The FEC Is Basically Useless

The commission won’t do anything about Facebook’s political ad problem, so Congress needs to step up.

Then–FEC Commissioner Ann Ravel during a Rules and Administration Committee business meeting in 2013.

Douglas Graham/CQ Roll Call via AP

On Monday, Facebook said that roughly 10 million people saw at least one of the 3,000 political ads that the Internet Research Agency—a group backed by the Russian government—spent $100,000 on over the course of two years. That’s not a lot of money for an awful lot of eyes, which means that the Russians got a real bang for their buck.

Facebook handed all 3,000 of those ads over to Congress on Monday, four weeks before the company is scheduled to appear in a public hearing in front of the Senate Intelligence Committee. Executives from Facebook will be joined by their counterparts from both Twitter and Google to discuss exactly how foreign actors, like the Kremlin, used their platforms, including their advertising tools, to meddle with the 2016 U.S. election and provoke political unrest in the country.

Facebook also outlined a number of reforms that it hopes will limit malicious actors’ ability to use its tools to influence elections. The company says it will start to show users all the ads that a particular Facebook page buys, no matter whom they are targeted to. Facebook will also start to “pay more attention” to the context in which ads are bought (like, say, during a presidential election cycle) and will add 1,000 more people to its ad review team. Additionally, Facebook said it will require advertisers that run ads pertaining to a U.S. federal election to “confirm the business or organization they represent before they can buy ads.”

All of those changes are good, but they’re also unlikely to prevent someone in the U.S. or abroad from manipulating Facebook to sway voters. There are some regulatory options here that, if passed, could force even more transparency from Facebook about political ads that run on the platform—but unfortunately, none of them are great.

The next logical step would be to take this to the Federal Election Commission, the regulatory agency tasked with enforcing campaign finance laws. But that’s unlikely to happen. Some commissioners at the FEC aren’t keen on more regulation, and there are frustrating limits to what the agency defines as a political ad.

Right now, it’s illegal for foreign entities to purchase political ads in the U.S. Candidates or groups advocating for candidates are also legally required to disclose the details about any ads they place to the FEC. Radio and television ads have to say where they came from—hence all of the “I approved this message” statements. But online campaign ads aren’t currently required to note who sponsored them. Facebook’s plan to reveal the name of the page that bought each ad is useful, but we need more information than just the name of the group, especially considering how pages on Facebook representing a campaign advocacy group often take generic names that don’t obviously indicate which candidate or party they actually back.

It sounds like a fairly easy fix, right? But when then–FEC Commissioner Ann Ravel proposed updated online political ad laws in 2014, a fellow commissioner accused her of trying to censor the internet, and she subsequently received death threats and misogynist messages from internet trolls.

Now, another FEC commissioner, Ellen Weintraub, is proposing that the agency update its online election ad laws. But, as Weintraub said on a recent MSNBC interview, the FEC hasn’t “done any rulemaking on internet political activities since 2006.” (For context, in 2006, Facebook was still only available to students.) In September, the FEC unanimously voted to open a public comment period about online advertising purchased by foreign actors, which ostensibly could lead to a rule-making, but don’t hold your breath. That’s because, by design, the FEC is made up of three Republicans and three Democrats, meaning it’s perpetually deadlocked. The commission has become adept at accomplishing very, very little.

This isn’t the first time the FEC has whiffed on the opportunity to take action against foreign actors trying to influence a U.S. election. Take what happened in 2012, when there was a California ballot measure that would require porn actors to wear a condom in sex scenes. “There was a significant amount of foreign money that came into that election,” said Ravel. “And there was a request to the FEC to take enforcement action to the donors of that campaign.” Firms based in Cyprus and Luxembourg poured hundreds of thousands of dollars into fighting the ballot measure. But the Republicans on the commission argued that ballot measures weren’t necessarily campaigns, and therefore were out of the agency’s purview.

The strict definition of what constitutes an ad comes with some pretty major loopholes. First of all, the FEC doesn’t regulate issue-based ads—only ads that are directly for or against a particular candidate and ads that refer to a candidate right before an election that run on TV and radio. So the ads that Kremlin-linked groups bought that were designed to stoke anger about the Black Lives Matter movement, for example, would not have fallen under the purview of the FEC.

Furthermore, Ravel says that the FEC won’t regulate posts for which the platform itself has not been paid. Say a shady Russian troll farm just made a post on Facebook for free, but then pays to promote the post. Because Facebook is only getting paid for that boost—not for the content itself—that technically isn’t an ad. Similarly, Ravel explained, a group may pay to make a YouTube video promoting a candidate, but since it doesn’t pay YouTube, that video wouldn’t fall under the purview of the FEC. Which is exactly what happened in the 2012 election, when a dark money group created two attack ads opposing President Obama’s policies on coal that were posted on YouTube. The group never declared its spending on the videos, and Ravel and the other Democrats at the agency argued that the ads should have been shared with the FEC. But the Republicans disagreed, since the video makers didn’t pay YouTube to release anything. Stuck in a deadlock, the FEC didn’t further investigate.

Here’s an example of one of the videos.

Those limitations aside, the FEC can certainly take action if an ad that is paid for by foreign money on Facebook is advocating for or against a campaign. “The foreign money paid for or against a candidate in an election is absolutely illegal,” said Ravel. And that means that the ads that Russia reportedly bought on Facebook that directly promoted Trump, Jill Stein, and Bernie Sanders might become a thorn for the company.

Though FEC regulation of online campaign ads is the right thing to do, any steps the commission takes to regulate probably wouldn’t completely stop Russian government–linked groups from using Facebook to manipulate and microtarget U.S. voters. To do that, we need congressional action, too.

Democratic Sens. Mark Warner and Amy Klobuchar are planning to introduce a bill that would go a long way toward making online campaign ads more accountable. According to a letter from the senators circulating on Capitol Hill, their legislation would require digital platforms with more than 1 million users to maintain a public record of electioneering communications purchased by any entity that spends more than $10,000 on online political ads. Companies would have to keep track of the dates and times the ads were published, the targeted audience, how many times the ads were viewed, the contact information for the groups that purchased the ads, and how much was paid to the online platform.

While those disclosures would go a long way, the $10,000 mark might be too high. After all, Facebook disclosed on Monday that of the 3,000 Russian-linked ads sent to Congress, 50 percent cost the advertiser less than $3, and for 99 percent of the ads, less than $1,000 was shelled out. Still, those ads—which cost $100,000 total—reached 10 million people.

Warner and Klobuchar are on the right track. But it’s worth remembering that all members of Congress who would vote on such a proposal probably rely themselves on data-driven advertising on online platforms in order to get elected. So long as that’s the case, passing any sort of law that would limit how they’re allowed to use those advertising tools to rake in voters is going to be a hard sell.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, follow us on Twitter and sign up for our weekly newsletter.