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A New Way to Safeguard America Against Threats to Our Elections

November 1, 2017, The Hill Op-Ed

This week, Congress is holding hearings with Google, Facebook and Twitter about social media influence in the 2016 election. These hearings should help clarify how foreign agents infiltrated our elections. The hearings should also shed light on the fact that our outdated election laws allowed this infiltration to go undetected and undeterred.

We learned after the election that the Russian government paid for thousands of political ads on Facebook, which reached 126 million users. Bipartisan legislation introduced this month would take meaningful steps to safeguard the security and sovereignty of our elections against foreign influence. The Honest Ads Act would shine light on precisely the kinds of ads Russia used in the last couple years, informing the public about their sources and content.

We have known for some time that political activity is increasingly moving online. An estimated $1.4 billion was spent on digital ads in the 2016 elections. But the federal agency tasked with safeguarding our elections and writing rules, the Federal Election Commission, has been asleep at the wheel, often leaving voters in the dark about who is paying for digital advertising.

For example, the FEC has failed to provide guidance as to how disclaimer rules (a notice of who paid for the advertising), which were written many years ago with only broadcast and print media in mind, apply to modern digital communications. The FEC’s last rulemaking on internet ads was in 2006, when only 18 percent of all Americans cited the internet as their leading source of political news, according to the Pew Research Center. Today, Facebook has 210 million users, which is 10 times as large as the subscriber base of the largest cable or satellite provider.

The Honest Ads Act, which stands for “holding online national electioneering ads to the same test,” would ensure that online political ads are subject to the same transparency requirements that apply to similar ads run on any other medium. This would close several loopholes that Russia exploited. The bill would clarify that online ads that advocate for or against candidates, or that talk about candidates shortly before an election, are subject to “disclaimer” requirements, meaning a statement that is included within a political ad declaring the name of the group that paid for it.

Voters would certainly assess a political ad differently if they knew that Russia was financing it. Requiring disclaimers on online political ads helps journalists, watchdog groups, and law enforcement officials to uncover the Russian influence effort. The Honest Ads Act also would also require major digital platforms, such as Google, Facebook and Twitter, which host ads to keep a publicly available “political ad file” of campaign advertising, including the content of the ads and who paid for them. Television and radio broadcasters are already subject to similar requirements.

Transparency measures provided by the Honest Ads Act would help improve awareness of the messages being used to influence voters and public opinion, and allow the press and public to respond to covert propaganda. Many of the Russian-sponsored ads run in the 2016 election were illegal. Foreign nationals, including foreign governments, are prohibited from spending any money in connection with U.S. elections. But unless we know the source of ads, they are difficult to regulate, and it is difficult to prevent foreign governments and front groups from breaking the law.

The public has no reason to expect the social media giants to adequately self-police. Facebook for example, has not explained how it will define or implement new policies that would prevent the circulation of illegal foreign political ads on its platform. They had more than enough time to work with the FEC on developing practical disclaimer rules, but they actively sought to block regulation. That said, Twitter’s announcement that it will voluntarily take some steps to step up transparency shows a growing understanding of the dangers we face.

The public has a powerful and compelling interest in knowing who is trying to influence their vote on the platforms they turn to for information about elections. This is a time for political courage and for Republicans to pick country over party. We have every reason to think Russia — or Iran, North Korea or any other foreign adversary with an interest in disrupting our elections — will intervene in our elections in the 2018 and beyond. As a starting point, we must provide the public with basic information of the nature of political ads they see online. The accepted legitimacy of our election process is the foundation of our democracy. Threats to its legitimacy must be priority one for Congress.

Trevor Potter is president and founder of the Campaign Legal Center, a nonpartisan organization of election law and ethics experts. He is also senior adviser to the reform group Issue One and head of the political law practice at the Washington firm Caplin & Drysdale. He previously served as the former Republican chairman of the U.S. Federal Election Commission.

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