Online Political Advertising: Disclaimers and Policy Issues

Online Political Advertising: Disclaimers and Policy Issues

Updated March 18, 2019
Online Political Advertising: Disclaimers and Policy Issues
Introduction and Background
Several Members of Congress filed comments. On
How campaign finance law and regulation affect online
November 16, 2017, the FEC voted to draft revised
political ads illustrates the challenge of incorporating
internet-disclaimer rules (a notice of proposed rulemaking)
emerging technologies into preexisting regulatory
for paid advertising, and held a hearing in June 2018.
frameworks. Should Congress adapt campaign finance law
Report language (H.Rept. 116-9) accompanying the
and regulation to emerging technology and tactics, and if
FY2019 consolidated appropriations law (P.L. 116-6)
so, how? How can or should it do so amid disagreement
directs the FEC to update congressional appropriators on
over what constitutes “political” messages? In addition to
the rulemaking.
grappling with these complex and politically sensitive
topics, the debate covers an area of law that receives
Which Advertising Is “Political”?
substantial First Amendment protection. This CRS product
The term political advertising does not necessarily mean
provides a brief policy overview.
the same thing in popular culture or media accounts as it
does in federal policy and law. In the former, the term
Campaign finance policy provides a regulatory framework
generally implies any advertising that concerns American
for identifying and reporting information about ads clearly
politics or policy issues. Campaign finance law generally
intended to affect federal elections. Many ads, however,
does not use the term political advertising, but distinguishes
that might shape the environment in which a campaign is
between advertising that explicitly refers to federal
waged—but without necessarily affecting an election—
candidates or elections, versus that which refers to public
likely fall outside campaign finance law. Paid online ads
policy issues without mentioning candidates.
must include language identifying the sponsor, but some
requirements for ads transmitted via other media do not
These differences are not merely semantic. The content,
apply to online ads.
timing, and medium of advertising all can affect whether or
how it is regulated in federal campaign finance law and
Latest Policy Developments
agency rules, as well as policy options available to
Congress has not enacted legislation focused specifically on
Congress. Perhaps most importantly, advertisements that
online campaign activity, although elements of existing
refer only to policy issues but do not address elections or
statute and Federal Election Commission (FEC) rules
candidates likely fall outside the bounds of campaign
address internet communications. In March 2019, the
finance law and regulation.
House passed H.R. 1, which contains provisions of the
Honest Ads Act. First introduced in the 115th Congress as
Communications containing express advocacy call for
H.R. 4077 and S. 1989, the bill would amend the Federal
election or defeat of candidates. Issue advocacy calls for
Election Campaign Act (FECA; 52 U.S.C. §§30101-30145)
support for or opposition to policy issues but does not
to further regulate some online ads.
necessarily refer to particular candidates. Campaign finance
policy and law regulates express advocacy, but typically not
Before these recent developments, as the internet became
issue advocacy, unless those messages are classified as
more politically prominent in the early 2000s, questions
electioneering communications (ECs). Under FECA, ECs
emerged about which activities were considered public
refer to candidates during pre-election periods and in
communications (discussed below), and thus subject to
certain media but do not call for election or defeat.
FECA and FEC regulations. The FEC issued rules in 2006,
implementing parts of the Bipartisan Campaign Reform Act
Disclaimers and Disclosures
(BCRA), that exempted most internet activities in which
As used in campaign finance policy and law, disclaimer
individuals would engage (e.g., blogging) from the public
means a statement identifying who is responsible for a
communication regulatory definition—but required
political advertisement. Disclaimers are often confused with
disclaimers on paid online ads (11 C.F.R. §100.26).
the related but separate concept of disclosures. The latter
refers to publicly reporting (e.g., to the FEC) information
The Supreme Court’s 2010 Citizens United decision, and
about contributions and expenditures. This CRS “In Focus”
reports of foreign interference in the 2016 elections using
does not discuss disclosure. In general, however, the
social media, renewed interest in online advertising in
activities discussed herein would be reported to the FEC in
Congress and at the FEC. In 2011 the FEC announced an
regularly filed financial reports, in special notices filed
Advanced Notice of Proposed Rulemaking (ANPRM) to
within 24 or 48 hours of an expenditure, or both. Issue
receive comments on whether it should update its rules
advocacy (unless meeting the electioneering
concerning internet disclaimers, but the agency did not
communication criteria) is not disclosed to the FEC.
advance new rules. In 2016, the FEC announced that it was
reopening the comment period on the 2011 ANPRM. It
again reopened the comment period in October 2017.
https://crsreports.congress.gov

Online Political Advertising: Disclaimers and Policy Issues
Online Ads and Campaign Finance Policy
Policy Discussion and Options in Brief
FECA and FEC regulations address various kinds of
The most relevant FEC rules governing online ads date to
political activities and messages. Different requirements
2006, and most of the statute dates to at least 2002. Both
apply to different circumstances. FECA defines public
were formulated before the internet played its current role
communications as “a communication by means of any
in American politics, and in an environment in which
broadcast, cable, or satellite communication, newspaper,
protecting individual volunteer activity was a primary
magazine, outdoor advertising facility, mass mailing, or
concern. Do those rules need to be updated, by whom, and
telephone bank to the general public, or any other form of
how? Perhaps more fundamentally, how can—or should—
general public political advertising” (52 U.S.C.
federal regulation of political advertising address previously
§30101(22)). FEC regulations (11 C.F.R. §110.11) also
unanticipated intersections of law, regulation, and campaign
specify that public communications disclaimer requirements
tactics? In sum, is the current regulatory framework suited
(see below) apply to fundraising solicitations and
to the current policy challenge?
electioneering communications.
Currently, that framework generally depends on advertising
Disclaimer Requirements for Online Ads
promoting some combination of (1) express advocacy; (2)
fundraising; or (3) electioneering communications. Absent
FECA, FEC rules, or both typically classify advertising
at least one of those elements, the disclosure and
from political committees (candidate campaigns, parties,
disclaimers normally associated with campaign advertising
and political action committees [PACs]) as public
would not apply. In addition, if volunteers perform online
communications. As such, political committees’ online
activity, or if an activity does not involve a financial
campaign ads, fundraising solicitations, publicly available
exchange, that, too, might avoid campaign finance
websites, and more than 500 “substantially similar” emails
regulation.
generally must contain disclaimers (52 U.S.C.
§30120(a)(1); 11 C.F.R. §110.11). The same is true for
If Congress pursues additional regulation of online
other “persons” (e.g., corporations or unions post-Citizens
advertising, it could either expand the scope of campaign
United) whose messages meet the public communications
finance law; create some other area of law regulating
definition by expressly advocating election or defeat of
general policy messages; or some combination of the two.
federal candidates (11 C.F.R. §110.11(a)(2)).
Options include, for example, extending to online

advertising Federal Communications Commission (FCC)
Candidate ads must state that the candidate’s authorized
requirements for broadcast, cable, and satellite operators to
committee (campaign) paid for the ad (52 U.S.C.
publicly disclose advertising purchases; reclassifying the
§30120(a)(1); 11 C.F.R. §110.11(b)(1)).

distinction between express advocacy and issue advocacy,
Ads not authorized by candidates (e.g., party
such as Congress did in BCRA’s electioneering
independent expenditures) must state that no candidate
communication provision; or, perhaps looking to other
is responsible for the ad and must provide a name,
policy areas, such as lobbying or telecommunications.
contact information, or website address for the “person”
(entity) that paid for the ad (52 U.S.C. §30120(a)(3); 11
The Honest Ads Act, as previously introduced and
C.F.R. §110.11(b)(3)).
contained in H.R. 1, would expand the public

communication and electioneering communications
Other requirements affect coordinated party
definitions to include paid online ads, thus applying
expenditures and address technical issues, such as
FECA’s disclaimer and disclosure requirements. The
prominence of the disclaimer.

legislation also would require the FEC to administer a new
FECA specifies that candidate voice-over and image
database containing information about these ads, as well as
requirements, known as the “stand-by-your-ad”
those concerning some policy issues. FECA regulation of
provisions, apply to certain broadcast ads (52 U.S.C.
ads other than those that clearly attempt to influence
§30120(d)(1)), but does not extend the requirement to
elections would mark a change in campaign finance law.
online ads.
For additional discussion, see CRS Report R41542, The
Disclaimer Exemptions
State of Campaign Finance Policy: Recent Developments
FEC rules adopted in 2006 exempt unpaid, independent
and Issues for Congress, by R. Sam Garrett; CRS Report
online activity from disclaimer requirements (11 C.F.R.
R43719, Campaign Finance: Constitutionality of Limits on
§§100.26; 100.94; 100.155). FEC rules also waive
Contributions and Expenditures, by L. Paige Whitaker;
disclaimer requirements when the medium’s format or size
CRS In Focus IF10697, Foreign Money and U.S. Campaign
would make disclaimers impractical (e.g., skywriting or
Finance Policy, by R. Sam Garrett; and CRS Legal Sidebar
campaign buttons) (11 C.F.R. §110.11(f)). When asked for
WSLG1857, Foreign Money and U.S. Elections, by L.
advisory opinions (AOs) about how these exceptions affect
Paige Whitaker.
some online advertising, the FEC has reached different
conclusions, although their applicability varied with each
R. Sam Garrett, Specialist in American National
request. In December 2017, the agency advised (AO 2017-
12) that certain planned Facebook video and image ads
Government
require the authorization/payment disclaimers (52 U.S.C.
IF10758
§30120(a)) explained above. However, commissioners
could not agree on the rationale for their conclusion.
Although AOs provide additional guidance, they apply only
to specific circumstances and do not provide the certainty
of law or regulation.
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Online Political Advertising: Disclaimers and Policy Issues

Disclaimer
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