The Federal Election Commission (FEC) this week issued a Notice of Proposed Rulemaking, asking for public comment on proposals for requiring “disclaimers” on online ads and fundraising. Under each of two similar proposals, paid Internet ads that expressly advocate for candidates or that solicit political donations must state who paid for the ad and whether it was authorized by a candidate. The rules would impact websites, blast emails, and ads paid for by a political committee, regardless of their content.

The FEC rulemaking responds to mounting concerns about the influence of Russian-linked social media activity during the 2016 presidential election, as well as years of ambiguity about when and how the agency’s rules apply to emerging platforms and technology.

Which Ads Require Political Disclaimers Under Current Law?

Under current law, the FEC requires disclaimers on three types of advertisements:

• Communications by Political Committees: Disclaimers are required on all “public communications” paid for by a registered political committee, as well as the committee’s own website and blast emails sent to more than 500 recipients.
• Express Advocacy by Any Person: Regardless of the ad’s sponsor, “public communications” must include a disclaimer if they expressly advocate for or against a candidate.
• Solicitations by Any Person: Regardless of the ad’s sponsor, “public communications” that solicit a contribution to a registered political committee must include a disclaimer.

A “public communication” includes Internet communications only when one person pays a fee to place the communication on another person’s website. The law does not require disclaimers on communications that do not involve a fee, such as unpromoted or unsponsored tweets, blogs, or Facebook posts.

The FEC has also concluded that certain communications are exempt from disclaimer requirements for practical reasons, such as for SMS text messages and Google’s text ads.

Which New Types of Ads May Be Covered?

The regulations proposed this week do not significantly alter the types of advertisements that would require political disclaimers; however, they would limit the circumstances under which an Internet ad could omit a disclaimer due to size constraints, which would have the effect of expanding the universe of Internet ads that would carry disclaimers.

What Must a Disclaimer Say?

Current law requires disclaimers to include the name of the person who paid for the ad, the person’s telephone number, address, or URL, and a statement indicating whether the communication was authorized by any candidate or a candidate’s committee, where applicable. This would remain unchanged, and Internet ads would include the same information when space permits.

However, the proposed rules would add specificity to how Internet disclaimers may be displayed. One proposal would apply the current requirements for the size, duration, and appearance of television, radio, and print disclaimers to their Internet-based analogs. For example, an ad on a video streaming platform would require a disclaimer to appear in the same way as disclaimers on television ads.

In the event an ad is character-limited, or too short or small to include the full disclaimer, both proposals allow for an “adapted disclaimer”. The proposals do not specify what format this abbreviated disclaimer must take but would permit the use of a hover-over, link, icon, or other feature that would lead the viewer to the full disclaimer.

Next Steps

The FEC has asked for written comments on its proposals and has scheduled a hearing for late June. After the hearing, the Commission will work to find consensus on a final rule, a process which would require unanimity among the four sitting Commissioners, unless the two vacant seats on the Commission are filled in the coming months. Given the timing of the hearing and the challenges of working out an agreement on final language, it is unlikely that final rules will take effect in time for the mid-term elections. But if adopted, they will certainly have an effect on the 2020 elections.

Venable’s Political Law Group is closely monitoring this rulemaking and can assist clients in navigating the rules governing Internet advertising and fundraising.