California Is Latest State to Ponder Regulating Online Politics

While print, TV and radio ads for years have been the go-to media for disseminating political information, online ads and social media websites are increasingly gaining prominence in this area. But only a few states so far have taken steps to address Web 2.0 campaign disclosure rules that are common in traditional media.

But new regulations may be coming for in some states. In early August, Marylandenacted disclosure rules requiring political candidates and campaigns to identify who paid for their online material. Now, California may get on board.

A subcommitteeof the state's campaign watchdog group -- the Fair Political Practices Commission (FPPC) -- on Monday, Aug. 2, proposed regulating Internet-based campaign material in a similar manner as print and broadcast ads while attempting to strike a balance between First Amendment rights.

"Because the Internet is inexpensive and accessible, it has become an important means of communicating and a significant source of political information," the subcommittee's report stated. "Traditional campaign media like slate mailers, direct mail fliers and certain advertisements -- all of which are currently required by the PRA [Political Reform Act of 1974] to include disclosure of their source and financing -- are increasingly replaced or accompanied by e-mail, tweets, websites and YouTube videos."

The proposed rules -- which would exempt individual citizens, bloggers (even those paid by political campaigns), volunteers and grass-roots groups -- are set to be presented to the FPPC Thursday, Aug. 12. Specific recommendations, among others, include:

• requiring mass campaign e-mails to identify the paying committee;
• requiring recordkeeping of mass e-mails;
• clarifying and standardizing disclaimers to require all public communications issued by a political campaign or committee to state basic information like the committee's name, website address, FPPC number and that the communication was paid for by the committee;
• clearly identifying the committee or candidate behind a social media account (which is in support or opposition of a candidate or ballot measure) on the biographical page, account landing site or similar means that the communications have been paid for by a committee or candidate; 
• requiring that the social media account's user name identifies the name of the candidate or committee; and
• if space doesn't allow (like in a tweet), requiring a link to an external website that provides information on the committee's funders.

"There's been no regulation in this field previously, said FPPC Executive Director Roman Porter. "The Political Reform Act was written 36 years ago and aimed at regulating communications of the time. This is an opportunity for the (Fair Political Practices) Commission to re-evaluate those older standards and recognize people are receiving information in a different manner."

The earliest the commission could adopt the changes is October, which would go into effect 30 days later and likely after California's November election. Porter said the commission wants to encourage and not dissuade the political discourse being conducted over the Internet. At the same time, the outdated Political Reform Act was created to regulate the mediums of the time -- print, TV and radio -- to inform voters of the ad's paid backers.

"We're not interested in laying traps for the unwary," he said. "If that same type of material is sent over the Internet ... then that type of communication should have the same type of disclosure as broadcast communications are required."

Paid Political Bloggers to be Exempt?

Sort of. If they don't exceed the state's $1,000 expenditure threshold, paid bloggers wouldn't have to disclose their financial ties to a candidate or campaign, according to the report. Instead, "their activity will be revealed through expenditure reports

filed by those entities," the report stated. "If in the future the right of Californians to full and truthful campaign disclosure is significantly compromised by undisclosed compensated bloggers, the commission should revisit this decision and consider an appropriate regulatory or legislative response."

Regulating a Moving Target

Before compiling its recommendations, the FPPC subcommittee held public hearings in Los Angeles and Sacramento, Calif., to garner feedback from the public, campaign consultants, Internet experts, public interest advocates, Federal Election Commission officials and others. Most agreed it's hard to regulate a moving target, the report said, and that the worst-case scenario would be to chill speech that was previously unfettered.

For example, social media sites like Twitter and Facebook are evolving so rapidly that the content or structure of a Web-based communication could be changed without any coordination or notice to the candidate or campaign committee. "To regulate these outlets as they are today might create loopholes tomorrow as the platforms and technologies change," the report said.

John Fleischman of the FlashReporttold the subcommittee that "requiring someone to give even one character of their 140 [character] 'tweets' is a burden on speech." And Tony Miller, then-chief of the Political Reform Division at the California Secretary of State's Office, warned against setting traps for the unwary, but also stressed that voters deserve accurate, accessible information, according to the report.

The subcommittee conceded that any regulatory response will be a work in progress.

"Further, the more fluid the boundaries among various forms of communication, the more the public expects to be informed in similar ways on different forums," the report said. "Just as one is trained to scan the lines at the end of a television ad to find out who its major donors are, one can also scan through Internet advertisements to determine whether a message is 'paid for' and by whom."

Other States Leading the Way

California isn't the first state to attempt to regulate new methods of campaign communications. Aside from Maryland, which just enacted "authority line" disclosure rules for electronic campaigning, Florida also passed laws in response to a lawsuit challenging disclosure on ads delivered on Google. Wisconsin is also drafting electronic communications guidelines.