The prospect of billions of dollars moving opaquely through the Internet and aimed at influencing our votes can sound ominous, especially as the Web is increasingly a tool that Americans use to communicate both personally and politically. In the broadest sense, allowing this flood of ad money feels contrary to our usual efforts to ensure that we know who is spending large sums to try to influence the makeup and actions of our government.
But the world of campaign finance regulation has always been fuzzy and complex, especially as we try to balance the values of fairness and transparency with the equally fundamental principle of freedom of expression. These new advertising tools, from email and websites to Facebook and YouTube and more, clearly offer both opportunities and challenges in an already fraught landscape.
The legal framework that defines when political spending should be disclosed — and perhaps even restricted — have centered on the subject of the message and the scope of the spending. Messages that advocate directly for or against federal candidates, and the use of significant amounts of money to present those messages, have been triggers for disclosure and sometimes limits. But these rules were developed in a communications environment where my spending on a 30-second TV or radio ad prevented you from using that same time; a big imbalance in spending could mean some messages were everywhere while others remained unheard.
The Internet might be different. My use doesn’t obviously limit yours, and the cost of participating is a lot lower than the cost of broadcast ads. Early on, the Federal Election Commission decided to let this new world develop further and watch to see whether the broader, cheaper communication proved beneficial. If you were an electoral organization building a presence on the Web (such as a campaign or party, etc.) or if you paid to place a campaign message on someone else’s platform (such as their website) the disclosure and other rules applied. Candidates and others who pay for online ads that advocate for them still must disclose their spending.
If, on the other hand, you did something that was effectively free (like writing a blog post or posting a Web video without paying a fee), there was nothing to disclose. Does this limited approach still make sense? I’m not sure I know the answer, but I know the questions to ask when I try to decide:
First, are the channels of communication on the Internet still truly open and mostly costless?
Second, are groups able to game the system by now doing things that were previously regulated in ways that avoid transparency or regulation, when nothing else about the activity has changed?
Regarding the second question, for example, we’ve seen campaigns post video on their websites that is free to be lifted by supposedly unconnected super PACs and other outside groups and used in their own advertising. Elsewhere, polling results that would normally be closely guarded have been posted in unlinked or otherwise obscure areas where allies can “discover” and use them. These kinds of things blur the lines between candidates who can only accept limited contributions and supposedly independent outside groups that raise many multiples more. If the technology helps groups circumvent important elements of the existing law, regulatory changes are called for.
There are many paths to a campaign finance overhaul, one of which would be to “devalue” the money by making the tools for conducting politics less expensive.
If the cost of communicating with voters really is dramatically lower via the Internet and can’t be overwhelmed by big spending, then restrictions there might be less critical. Meanwhile, as the focus shifts away from expensive broadcast media, it might matter less that a small group of wealthy individuals and institutions could financially dominate that particular medium. When big dollars from a few donors are no better than small amounts aggregated from lots of people, democracy benefits.
The Internet can help with this change, but we need to be sure it’s really moving in that direction. These questions and others require careful monitoring as the technology develops.