Last month, we reported that Democratic superlawyer Marc Elias had represented Facebook in 2006 when it petitioned the FEC to exempt ads on its site from political disclosure laws. (It argued that the ads were simply too teeny-tiny to necessitate disclosure.) The FEC deadlocked and took no action, leaving Facebook free to host ads without requiring their sponsors to tell anyone who they were.
Now, Democratic senators Amy Klobuchar and Mark Warner have introduced a bill that would, finally, regulate political ad disclosure online. And Elias’ firm will once again be aiding Facebook and Google as they seek to, as the New York Times puts it, “navigate legal and regulatory issues.”
This is a very Times way of saying “lobby to make any regulations easier to comply with and therefore likely much more toothless.” The Times’ Kenneth Vogel also reported that “government officials working on the investigations into the Russian-funded ads and the efforts to enact stricter disclosure requirements say Facebook and Google have been less than enthusiastic partners.” What a shock!
As you would expect, Facebook and Google have touted their own new policies designed to curtail “malicious actors,” such as new policies preventing the targeting of ads based on race or religion (which, yes, was a thing). Corporations always assure the government that they can totally take care of this stuff themselves with their own rules—which they can change whenever they want with no recourse, quietly—instead of having the government regulate them. Of course, the government hardly ever regulates them anyway, particularly at the FEC, which has been deadlocked on most issues for years.
Elias responded to the Times’ request for comment—which he did not when Splinter reached out last month—arguing that the exemption he successfully sought for Facebook “would not have stopped” Russia from aiding Trump. Ann Ravel, a former FEC commissioner, told the paper that “even if Facebook might not have known about the Russian advertising, they knew — and we all knew — that this was possible.”
Elias’ work for Facebook and Google puts him at odds with the two prominent Democrats who are proposing the new legislation, not to mention the larger Democratic focus on hammering all aspects of The Russia Story. The bill is, unsurprisingly, framed as an attempt to stop “foreign” influence over elections—which, to be clear, is bad!— but its effects would actually be much wider, and would apply to domestic actors too, in addition to ads that are about national issues rather than candidates. If the Koch brothers, or Tom Steyer or George Soros, wanted to buy Facebook ads, they’d have to disclose at least some more information about it. (Of course, it’s still far too easy to set up a super PAC and an anonymous LLC in Delaware and do all your transactions through that, but progress is progress.)
Which explains why companies like Facebook and Google, and their mates like Marc, want to water down this legislation. It’s not that they’re agents of the Kremlin seeking to help foreign actors influence our elections; it’s that they oppose transparency, and really regulation at all, on principle. They want to be left alone to run ads from whoever wants to pay them with as little oversight as possible. And it seems that for every Democratic effort to limit this, there’s always another powerful Democrat ready to help sink it.