Campaign Finance Policy and Email Spam Filtering: The Google Advisory Opinion Request

Campaign Finance Policy and Email Spam Filtering: The Google Advisory Opinion Request

INSIGHTi

Campaign Finance Policy and Email Spam
Filtering: The Google Advisory Opinion
Request
Updated August 12, 2022
Political campaigns rely heavily on email and the internet to raise money and court voters. On August 11,
2022, the Federal Election Commission (FEC) approved an advisory opinion request (AOR) from Google
permitting the company to establish a pilot program enabling Gmail users to provide feedback affecting
which political fundraising messages they receive rather than relying on the service’s existing spam
filters. The AOR is one component of a much larger debate in Congress and beyond about the role that
social media platforms and technology companies play in American politics. This CRS Insight provides
congressional readers with brief background on the AOR and related campaign finance policy issues.
Other CRS products linked herein discuss policy and legal topics that are beyond the scope of this Insight.
What are Advisory Opinions?
The Federal Election Campaign Act (FECA) establishes the advisory opinion (AO) process to enable
those regulated by campaign finance law or FEC regulations to ask whether specific, planned conduct is
permissible. Questions may not be hypothetical.
FECA requires votes from a majority of at least four commissioners to approve an AO. An AO is not
issued if the commission deadlocks (a vote of fewer than four commissioners reaching agreement one
way or another). Members of Congress, in their official or candidate capacities, frequently make AO
requests, provide comments, or both. AOs can have long-term ramifications because FECA permits other
entities operating under “indistinguishable” circumstances as the requester to rely on AO guidance.
Campaign Finance Policy Background
Candidates, parties, and political action committees (PACs) generally have wide leeway to make their
own strategic decisions, including about fundraising tactics, provided that they are consistent with
relevant law and regulation. Campaign finance law generally does not regulate campaign conduct, but
instead specifies how funds affecting campaigns may be raised and spent. In particular, FECA limits
contributions; requires identifying information (“disclaimers”) on communications that raise funds or call
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for election or defeat of candidates (or, in some cases, mention candidates); and requires regulated entities
to publicly report (“disclose”) their financial activity. Some disclaimer requirements, such as for online
advertising, vary by media type. Separate requirements, in telecommunications law, also apply to some
campaign advertising.
Just as political committees are generally free—at least under campaign finance law—to make their own
operational decisions, FECA generally does not place unique requirements on specific industries, such as
email providers or technology companies. FECA bans corporations and unions from making federal
campaign contributions from their general treasury funds.
What Google Requested
Google primarily sought guidance on whether its planned pilot program would constitute a prohibited in-
kind corporate contribution under FECA. Specifically, Google asked:
May Google launch a free and non-partisan pilot program to test Gmail design features, which will
be open to authorized candidate committees, political party committees, and leadership political
action committees, where spam detection as applied to messages from a pilot participant will rely
predominantly on direct feedback from the recipient rather than standard spam detection, and each
pilot participant will receive information regarding the rate of emails delivered into Gmail users’
inboxes, as long as the pilot participant is in compliance with the program’s requirements?
The AOR generated more than 2,600 public comments. Many comments appeared to be from private
citizens, expressed general opposition to the proposal and frustration with unwanted political email, and
contained little policy discussion.
Discussion
The Google request focused on the relatively narrow question of whether the pilot program would
constitute a prohibited in-kind contribution. At its August 11 meeting, the FEC considered two draft AOs.
(It is common for the commission to consider alternative drafts.) The commission approved Draft A, with
pending technical changes, by a 4-1 vote. One commissioner abstained.
Despite general similarities, the two drafts differed in their analysis of whether Google’s proposed pilot
would or would not constitute a prohibited in-kind contribution. In brief, Draft A determined that it would
not because Google would offer the pilot in the normal course of its business operations. By contrast,
Draft B determined that the pilot would constitute a prohibited in-kind contribution because the program
would be a departure from normal business operations and would be available only to some users. The
drafts generated substantial discussion among commissioners and several questions for Google’s counsel
about whether the motivation for or administration of the pilot would provide unique benefits to certain
political committees compared with other bulk senders.
Some accounts have characterized the Google AOR as an attempt to respond to criticism from some
Members of Congress that Google’s email filters allegedly advantage one party over another. One
scholarly study, which some Members of Congress have raised in questioning Google, and which the
company reportedly refutes, found that spam-filtering algorithms for the Gmail, Outlook, and Yahoo
email services “treat the left and the right ... differently. Gmail leans toward the left as it marks a higher
percentage of the right emails as spam. Outlook and Yahoo, on the other hand, lean towards the right.”
Those findings were based on selected data from the 2020 election cycle. One of the study’s authors told
the Washington Post that “while the paper ‘demonstrates that there is a bias’ under certain circumstances
across services, it ‘has nothing in it that demonstrates that someone is deliberately trying to turn the
elections.’”

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Overall, the Google AOR is one element in ongoing congressional attention to the role technology—and
technology companies—play in the political process. Much of that debate is not directly related to
campaign finance policy, and potentially is more relevant for several other policy and legal areas, ranging
from social media companies’ use of algorithms generally, to antitrust, First Amendment, and
telecommunications. At least two recently introduced bills, H.R. 8160 and S. 4409, propose limits on
algorithmic filtering for campaign emails. Those bills cite FECA to define “political campaign,” but do
not otherwise appear to propose amendments to campaign finance law. Other bills (H.R. 3611; H.R. 6796;
S. 1896) do not specifically apply to fundraising, but would require additional transparency about online
platforms’ algorithm use and would require FEC participation in an interagency body examining
algorithms and online platforms.

Author Information

R. Sam Garrett

Specialist in American National Government

Disclaimer
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to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
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