Last Updated Sept. 30, 2011
A campaign website is today's answer to yesterday's television ad. What used to be sent by direct mail is now sent by e-mail. Candidates increasingly rely on social media like Twitter and Facebook to connect with voters and get their message out. Obama raised $500 million from 3 million on-line donors in 2008. The Internet is no longer the new frontier when it comes to political campaigns. It is surpassing traditional methods of campaigning and the traditional media that campaigns rely on. Regulation of Internet campaigning, however, lags far behind campaigns' use of the Internet and new media in most states.
The Florida Example
In 2009, a candidate for mayor of St. Petersburg purchased a Google AdWords advertisement that appeared in search results any time someone searched on his opponents' names. AdWords typically permit 95 characters -- 25 in the title, and 35 each in the second and third lines -- plus a URL on a fourth line. Given these character restrictions, the mayoral candidate's AdWords ad did not include the attribution required by Florida law:
Political advertisement paid for and approved by (name of candidate), (party affiliation), for (office sought).
Excluding the candidate name, party affiliation and office sought, the required attribution has 58 characters. It was clearly not feasible for the candidate to apply the attribution to the ad. An opponent filed a complaint with the Florida Elections Commission, which initially ordered the candidate to remove the ad and pay a $250 fine. The candidate filed an appeal, and ultimately the commission found that the candidate did not willfully violate the statute.
The Florida example illustrates the disconnect that exists between most states' campaign finance laws and the current reality of political communications. In 2010, the Florida Legislature responded with the passage of the Technology in Elections Act. The act allows an abbreviated attribution statement that candidates can use when space is at a premium, and also exempts many forms of Internet campaigning from attribution requirements, thereby avoiding future cases like the one described above.
Modern Political Campaigns
The campaign finance laws in most states are written to address traditional avenues of campaigning, including mail, television, radio and phone. The following list of Internet and new media campaign techniques illustrates both how current laws often do not apply to modern political campaigns, as well as the importance of making regulations flexible in order to cope with ever-evolving technology.
- Facebook: Should each status update by a candidate or campaign committee include an attribution? Is it enough if the landing page includes an attribution?
- Twitter: Should tweets require attribution? Should the landing page? If Twitter shows a preference for one candidate or party over another in its recommendations to users, is that an in-kind contribution?
- Text Messages: They are limited to 160 characters. Must texts include an attribution if they are sent by a candidate or committee?
- E-Mails: When a campaign assembles and uses a large e-mail list, is that functionally different from sending out a direct mail postcard? Should the same attribution requirements apply? How about if an individual (not affiliated with or employed by the campaign) sends an e-mail to all his or her friends and family, urging them to vote for or against a candidate?
- Bloggers: Should independent, unpaid bloggers who post about candidates or ballot issues be included in regulations? How about bloggers that are paid by a campaign?
- YouTube: When do videos featuring candidates fall under regulations?
- Websites: Does a candidate or committee's website fall under the attribution requirements? Are the costs associated with creating and hosting it reportable expenditures? If an independent individual links to a candidate website, does that constitute a contribution?
Activity in Other States
Regulation of Internet campaigning is heating up in other states besides Florida:
- California: The Fair Political Practices Commission formed a Subcommittee on Internet Political Activity, which issued a report in August 2010. The subcommittee report includes eight specific recommendations, including applying the same disclosure requirements that apply to broadcast or printed material to paid advertising on the Internet; exempting uncompensated political activity; and applying the media exemption to on-line media sources as well. The subcommittee's final report is available on the FPPC website.
- Maryland: New rules for Internet campaigning took effect on Aug. 3, 2010. They require that when committees use social media to support or oppose a candidate, the identity of the committee must be disclosed on the home page, and that campaigns keep a record of their postings on social media websites. AOL, Google, and Facebook testified as the rules were being drafted, and have responded positively to the new rules.
- Texas: The Texas Ethics Commission issued an advisory opinion in April 2010 dealing with paid advertising on social networking sites. The commission found that, due to the constraints on size and message length presented by such ads, the candidate would satisfy the attribution requirement by linking to a website that includes the full required attribution via a link including the words "political advertising" or a recognizable abbreviation thereof. Also, the House Committee on General Investigating and Ethics received among its interim charges the task of reviewing the definition of "political advertising" and determine whether the definition should be expanded to include content contained in blogs and other types of Internet communications.
- Washington: The Public Disclosure Commission offers an interpretation of how state law governs campaign activities on the internet.
- Wisconsin: The staff of the Government Accountability Board have been working on draft regulations for Internet campaigning. They are not yet available for public comment.
For More Information
To learn more about state campaign finance reform, contact Jennie Drage Bowser in NCSL's Denver office.