Should the FPPC Regulate Tweeters, Facebookers?
By Steve Maviglio
Special to Calbuzz
In the Age of the Internet, when campaigns, advocates, consultants and engaged citizens are using all forms of social media — Twitter, Facebook, YouTube, Gmail Buzz, etc. — to communicate about politics, the Fair Political Practices Commission is struggling to figure out what in all that constitutes political communication that ought to be regulated — like paid advertising — and what is purely a function of free speech.
It’s a fair question.
Last week, I testified (and Tweeted) before the FPPC’s Subcommittee examining electronic communication in political campaigns as part of a panel of political consultants (also at the table was Julia Rosen, the Courage Campaign’s Online Political Directorm and Bryan Merica from ID Media and Fox & Hounds Daily). We were followed by Kim Alexander of the California Voter Foundation, Derek Cressman of Common Cause, Tiffany Mok of the ACLU and Professor Barbara O’Connor, Sacramento State University.
The subcommittee wanted to hear from us if it should develop, in the words of Chairman Ross Johnson, “appropriate responses to new political realities.”
My advice was straightforward: do no harm. Don’t regulate independent bloggers. Don’t do anything that will stunt the growth of the Internet to attract and involve voters. But do provide clear guidelines for disclosure if there’s campaign money involved. And while you’re at it, provide clarity on the advice campaigns are getting from the commission, and conform to Federal Election Commission requirements.
Halfway through my testimony — where I was trying to detail the multiple changes on Facebook that would make it difficult for the FPPC to mandate where disclosure requirements might be posted — I looked up and saw all three commissioner’s with “what the hell are you talking about” faces. They were clearly baffled by technology they’d never dealt with personally (indeed, there was no wifi in the room, the hearing wasn’t webcast and the three commissioners admitted to never having used Twitter). That wasn’t encouraging.
But while three commissioners were dazed and confused by comments about pixels and Google Adwords, they seemed get what all the panelists were saying: proceed with caution. As commissioner Tim Hodson told me afterward, the hearing “underscored both the perils of addressing such wide open and ever changing area and the need to ensure minimal disclosure.”
Hodson and his fellow commissioners are picking up on FPPC’s decade-long review of political campaign activity on the web. Back in the stone age of internet campaigning, Assemblyman Keith Olberg penned AB 2720, which created a Bipartisan Commission on Internet Political Practices. The Commission’s job was to determine if and how web-based communication could confirm to the mother of California’s campaign law, the oft-amended Political Reform Act, which was authored in 1974, well before Al Gore invented the Internet.
After toiling for a year, the Internet Commission reported “we do not think it would be wise or necessary to adopt new laws or a new administrative vehicle specifically aimed at limiting or regulating the use of the Internet by political actor.”
The December 2003 report also presciently warned of regulating ever-changing web campaign technology:
When government attempts to regulate the use of technology, what we do not know can indeed hurt us. The speed of technological change and the ability of practitioners to adapt to new rules make regulatory efforts in these areas difficult. Swift changes can make old rules inoperable or inappropriate.
Technological changes that affect how hyperlinks are generated, how content from one Web site is framed by another, how online advertising is delivered to users, and how lists for unsolicited email campaigns are constructed, for example, could all change the meaning and the impact of regulations written prior to these innovations.
And things did change. Twitter, Facebook, viral YouTube videos, and Google email blasts all have become de rigueur elements of modern campaigning. First Democrats Howard Dean and then Barack Obama, set the pace for developing innovative electronic communications. In January, Scott Brown dumped more than 10 percent of his advertising budget in online advertising, and credited it, in part, for his win.
This may be just the tip of the iceberg, as campaigns get smarter about microtargeting on the web. A recent study by Tulchin Research found that 57 percent of Californians access political news and information via Facebook, MySpace, and Twitter. Some 40 percent of social media users are following or supporting candidates for office via Facebook and Twitter. One in five voters use their smart phones to get political news and information.
FPPC Chairman Ross Johnson seems to be hinting that he’s not inclined to do anything to hamper this rapid growth electronic communication. And that’ s good.
“The Commission is not interested in requiring individuals to report as committees when they are merely exercising their First Amendment rights, but if this is paid political speech, then perhaps tighter regulation requiring greater disclosure and transparency is in order,” he said in a press release before the hearing
That’s the path I’d expect the FPPC to go: requiring greater disclosure, somewhere, somehow on all campaign-paid electronic communication. That’s not as easy as it sounds, though, and the commission has its work cut out for it to make that regulation work.
Later this year the subcommittee will present its findings to the full Commission for consideration of whether new rules are necessary to require the disclosure of who is behind electronic messages advocating for or against the election of California’s state and local candidates or ballot measures.
These changes could require the adoption of regulations by the Commission, or entirely new state laws, which must be adopted as a bill by the Legislature, or as a proposition by a vote of the people.
The Commission is right to investigate this new landscape as long as it first does no damage.
(The FPPC will hold another subcommittee hearing from 9 a.m. to 1 p.m. , March 24 at the University of Southern California Law School, Ackerman Courtroom, Room 107, located at 699 Exposition Boulevard, Los Angeles. Full information can be found here.)
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