The Federal Election Commission issued proposals this week for new rules to improve the disclosure of political ads online, spurred by the revelation last year that Russian government operatives purchased online ads in their attempt to influence the 2016 elections. The rules are a very small but totally insufficient step towards improving political ad disclosure; it is one crumbly brick in a cathedral of shit.
The rules seek to address the lack of disclosure around political ads on the internet. If you’ve ever watched television around election time, you’ve probably seen a political TV ad and know they include disclaimers about who paid for the ad, but the rules around ads on the internet and social media are less clear. The commission proposed two alternatives: requiring ads to include disclosures within the ad itself or allowing those disclosures to be provided in other ways, like with a link. At this stage, the FEC is just proposing alternatives and opening them up fo a 60-day public comment period; what the final proposal will look like won’t be known until after the comment period closes. That delay also means any new rules will likely not be in place for the 2018 midterms.
About that delay: It’s been a mindblowing seven years since they last addressed this. In 2011, Facebook (along with Hillary Clinton’s lawyer Marc Elias) asked the FEC to exempt it from rules on political disclosure for ads on the site. The FEC deadlocked, meaning Facebook didn’t have to implement any requirements at all. The internet has changed a lot in those seven years! Think of all the memes that have come and gone since 2011!
There are also issues with either alternative proposed by the FEC. The rules wouldn’t do anything about so-called “issue” ads, which don’t expressly mention a candidate or advocate for their election or defeat. That would exclude many of the ads that Russian operatives bought on Facebook during the 2016 election, which instead used issues like immigration to stoke fear and thus support for Donald Trump (one ad used the specter of rapists crossing the border illegally, for example). Senator Amy Klobuchar, a Democrat from Minnesota, told Vice that “the vast majority of Facebook ads purchased by Russia in the last election were issue ads.”
The FEC has been somewhat toothless on issues of foreign spending on elections, as it has been on almost everything else: It takes forever to resolve cases, and in anything remotely controversial, it usually deadlocks along party lines. As one example, the Intercept reported in 2016 that a Chinese national made a $1.3 million donation to Jeb Bush’s super PAC, Right to Rise, which is illegal. The Campaign Legal Center filed a complaint with the FEC, but nothing has been done. A representative for a pro-Trump super PAC was also caught on tape soliciting $2 million from a Chinese national. That case remains unresolved, too. (The FEC did find time, however, to fine the Sanders campaign $14,500 for accepting help from the Australian Labor Party, which paid to fly volunteers over to help with his campaign.)
But the issue of disclosure surrounding political ads has significance far beyond the question of whether Russia successfully influenced voters using Facebook, or whether they or other foreign actors might do so in the future. The FEC’s proposals do nothing to address many of the other myriad problems with political ad disclosures, online and offline. Dark money groups—non-profits that don’t have to disclose their donors, unlike super PACs—can still easily run ads without disclosing their actual sponsor.
In 2016, for example, a group called Protect America’s Consumers ran ads attacking the CFPB, but they contained no information about who was actually behind it, let alone who was funding it; the incorporation documents listed only a law firm that incorporates a lot of dark money groups. The only names ever associated with the group on public documents were strategists, not funders. In 2014, a 501(c)(4) spent almost all its funds on ads to support Tom Tillis’ campaign for Senate, even though such groups are only supposed to spend less than 50% of their funds on political activity. In response, the FEC deadlocked on the issue and the IRS did nothing.
With the focus on Russia, the FEC (and those in Congress pressuring the agency to act) is missing the bigger problem: It’s way, way too easy to spend a lot of money on elections without anyone knowing you’re doing it. How much worse is it for a foreign government to seek to influence U.S. elections than a billionaire whose only goal is to enrich himself—to the detriment of the United States as a whole—and to further insulate himself and his ultra-wealthy class cohort from any sort of accountability or justice from the government? A billionaire who, by definition, has far greater ability to influence the democratic process than the average voter?
The question of foreign influence is significant because we think foreign governments shouldn’t get to influence our elections, which is fair and true. But what about American billionaires? Do we, by implication, think it’s fine if a billionaire who happened to be born in Illinois, but whose interests are solely in enriching himself, spends unlimited amounts of money to get his interests represented in our political system, no matter the impact on the rest of the country? If a billionaire can spend a hundred times the median wealth of an American family to try and shape the outcome to his desires, is that not at least as worthy of urgent action?
The FEC has been deeply dysfunctional for years—again, this is the same body that got hung up in 2016 on whether to use the word “a” or “the” while tweaking an existing regulation. So while any actual points of agreement are worth noting, they’re certainly not worth lauding, because what’s proposed simply isn’t laudable. Campaign finance in the United States is an utter disgrace, and focusing too much on the Russia story will ultimately obscure the true nature of that shame.