Campaign finance has received more than its usual attention recently with the revelation that the Russian government spent at least $100,000 on political Facebook ads surrounding the 2016 election. This episode highlights just how unprepared we are to regulate campaign finance in the digital age.
As the Bipartisan Policy Center puts it, “So much of the campaign finance regulatory and disclosure regime is predicated on television as the primary mode of political communication.” Let’s take one rule: the prohibition on foreign nationals from campaigning. This rule is easy to enforce in television: broadcasters ensure that political ads include a disclosure of who paid for them. That’s why you so many hear so many “this ad was paid for by [candidate/political group]” messages around election time.
A Facebook ad, however, can be published by anyone, from anywhere in the world, without disclosing anything. Millions of unsuspecting Americans saw ads from accounts like “_American.made,” “Army of Jesus,” and “Blacktivist,” having no way of knowing they were the work of Kremlin-backed Internet Research Agency. The very fact they exist at all means Facebook was not providing adequate oversight, and the Federal Election Commission (FEC) has no means of doing so.
Facebook CEO Mark Zuckerberg has announced steps to amend this problem. He has said the company will make advertisers “confirm the business or organization they represent before they can buy ads,” and that it will allow users to see all of the ads a particular organization buys, no matter who those ads target.
These are meaningful changes, assuming Facebook follows through. However, there are outstanding questions that only Congress can answer. For one, how should ads that are issue-specific—but don’t actually mention a candidate—be regulated online? The FEC has said it cannot regulate foreign ads unless it specifically campaigns for an individual, meaning many of the Russian-paid ads are totally legal.
Secondly, how should we classify ads that are not promoted through direct payment to the social media company, but through some other means? Imagine that, instead of going through Facebook’s formal advertising process, a Russian operative publishes political content and pays other users—or creates bots—to repost it, thereby creating the illusion of popularity. Should such action be subject to regulation?
Lastly, broadcast stations are currently prohibited from charging certain candidates more than others for ad placement. Should this rule apply to social media? Right now, candidates can pay vastly different amounts to serve their ads on Facebook, chiefly because the amount Facebook (and other platforms) charges is partially based on how popular it predicts your content will be. The more clickable the content, the cheaper the price. This is why advertisers often use provocative or enticing images, often called “clickbait,” for their social media ads: they’re trying to get the most bang for their buck. It’s also why some suspect the Trump campaign got a much higher return on investment for digital advertising than did the Clinton campaign.
These are a few of the many problems that have arisen since the advent of digital advertising. Our laws have fallen behind our technology, and very little has been done to rectify the situation (although a group of senators proposed a bill that would help). If you would like to learn more about how Russia used social media to interfere in our electoral process, download this briefing: An overview of Mueller’s indictment of 13 Russian nationals and three Russian organizations.