Regulating New Media Under Campaign Finance Laws

Its still 15 months away from mid term elections; yet, political hopefuls are chomping at the bit to announce their candidacies and begin preemptive attacks against their opponents.  During the last campaign cycle, we all witnessed the power of social web communication to garner grass root followings.  If 2008 was the birth of social media’s presence in campaign life then 2010 will be its toddler stage.  Subsequently, use of the social web and internet advertisements will be at the forefront of campaign finance discussions for 2010 campaigns.

What can and cannot be done on political campaigns is almost always dictated by campaign finance laws.  The Federal Election Commission (FEC) sets campaign finance laws for all federal elections; whereas, state legislatures make their own statutes for state and local campaigns.  One of the main objectives to campaign finance laws is to regulate campaign contribution amounts and campaign advertising.  Due to new internet technologies, these laws must be expanded on or interpreted to take into account changes in online communications and advertising.

We are all familiar with the requirements that most campaign ads must state who authorized and funded the ad.  This is to protect not just the candidate but disclose to the public who paid for the ad.  Usually the campaign pays for ads (of course those who contribute to the campaign are not disclosed) but occasionally an outside organization will pay for ads that attack a candidate’s opponent…can we all say “Swift Boat.”  These rules seem simple enough (opposed to the rest of campaign finance rules) and are easy to follow in television, print, website, and radio ads.

Do these rules apply to social media?  How about internet ads?  What if a candidate decides to create a Facebook game and post on their Facebook fan page…would the game fall under campaign finance rules as a campaign advertisement?

The social web, for the most part is free.  Setting up Twitter and Facebook accounts are simple and cost the user nothing except time.  Twitter has come up with a process to verify celebrity accounts, which should be used for politicians.  A social web faux pas can easily occur when another person posts comments and content in lieu of the actual user.  Social networking  is another form of communication, which is extremely affordable and is becoming an integral part of  political campaigns.

For the most part, activites on the social web do not offend federal or state campaign finance laws as no funds are being expended on purchase of social networking sites.  However, as mentioned above, some activities require design work like websites, blogsites, Facebook applications, and mobile applications.  Do these fall under campaign finance laws?  I argue yes, because they are being created for the sole purpose of promoting the candidate during a political campaign.

As to internt advertising, pay per click campaigns offer a cheap and easy way to drive internet traffic to a candidate’s websites.  Campaigns only pay for advertising after so many people have clicked on the ad, which is different than paying for an ad and then broadcasting it.  A recent article in the Wall Street Journal discusses this issue in the context of a Florida mayorial election.

The Florida Elections Commission decided that a mayoral candidate’s ads on Google and Facebook  violated the state’s election law because they did not include a disclaimer that indicates who bought them. Many other states, including Texas, Alaska, Connecticut and Ohio, also require similar disclaimers.  The candidate’s campaign argued that the messages in question were not technically ads, but rather links to ads, and that it doesn’t pay for them unless a Web user clicks on them and is taken to a Web site that provides the appropriate disclosures.

My question to the campaign is simply, why not include disclaimer information on the Google ads?  Disclaimer information is not only beneficial to voters but to the campaign.  If I were the candidate’s opponent I could buy up my own Google ads, use the candidate’s face and campaign message in the ad and then once a person clicked on the ad direct them to another website…anything from a porn site to another candidate’s site.  As a voter I wouldn’t know what just happened and would most likely be frustrated with the candidate’s whose face is on the ad…not knowing that someone else might have posted the ad.  Further, even though the ad had technically not been purchased until someone clicked on it, the campaign (or other entity) had to pay to create the ad’s content, this should be disclosed to voters.

The Florida case comes as digital media faces broader challenges in accommodating the same sort of disclosures required in traditional advertising. This spring, the Food and Drug Administration sent letters to major drug companies, telling them their search ads needed to include risk information about their drugs in the text of the ad. Separately, the Federal Trade Commission is reviewing whether bloggers and other Web publishers that receive products from marketers and write about it are doing enough to make those relationships known, under truth-in-advertising guidelines.

Regulators are catching up to the digital world but does it make sense to apply traditional rules to new internet technologies?  Should we be able to “click at our own risk” or take information in blogs with a grain of salt?  How much government hand holding should be happening online?  Disclosure is a powerful regulatory tool; consumers deserve to know all the facts but are we also required to implement common sense when using the internet?