Sec. 6103. Findings
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Congress makes the following findings: In 2002, the Bipartisan Campaign Reform Act of 2002 ( Public Law 107–155 ) became law, establishing disclosure requirements for political advertisements distributed from a television or radio broadcast station or provider of cable or satellite television. In 2003, the Supreme Court upheld regulations on electioneering communications established under the Act, noting that such requirements provide the electorate with information and insure that the voters are fully informed about the person or group who is speaking .
The Court reaffirmed this conclusion in 2010 by an 8–1 vote. In its 2006 rulemaking, the Federal Election Commission, the independent Federal agency charged with protecting the integrity of the Federal campaign finance process, noted that 18 percent of all Americans cited the internet as their leading source of news about the 2004 Presidential election. By contrast, Gallup and the Knight Foundation found in 2020 that the majority of Americans, 58 percent, got most of their news about elections online.
According to studies from AdImpact and Borrell Associates, in 2020, an estimated $1,700,000,000 was spent on online political advertising, more than 10 times the amount spent in 2012. In order to enhance transparency of all political advertisement funding, it is prudent to extend to online internet platforms the same types of political advertisement disclosure requirements applicable to broadcast television and radio stations, and providers of cable and satellite television. Effective and complete transparency for voters must include information about the true and original source of money given, transferred, and spent on political advertisements made online.
Requiring the disclosure of this information is a necessary and narrowly tailored means to inform the voting public of who is behind digital advertising disseminated to influence their votes and to enable the Federal Election Commission and the Department of Justice to detect and prosecute illegal foreign spending on local, State, and Federal elections and other campaign finance violations. Paid advertising on large online platforms is different from advertising placed on other common media in terms of the comparatively low cost of reaching large numbers of people, the availability of sophisticated microtargeting, and the ease with which online advertisers, particularly those located outside the United States, can evade disclosure requirements.
Requiring large online platforms to maintain public files of information about the online political ads they disseminate is the best and least restrictive means to ensure the voting public has complete information about who is trying to influence their votes and to aid enforcement of other laws, including the prohibition on foreign money in domestic campaigns. The reach of a few large internet platforms—larger than any broadcast, satellite, or cable provider—has greatly facilitated the scope and effectiveness of disinformation campaigns.
For instance, the largest platform has over 247,000,000 American users—over 153,000,000 of them on a daily basis. By contrast, the largest cable television provider has 16,142,000 subscribers, while the largest satellite television provider has 13,300,000 subscribers. And the most-watched television broadcast in United States history had 118,000,000 viewers. The public nature of broadcast television, radio, and satellite ensures a level of publicity for any political advertisement.
These communications are accessible to the press, fact-checkers, and political opponents. This creates strong disincentives for a candidate to disseminate materially false, inflammatory, or contradictory messages to the public. Social media platforms, in contrast, can target portions of the electorate with direct, ephemeral advertisements often on the basis of private information the platform has on individuals, enabling political advertisements that are contradictory, racially or socially inflammatory, or materially false.
Large social media platforms are the only entities in possession of certain key data related to paid online ads, including the exact audience targeted by those ads and their number of impressions. Such information, which cannot be reliably disclosed by the purchasers of ads, is extremely useful for informing the electorate, guarding against corruption, and aiding in the enforcement of existing campaign finance regulations. Paid advertisements on social media platforms have served as critical tools for foreign online influence campaigns—even those that rely on large amounts of unpaid content—because such ads allow foreign actors to test the effectiveness of different messages, expose their messages to audiences who have not sought out such content, and recruit audiences for future campaigns and posts.
In a 2019 Senate Select Committee on Intelligence report on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election, Volume II: Russia’s Use of Social Media with Additional Views, the Committee recommended that Congress examine legislative approaches to ensuring Americans know the sources of online political advertisements. The Federal Election Campaign Act of 1971 requires political advertisements on television, radio and satellite to disclose the sponsor of the advertisement.
The same requirements should apply online. This will also help to ensure that the IRA or any similarly situated actors cannot use paid advertisements for purposes of foreign interference. . On March 16, 2021, the Office of the Director of National Intelligence released the declassified Intelligence Community assessment of foreign threats to the 2020 U.S. Federal elections. The declassified report found: Throughout the election cycle, Russia’s online influence actors sought to affect US public perceptions of the candidates, as well as advance Moscow’s longstanding goals of undermining confidence in US election processes and increasing sociopolitical divisions among the American people. .
The report also determined that Iran sought to influence the election by creating and amplifying social media content that criticized [candidates] . According to a Wall Street Journal report in April 2021, voluntary ad libraries operated by major platforms rely on foreign governments to self-report political ad purchases. These ad buys, including those diminishing major human rights violations like the Uighur genocide, are under-reported by foreign government purchasers, with no substantial oversight or repercussions from the platforms.
Multiple reports have indicated that online ads have become a key vector for strategic influence by the People’s Republic of China. An April 2021 Wall Street Journal report noted that the Chinese government and Chinese State-owned enterprises are major purchasers of ads on the U.S.’s largest social media platform, including to advance Chinese propaganda. Large online platforms have made changes to their policies intended to make it harder for foreign actors to purchase political ads.
However, these private actions have not been taken by all platforms, have not been reliably enforced, and are subject to immediate change at the discretion of the platforms. The Federal Election Commission's current regulations on political advertisements do not provide sufficient transparency to uphold the public’s right to be fully informed about political advertisements made online.
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- Pub. L. 107-155
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Sec. 6103
Findings
Pub. L.Pub. L. 107-155
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