Center for Competitive Politics Statement on Warner-Klobuchar ‘Dark Legislation’

Phantom bill would regulate Americans’ online speech more than it would target foreign interference

Alexandria, VA – The Center for Competitive Politics (CCP) released the following statement today on the press conference held by Senators Mark Warner and Amy Klobuchar to announce their “Honest Ads Act”:

“Despite continuing to articulate provisions they purport are in their bill, Senators Warner and Klobuchar still have not unveiled the text of their legislation that is supposed to address the problem of foreign interference in last year’s election campaign on American social media platforms,” said CCP Chairman and Former Federal Election Commission Chairman Brad Smith. “This is, in effect, ‘dark legislation.'”

“Even without disclosing the ‘devil in the details’ of their bill,” Smith added, “the legislative principles the Senators have announced are concerning. Though purporting to regulate Russia, in fact, this regulates Americans. By imposing more broad burdens on Americans’ speech rights rather than targeting foreign interests interfering with our elections, their bill would make America look a little bit more like Russia,” Smith said.

To begin with, the yet-to-be-released bill purportedly would extend to social media ads the existing “electioneering communication” FEC disclaimer and reporting requirements for broadcast, cable, and satellite ads that mention candidates. It is unclear at what level these requirements would apply, although Senator Klobuchar mentioned a minuscule $500 aggregate threshold.

The requirements for so-called “electioneering communications” are already confusing enough. As CCP has demonstrated, even Harvard Law Professor Larry Lessig was unable to decipher the proper FEC disclaimer to use on the ads run by his super PAC, which sought to impose more speech laws on Americans. Combined with the complex FEC reporting and record-keeping requirements, the average grassroots group seeking to use the Internet to communicate with fellow citizens runs an extraordinary risk of getting entangled in complaints and investigations for inadvertent violations of these rules.

Notwithstanding their name, “electioneering communications” primarily regulate issue ads that urge constituents to contact their elected officials about legislative matters. In other words, these ads facilitate accountability for elected officials.

According to the Senators, their unseen bill also would require online advertising platforms to collect and maintain information about their advertisers and retain copies of ads in a “public file,” similar to the requirements for broadcast, cable, and satellite operators. This requirement would apply not only to political ads, but to any advertising about controversial national, state, or local issues. While these record-keeping burdens are manageable relative to the large revenues that broadcast media receive from advertisers, they will be extraordinary for online advertising – especially at the $500 threshold level the Senators propose.

According to the Senators, the bill will compound this regulatory burden by requiring advertising platforms to ensure that “political advertisements” are not being purchased by foreign interests. This is an unprecedented imposition of liability on advertising platforms to enforce campaign finance laws.

“The combined and foreseeable effect of these record-keeping requirements and liability burdens is that internet platforms may simply stop selling advertising at lower dollar amounts. This would shut off an indispensable outlet for small grassroots groups to get their message out,” said CCP President David Keating. “Senator Klobuchar claims the same rules that apply to broadcast media should apply to all other media, but this has never been the case. Direct mail, newspaper advertising, and handbills are not regulated in the same way,” said Keating.

“Nobody wants Russia interfering with our elections, but a bill that would regulate $1.4 billion in online political advertising because of roughly $100,000 in spending by the Russians is not the right approach,” said CCP Senior Fellow Eric Wang. “Instead, we should be looking at strengthening the enforcement of the Foreign Agents Registration Act (FARA), which is appropriately limited to the type of foreign political activity that Russia engaged in, and amending that law if necessary,” said Wang.

At the time of this statement, the text of the “Honest Ads Act” still had not been made public.

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