s Cyber Crimes Division.
It is unfortunately too late to protect the 2020 elections, and misleading and malicious political advertising shows no sign of abating. The United States needs to get its legal and regulatory house in order. Passing an amended Honest Ads Act would be a strong start.
Ann Ravel is the former chair of the Federal Election Commission, former Santa Clara County Counsel and former chair of the Fair Political Practices Commission in California. She is a candidate for 15th District seat in the California Senate.
