Digital Political Ads

8/31/2020

Introduction

Political advertising has evolved from a primarily print-based medium to a form that encompasses radio, television and now digital advertising on social media platforms, websites, search engines and more. Political candidates and other users have spent over three times more money on digital political ads in the 2019-2020 election cycle than in the 2016 cycle. While some of that increase may be due to a crowded race for the Democratic presidential nomination, state and local campaigns are getting in on the digital action, as well.

As more political advertising and campaign spending moves to online platforms, the laws that govern money in politics have stayed largely the same. Laws written to regulate television, radio and print ads aren’t easily applied to internet ads, which are both more complex and abundant.

Below, we lay out the basics about digital political ads, approaches to regulation (or not) and provide some examples of legislative options. The table below also provides links to significant legislation on this topic over the last three years.

What is a Digital Political Ad?

The answer may not be as simple as you think. State definitions—as well as online platforms’ definitions—for political advertising vary, and not all states explicitly mention digital or online advertising. Some examples:

Arizona: Political advertising is “information or materials, other than nonpaid social media messages, that are mailed, e-mailed, posted, distributed, published, displayed, delivered, broadcasted or placed in a communication medium and that are for the purpose of influencing an election” (A.R.S. § 16-901).

New Hampshire: Political advertising is “any communication, including buttons or printed material attached to motor vehicles, which expressly or implicitly advocates the success or defeat of any party, measure or person at any election” (RSA 664:2).

Washington: Political advertising “includes any advertising displays, newspaper ads, billboards, signs, brochures, articles, tabloids, flyers, letters, radio or television presentations, digital communication, or other means of mass communication, used for the purpose of appealing, directly or indirectly, for votes or for financial or other support or opposition in any election campaign” (RCW 42.17A.005).

An online platform’s definition can also intersect with a state’s definition, potentially causing confusion about what content is allowed or what meets campaign finance disclosure requirements. Google, for example, defines political ads as those purchased by or about current elected officials or candidates for state or federal office or for ballot measures. Facebook’s definition is similar, but includes ads about “social issues.” And Twitter, which banned political ads in 2019, defines them as relating to “a candidate, political party, elected or appointed government official, election, referendum, ballot measure, legislation, regulation, directive, or judicial outcome,” though cause-based ads are allowed. (Many of these platforms also have rules about mis/disinformation, an issue closely related to digital political ads, but not addressed here.)

Legislators may want to examine their state’s definition of digital political advertising to ensure it meets their state’s needs in the current technological landscape.

Approaches to Digital Political Ads

By virtue of NCSL’s mission, this page focuses on legislative options for managing or regulating digital political ads. Many observers may not see a legislative imperative. Those on the right may advocate for little legislative involvement in online political advertising, arguing that regulation curbs free speech and limits access to the low-cost and democratic space of online advertising.

Lawmakers may also argue that industry players, rather than legislators, are in a better position to manage digital political ads because they understand the complexity of online advertising. The Digital Advertising Alliance’s Political Ads program offers a self-regulatory approach to increase transparency and accountability in digital political advertising. Such programs could work in tandem with legislative regulation.

Legislative Options

For those who are interested in regulating digital political ads, there are two main types of legislation on digital political ads: disclaimer requirements and database requirements.

Disclaimer legislation addresses how required disclaimers are applied to digital ads. The shape, size and format of digital ads can vary widely across platforms, so legislators may wish to think about how or where disclaimers can be located—are they on the ad, shortened, available with a click through or accessible through an icon? California’s "Social Media DISCLOSE Act" (2018), for example, requires that ads include the text “Who funded this ad?” and a link to a separate webpage that provides the answer. Even so, the act makes provisions if such text won’t fit on the ad. 

With disclosure requirements, lawmakers will also need to think about who is responsible for imposing those requirements—platforms or advertisers. In 2018, Maryland passed the “Online Electioneering Transparency and Accountability Act,” which required that online newspapers and media outlets publicly disclose the names and contact information of anyone who purchases online campaign or issue ads. Yet, many online platforms do not know who their advertisers are, and this issue was at the core of the legal challenge to Maryland’s bill brought by newspaper publishers and the regional press association. The court found that asking advertisers to self-identify to publishers would not effectively limit foreign involvement in political advertising or meet the intent of the law.

Another legislative option is to require a database of digital political ads, including information about who paid for it, when the ad ran, a copy of the ad and more. Legislators interested in this option will need to consider where the database will exist and who will be responsible for maintaining it. New York and Washington have both successfully enacted and implemented such public databases. Facebook, however, has chosen not to run ads in the Evergreen State because the social media giant does not collect the required information or make it publicly accessible.

The legislation of digital political ads may occur on the city or federal level, as well as the state level. In Seattle, for example, anyone who sells or produces political advertising must maintain public records that include the ad buyers’ names, addresses, a copy of the ad, cost of the ad, the name of the candidate or elected official mentioned by the ad, the relevant election and more. In 2017, Senators Amy Klobuchar, Mark Warner and John McCain sponsored the Honest Ads Act, the first federal-level effort to subject internet ads to the same regulations as radio and television ads and to make publicly available the identity of the ad purchaser. It failed and was reintroduced in 2019, where it died in committee again.

Table: Digital Political Ad Legislation

The table below captures all significant introduced state legislation on digital political ads.

State

Year

Bill and Status

Description

California

2018

AB 2188, enacted.

The “Social Media DISCLOSE Act” extends the disclosure requirements established by the 2017 “DISCLOSE Act” to online platforms, requiring that each committee behind a digital political ad disclose their top three funders by including a hyperlink to a website with that information.

Connecticut

2020

HB 5410, failed.

Requires online platforms to disclose purchases of political advertisements, among other campaign finance provisions.

 

2019

HB 7329, failed.

Requires online platforms to disclose purchasers of political advertisements and adds new definitions for “online platform” and “qualified political advertisement.”

 

2019

SB 642, failed.

Defines “online platform” and “qualified political advertisement” and requires that online platforms make publicly available copies of electioneering communications and provide contact information for the entity responsible for the sale and appearance of the advertisement.

 

2019

SB 1043, failed.

Requires online platforms to disclose purchasers of political advertisements.

Idaho

2019

SB 1114, failed.

Revises definitions and reporting requirements for electioneering communications and independent expenditures, including those on social media.

Maryland

2018

HB 981 and SB 875, enacted without the governor’s signature. Parts of the law were struck down in 2019.

The “Online Electioneering Transparency and Accountability Act” alters the definition of “campaign material” to include qualifying digital communications and makes provisions for disclaimers on digital political advertising. The act also requires platforms with over 100,000 monthly visitors to make publicly available the names and contact information for any purchasers of digital communications and requires news organizations to maintain a public database with information about the subject of the ad, the dates and times it was published, a description of the ad’s audience and more.

New York

2018

AB 9930, enacted.

The "Democracy Protection Act” updates definitions to include internet and digital political advertisements, requires new reporting and disclaimer requirements for digital campaign advertisements, prohibits expenditures from foreign entities and requires online platforms and social media sites to maintain an online record of advertising purchases by any independent expenditure committee.

North Carolina

2019

HB 700, failed.

Similar to HB 1065, this bill defines “qualified digital communication” as any paid communication on a public-facing website or social media platform and establishes disclosure requirements for qualified digital communications.

 

2018

HB 1089, failed.

Requires a study and legislative recommendations about regulating digital communication in electioneering communications and advertising disclosures.

 

2018

 

HB 1065, failed.

Establishes a definition for “qualified digital communication” to be any paid communication on a website or online platform that is public-facing, sells political advertisements and has over 100,000 monthly visitors.

Virginia

2020

HB 849, enacted.

Requires that online political campaign advertisements follow the same disclosure requirements as print media, television and radio advertisements. Adds relevant definitions and requires online platforms establish procedures for online political advertisers to identify themselves as such.

Washington

2018

HB 2938, enacted.

Adds digital political advertising to the state’s disclosure rules, streamlines the Public Disclosure Commission’s process for addressing campaign finance complaints and requires that ad sellers provide a publicly available record of campaign advertisers’ information.

Additional Resources