Big websites like Facebook, Drudge Report, Breitbart News, Google and the New York Times would face substantial punishment if they don't make "reasonable efforts" to block foreigners from posting political ads under new election legislation pushed by Sen. John McCain and two Democrats.
The "Honest Ads Act," co-sponsored by Democrats Virginia Sen. Mark Warner and Minnesota Sen. Amy Klobuchar, would put new legal requirements and punishments on websites with 50 million unique monthly readers that take a tiny $500 or more in political ads from one advertiser.
The act, which already has a House companion bill, is aimed at forcing websites to join in the fight against foreign influence of elections. It is part of a broader reaction to reports Russians spent thousands on Facebook to influence voters in the 2016 election.
The legislation would amend the Federal Election Commission Act to include websites and new technology used by campaigns.
It also demands that news and social media platforms and websites make "reasonable efforts" to see that political ads are not "directly or indirectly" purchased by a foreign national.
While heralded by liberal groups angered over the Facebook reports, libertarian and conservative critics claim it amounts to regulating the internet and will stifle free speech.
The Center or Competitive Politics, for example, "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."
Center President David Keating said the $500 threshold could prompt websites to set minimum spending on ads much higher to pay for the new manpower they'd need to police ads. And that, he said, could kill small grassroots advocacy.
He also questioned the vague language that ads can't be "purchased by a foreign national, directly or indirectly." He said, "We don't know what that means, but we would not be surprised to see groups opposed to free speech claim that such ads can't be purchased by any publicly traded company as such companies have many, but an unknown number, of foreign owners."
The legislation would be a major shift in how the FEC regulates campaign spending and advertising. Currently, it does not hold advertising platforms, radio stations, print publications, or online websites legally responsible or liable for the legal compliance of the ads placed. The sponsors of the ads have been solely responsible.
But the new legislation, according to experts, would:
-- Require websites and other platforms to maintain files of the names and information about the sponsors, copies of the ads, information about target audiences, and similar information for all ads about any important political subject for for years or face enforcement and punishment by the FEC.
- Require platforms to exercise "reasonable efforts" to prevent any foreign advertiser from buying/placing politically-themed ads on their platforms or be subjected to enforcement and punishment by the FEC.
Elections lawyer Eric Wang, with Wiley Rein in Washington explained to Secrets the concerns many have with the legislation.
First, he said, it is way too broad. "The Klobuchar-Warner-McCain bill purports to address a legitimate problem, but its means are misguided. Instead of specifically regulating Internet ads by foreign interests, the bill would regulate all speakers – the vast majority of whom are Americans. By the bill sponsors' own accounts, less than 1/100 of 1 percent of the online political spending last year was by Russians, but the bill would impose new regulatory burdens on the other 99.99 percent of American speakers. A better legislative approach here would be to update the Foreign Agents Registration Act (FARA), a law which only regulates foreign interests, and which currently has some loopholes under which the Russian social media ads may not have been covered."
He also called "unprecedented" the effort to make advertising platforms -- not just those who take out ads -- responsible for enforcing FEC laws. "The bill's imposition of liability on Internet platforms also is unprecedented, especially for ads that cost as little as $500. Online platforms may decide that it is not worth their while to sell $500 ads if they could be potentially liable for thousands of dollars in penalties for recordkeeping mistakes, or letting prohibited foreign advertisers slip through. Traditionally, entities prohibited from sponsoring political ads concerning American elections have been solely liable for violations. The advertising platforms (regardless of whether they are traditional or Internet media) have not been liable for such violations," he said.
27 groups & experts sent a letter to Senators in support of Honest Ads Act. Online election ads should be disclosed. https://t.co/k52sqZo9QP pic.twitter.com/gm68ivzdPY— Tyler Creighton (@tylercreighton) October 20, 2017
Some 27 groups and legal experts, however, backed the legislation in a letter to the sponsors. In it they said, "Facebook, Google, Twitter and other platforms that were used by the Russians have a critical role to play in solving this problem. These platforms were used to distribute fake and misleading political information to the American people. They need to recognize their corporate responsibility to play a lead role in exposing and, where possible, preventing these activities in the future."
Paul Bedard, the Washington Examiner's "Washington Secrets" columnist, can be contacted at email@example.com