The news that a Russian company was behind 3,000 politically themed Facebook ads that appeared in the United States during the 2016 campaign has spurred calls for investigations and demands for better regulation of social media advertising.
Here was Sen. Mark R. Warner (Va.), the ranking Democrat on the Senate Intelligence Committee, speaking Thursday at a national security conference in Washington:
“Even with the craziness of unlimited campaign contributions flowing into our campaigns, Americans can still find out what content is being used on TV advertising. … You may not be able to find completely the source. … But on social media, there’s no such requirements. So we may need legislation. I actually think the social media companies would not oppose it, because Americans, particularly when it comes to elections, ought to be able to know if there is foreign sponsored content coming into their electoral process.”
Did the Russian company in fact benefit from a lack of regulation of social media ads? Were its ad purchases illegal? Let's start with Warner's suggestion that there are not laws governing political ads on social media.
Do campaigns and groups have to disclose spending on online political ads?
Broadly, yes. The Federal Election Campaign Act requires candidate committees, party committees and PACs to file periodic reports with the Federal Election Commission disclosing the money they spend, including funds used to buy online ads. Individuals or groups that make independent expenditures (which expressly advocate the election or defeat of a clearly identified candidate) must also regularly disclose their outlays to the FEC.
In 2006, the FEC updated its regulations to clarify that the law applies to paid advertisements that outside groups place on another person's website. “That's well established,” said Paul Ryan, vice president for policy and litigation at Common Cause. “It's been settled for more than a decade.”
What about that “Internet exemption” I keep hearing about?
In that same 2006 rulemaking, the FEC determined that content posted online for free, such as blogs, is off limits from regulation. So that means if you are posting political content on such social media platforms as Twitter and Facebook — rather than paying to run ads on those sites — you do not need to report that activity to the FEC.
The regulation “protects Internet activities by individuals in all forms, including emailing, linking, blogging, or hosting a website,” then-FEC Chairman Michael E. Toner said at the time.
In recent years, there have been calls by advocates to revisit the Internet regulation, an idea that has drawn fierce resistance from conservatives. (On Thursday, Ellen Weintraub, a Democratic appointee to the FEC, proposed again that the agency to update its rules on Internet communications disclaimers.)
Did the Russian company break election law by financing the ads, which Facebook traced back to a Russian “troll farm” with a history of pushing pro-Kremlin propaganda?
The law is clear that foreign nationals and foreign corporations are prohibited from making contributions or spending money to influence a federal, state or local election in the United States. The ban includes independent expenditures made in connection with an election.
But whether the Russian company broke the law by running ads on Facebook comes down to two big questions: What was in the content of the ads, and did a U.S. campaign assist the company in placing the ads.
If the Facebook ads were overtly political — that is to say, they advocated the election or defeat of a specific candidate — then they would violate the ban on foreign national spending, legal experts said.
But if they were vaguer appeals, it's less clear cut.
“There’s a lot of uncertainty,” said Richard L. Hasen, an election law expert at the University of California at Irvine. “If they had ads that just were making statements about immigration and gay marriage and there was no mention of a candidate,” they would not meet the FEC's definition of an independent expenditure, he said.
However, Russian-financed ads could have still run afoul of election law if they were placed on Facebook or targeted at certain voters in coordination with a campaign — one of the central questions of the ongoing Russia probes. In that scenario, the ads would not have to explicitly advocate for a candidate to be illegal.
Common Cause filed complaints Thursday with the FEC and Justice Department regarding the ads. “We think there’s reason to believe these ad buys were illegal, but we can't state that definitively,” Ryan said.
Wait, so what did the ads say?
So far, Facebook officials have declined to release the ads themselves, saying they are constrained by their data policy and federal law. But The Post reported Wednesday that a small portion of the ads directly named Republican nominee Donald Trump and Democrat Hillary Clinton.
In a blog post published late Wednesday, Facebook Chief Security Officer Alex Stamos wrote that the vast majority of the ads “didn’t specifically reference the US presidential election, voting or a particular candidate.” Rather, the ads touched on “divisive social and political messages” including gay rights, race, immigration and gun rights.
Does Facebook screen its advertisers to ensure they can legally run political ads?
Under the company's ad policies, advertisers are responsible for “understanding and complying with all applicable laws and regulations.”
“Failure to comply may result in a variety of consequences, including the cancellation of ads you have placed and termination of your account,” the policy says.
So what happens next?
Along with Thursday's Common Cause complaint, there is already a pending FEC complaint about possibly illegal Russian spending in the election that was filed in December by the watchdog groups Campaign for Accountability and Free Speech for People. Facebook’s revelations could be wrapped into the commission’s ongoing review of the existing complaint, which remains confidential until it is resolved.
“What's important about the FEC investigation is that despite all of the FEC's well-known problems, it is an independent bipartisan commission and it is not subject to interference by President Trump,” said Ron Fein, legal director at Free Speech for People. “This could be its finest hour.”
Toner, now a campaign finance lawyer at Wiley Rein, said that one challenge for the FEC could be determining the actual sponsor of the Facebook ads. But if there is clear evidence of foreign-financed ads on Facebook that advocated for the election or defeat of a specific candidate, that will be of interest to both regulators and investigators, he noted.
"This is really at the heart of the FEC’s jurisdiction and the special counsel’s jurisdiction," Toner said.
This post has been updated.
Ellen Nakashima contributed to this report.