FEC Should Avoid Overburdening Online Political Ads

Comments filed by IFS urge the Commission to respect free speech online

Alexandria, VA – The Institute for Free Speech filed comments Friday with the Federal Election Commission (FEC) in response to the agency’s March 26 announcement proposing revisions to disclaimer regulations as applied to public communications over the Internet. The Institute’s comments remind the FEC not to overstep its authority and urge the Commission to adopt regulations that facilitate robust political and issue advertising online.

“The FEC should resist pressure to regulate the Internet with ill-fitting rules designed for other media. The FEC’s mandate is to enforce the campaign finance laws passed by Congress, and it should use that limited authority to craft clear, speech-friendly rules for Internet ad disclaimers,” said Institute for Free Speech Legal Director Allen Dickerson.

Of the Commission’s two proposals, “Alternative B” does a far better job of carefully applying the law than “Alternative A.” Alternative A’s rigid regulations would burden short video and audio ads with new, wordy disclaimers. Alternative B provides more flexibility to speakers.

The Commission should be careful not to diminish the Internet’s long-heralded role as a diversifying force in political discourse. Online political and issue advertising offers an effective means of mass communication to small groups and individuals. These advertisers often cannot afford costly TV and radio ad buys and the complicated regulations they entail.

In addition, the Commission must recognize that technology is always evolving. Internet advertising has changed dramatically over the past decade, and we should expect it to continue changing in the future. The FEC should avoid rigid regulations that limit future innovation or “freeze” current campaign practices in place.

“Speakers should be able to use any commercially-available tool to engage the electorate. The FEC has the opportunity to encourage electronic communications rather than stifle them with disclaimer burdens designed for other media. If the rules are drafted so as to calcify existing technological practices, then they are too burdensome,” note the Institute’s comments.

The Institute makes five specific recommendations: “[T]he Institute recommends that (1) the Commission require only the general disclaimers []; (2) explicitly apply the small item and impracticality exemptions to online advertisements; (3) excuse political advertisers from including disclaimers on the face of their communications where the relevant advertising platform will include identifying information, as a matter of course, within one-click of the advertisement; (4) in all cases, excuse full disclaimers in favor of the bare name of the sponsoring organization where the disclaimer would comprise more than 4% of the relevant advertisement, and fully excuse disclaimers where the organization’s name would also exceed that threshold; and (5) in such cases, require a copy of the excused ad to be included as an addendum to the relevant PAC or Independent Expenditure report covering that expenditure.”

To read the Institute’s full comments, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

The Center for Competitive Politics is now the Institute for Free Speech.