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How the FPPC Should (and Shouldn’t) Meddle Online

Aug16

Calbuzz is generally not too keen on any regulatory movement, cause or organization, especially not one that’s intent on regulating us. But we have to say there are good reasons to extend – carefully — to the online world some of the disclosure requirements on political campaigns that now apply in the old media world of broadcast and print.

The trick is for California’s Fair Political Practices Commission to use a light touch so as not to kill the baby in the crib. Internet political communications still are in their infancy. You Tube, for example, by which so much of today’s online political messaging is conveyed, wasn’t even created until February 2005 and it didn’t really catch on in the political world until the 2008 cycle.

When the FPPC considers rule-making this fall, the fundamental principle should be this:

Keep the burden of disclosure on the candidates, campaigns and advocates without creating undue burdens on the media through which they choose to communicate. (Especially us.)

We agree with the FPPC report on this issue that:

When a committee or candidate engages in campaigning, the public should know that the communication is being paid for, regardless of the form that communication takes. In the current networked world, political communication by a regulated committee or candidate that occurs over the Internet is the functional equivalent of a broadcast ad, and an email is the functional equivalent of a mailer.

Fortunately, the FPPC and its staff have been cautious, open and deliberate as they approach the issue. They recognize, for example “that it is difficult to regulate a moving target. Innovation is not predictable and could be stifled by moving too quickly and regulating too strictly.”

Who’s paying for what: The FPPC report recognizes that you can’t require the same disclosure for a postage-stamp-sized web ad, a tweet or a Facebook message that you demand in a TV commercial. But you could require that a web ad or even the name of a tweeter or Facebooker  who’s pushing campaign communications should link to a page on which it’s disclosed who is behind the message so that an online reader understands where the message is coming from and who’s paying for it.

As the report noted:

Some paid advertising does not allow adequate room for disclaimers required by current law (e.g., some forms of electronic advertisements, twitter communication, etc.). In those cases, candidates and committees must provide information in ways that are practicable given the limitations of the medium (e.g., on the website that is accessed when one clicks on an ad; on pages providing information about the source of tweets; on appropriate places in social networking sites; through information that pops up when the mouse is rolled over word or phrase).

The Maryland Board of Elections recently passed new electronic media rules to provide just such flexibility. The Maryland regulations provide that if electronic media advertisements are too small (e.g., a micro bar, a button ad, a paid text advertisement that is 200 characters or less in length, or a small paid graphic or picture link) to contain an “authority line,” the ads will comply with the required disclosure of the political committee authorizing the message if the ad allows the viewer to click on the electronic media advertisement and the user is taken to a landing or home page that prominently displays the authority line information.

That makes sense to us.

Sock puppets and web whores: There’s one place where we’re not sure the FPPC goes far enough: requiring online communicators like bloggers to disclose if they are being paid by a campaign or political committee for more than the standard value of their advertising.

The rationale for not requiring disclosure by sock-puppet bloggers is this: 1) the FPPC does not want to dampen robust free speech on the internet and 2) payments to bloggers will be disclosed in the campaign or political committee’s expenditure reports.

We heartily agree with the principle of doing nothing to dampen free speech on the Internet,or anywhere else. But there is a big difference between Steve Poizner placing an ad on Calbuzz at the same rate that ad space is sold to anyone else, compared to Meg Whitman paying $15,000 a month to Green Faucet, the parent of the Red County blog, in order to secure a steady stream of favorable coverage and support masquerading as news coverage.

One is just a business transaction in which the web site selling advertising is not a paid mouthpiece for a campaign but instead a free agent on the Internet.

The other is little more than paid campaign communications. Blogs that are subsidized by a political committee – and who have thereby crossed the line into paid advocacy — ought to be required to make that clear to their readers.

Voluntary disclosure is not good enough. There are too many unscrupulous cheats out there and too many web whores. Moreover, it’s nothing for a campaign with big resources to set up a web site that looks like a neutral observer but which is, in reality, just an extension of the campaign.

At the very least, expenditure reports should be modified to specify  “internet communications,” and “online advertising.” Something along the lines in the FPPC report, which calls for:

…requiring that expenditure reports contain more detail of payments for activity on the Internet, including payments to bloggers, so that these payments can be more easily discerned. The brief description on the expenditure report would include the name of the recipient of payment for electronic communication, the purpose of the payment, and the name of website or other similar address where the communication (blog, tweet, Facebook page, etc.) appears.

For now, the report says:

We do not recommend requiring disclosure in blogs at this time because of our concern about stifling this robust and growing source of political discourse. We considered an alternative that would require bloggers compensated by a campaign committee to disclose on their blogs that they have material connections to a campaign. This was based, in part, on a recent Federal Trade Commission guideline requiring bloggers endorsing products to disclose their financial connections to the manufacturers of the product. Requiring disclosure of paid bloggers would also be analogous to Section 84511 of the PRA mandating disclosure of paid spokespersons in ballot measure ads.

We recommend instead that the Commission continue to monitor the development of activity on weblogs and assess whether disclosure through expenditure reports is sufficient to ensure voters know when a blogger is part of a political campaign and when she is acting as an interested citizen expressing her political views. If the Commission determines that the failure to require more disclosure of compensated political bloggers has undermined the right of the public to be informed about the course of political communication, the issue of appropriate regulation should be revisited.

Calbuzz prediction: unless the FPPC requires disclosure, plenty of unethical bloggers, tweeters and Facebookers will fail to tell readers who’s buying their loyalty.

In search of a bright line: There are some other issues still to be fleshed out. For example, who is to be considered “news media” and who is not.

The report says the Political Reform Act’s media exemption (on advocacy) “should be interpreted to include online media sources, whether or not they also participate in print or broadcast media.”

Importantly, however, blogging should not automatically be considered to trigger the media exemption unless the blog meets the standards for being considered part of the media. It is not necessary to expand the media exemption to include uncompensated bloggers who are unaffiliated with campaigns because they are protected by the exemption recommended above for volunteer uncompensated political communication.

This gets really tricky.

Relevant passages in the Political Reform Act define news media as “a regularly published newspaper, magazine or other periodical of general circulation which routinely carries news, articles and commentary of general interest” or “a federally regulated broadcast outlet” or certain kinds of newsletters or regularly published periodicals.

What does that make an online political news site like Calbuzz? Or partisan sites like Calitics or FlashReport? Or an aggregator like Rough & Tumble? All of which have or would gladly accept, advertising from candidates and political committees. What would you call Red County? Or California Majority Report? Do they “meet certain standards for being considered part of the media?” Or are they advocates for causes and candidates?

Click on the “eBay: Don’t Buy It Now” ad on this page and you get taken to California Working Families which tells you the page is “Paid for by California Working Families for Jerry Brown for Governor 2010, a Coalition of Public Employees, Firefighters, and Building Trades Organizations. I.D. # 1324632.  Not authorized by a candidate or a committee controlled by a candidate.” That’s the way it should work.

Likewise, if you click on “It’s Time for a New California” on the FlashReport home page, you get taken to Meg Whitman’s campaign home page which tells you at the bottom “Paid for by Meg Whitman For Governor 2010.” They probably ought to include their FPPC identification, but that’s a quibble.

But if you click on erichogue on Twitter, there’s no way to know that the screeching right-wing tweets from the conservative radio commentator just might be influenced by that $1,000 payment he got in the last reporting period from the Whitman campaign.

So what’s his Hogue News?  He’d like us to believe his site is “news media.” But he’s already proved he’s a for-rent mouth breather. Trouble is, the only people who know are those who’ve followed the arcane news about campaign finance or those who’ve read through Whitman’s expenditure reports and stumbled across the payment to him.

It won’t do for the FPPC to define “news media” in a way that includes only the dead and dying old media, as the current regulations do. But it also won’t do to ignore the fact that some online practitioners feel no compunction to level with the public about their status as paid advocates.

Plenty of free parking: Calbuzz would be happy to participate in further discussions with the FPPC on these issues. And if the FPPC would like to buy an ad on our site, they can find the rate card right here.


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There are 4 comments for this post

  1. avatar patwater says:

    Re: Voluntary Disclosure

    I think you’re construing the issue a bit too narrowly here. Suppose an overeager college student visits redstate.com. I don’t think we should care if the student sees the disclosure requirements on redstate.com itself; the issue is whether he/she figures out that redstate.com is being paid by the Whitman campaign for favorable coverage. We want the public to be “informed about the course of public communication”–how we get there is an open question.

    The FPPC line here has more merit that you give it credit. The internet offers an interesting test case for the libertarian argument for spontaneous regulation. Online discourse lacks many of market frictions (information assymetries, barriers to entry, etc.) that plague the argument IRL (in real life). Anyone (with a laptop and an internet connection) can correct any factual error or omission from anywhere. The blogosphere then acts as a filter for those reams of raw data and worms-eye data corrections, synthesizing and analyzing those data points to the lofty heights of metablogs like this one. Calbuzz (and its ilk) IS the spontaneously emerging consumer watchdog that libertarians talk about, servicing a market demand for thoughtful commentary on the degree of whorishness of other political news sources (among other things). Given how much the internet as already transformed our lives, I don’t think the FPPC is that crazy to wait and see if Calbuzz is an exemplar of a trend or just an outlying data point.

    Put back into your terms, I don’t think the alternative to regulated disclosure of funding sources is a magically informed public through voluntary disclosure; it’s a public informed through the internets trend toward ubiquitous information, which makes hiding in the shadows that foment political whoring and naked money power politics that much harder.

    • avatar pjhackenflack says:

      Not bad enough you’re young, smart, and have a bright future, patwater, now you gotta go and make all kinds of sense too…

    • avatar patwater says:

      Haha even a broken clock is right twice a day…

      Anyway thanks. It genuinely means a lot.

  2. avatar aturtle says:

    Maybe the FPPC should adopt a simple philosophy for regulations. Instead of trying to bust everyone for not dotting their “i”s and crossing their “t”s, focus on telling the public who paid for what. If its court-side seats for the Mayor, a television ad, a Chamber of Commerce junket to China, a Facebook ad, and even a blog. Individuals and organizations have every right to express their free speech and spend their own money the way they want. Just tell us.

    Creating a complex maze of regulations creates a game of gotcha between candidates which only a select group of Californians care about, and a post-election fundraising drive for the FPPC. If we could free up some resources at the FPPC maybe they could investigate complaints before the election, and not after.

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