Michael Pfeifer

Facebook releases updated disclosure rules for political ads in advance of 2020 elections

In a preemptive effort designed to enhance transparency for the upcoming 2020 elections, Facebook has announced that it will strengthen its digital advertisement program rules for political ads to increase disclosure requirements for advertisers using the platform. The decision comes after months of scrutiny from Congress and growing public concern over the use of Facebook’s platform by foreign actors to spread political misinformation during the course of the 2016 election cycle. 

The 2016 presidential election saw a record amount of digital political advertising across the country, with the majority of spending going toward major technology players such as Facebook and Google. With multiple congressional investigations and the report of former Special Counsel Robert Mueller verifying that foreign actors took advantage of these platforms to spread misinformation via targeted political advertisements leading up to the 2016 election, technology companies are under mounting pressure to take action to combat the spread of misinformation.

With this goal in mind, Facebook’s new digital advertisement review program guidelines will implement more stringent transparency rules for advertisers seeking to purchase ad space on the social media platform. The newly adopted procedures will require advertisers to supply significantly more information about their organization during the purchasing process than what the company has previously required. Moving forward, when securing ad space, advertisers will be required to provide information such as a U.S. street address, phone number, business email and business website matching the listed email – all information that indicates the existence of a legitimate domestic enterprise.

Additionally, Facebook is implementing new disclaimer requirements in order to improve transparency surrounding ‘Paid for by’ disclaimers. Under the company’s new policy, advertisers will be required to provide organizational information that will be used to create an information field – or “i” icon that appears on a posting – and allow site users to confirm that the organizations are legitimate actors. As part of this change, Facebook has also announced new guidelines for advertisers who wish to be certified as a ‘Confirmed Organization’ on the social network. In order to be recognized as the most trusted ‘Confirmed Organization’, advertisers must provide a tax ID number, Federal Election Commission (FEC) ID number, or a government website domain that matches an email ending with a government (.gov) or military (.mil) email line.

While Facebook has taken this first step toward revamping its internal political advertising policies and disclosure requirements, it is difficult to predict the full impact this change will have during the 2020 federal election cycle. Just as digital political advertising and marketing have outpaced the regulatory efforts of federal and state lawmakers across the country, so has it (to a lesser degree) outpaced the transparency and disclosure actions of the private platforms themselves.  Once can likely expect the same in the current cycle, but Facebook’s new policy still represents an important first move by Silicon Valley to dissuade foreign and other bad actors from poisoning the well of political discourse heading into 2020. 

As election season heats up next year, Dentons expects to see more changes to social media and technology companies’ digital advertisement policies and will endeavor to keep our readership posted.

Partisan Gerrymandering Upheld by U.S. Supreme Court

On June 27, 2019, the Supreme Court decided Rucho v. Common Cause, a highly-anticipated case stemming from legal challenges to the purported partisan gerrymandering of congressional districts in Maryland and North Carolina. 

In a 5-4 ruling, the Court held that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Consequently, gerrymandering can only be addressed or resolved through action from Congress or individual states, and the drawing of highly partisan legislative districts, which have increasingly raised political ire in recent years, can no longer be challenged in the courts solely on political grounds.

Gerrymandering is the practice of drawing electoral district boundaries in a way that gives one party a distinct advantage over its rivals. Gerrymandering is by no means a new phenomenon – its roots trace back to the first US congressional elections.  In recent years, however, both political parties have taken advantage of control over various state legislatures to craft electoral maps strengthening their opportunity for political success in future years.  In the Rucho case, the districts at issue were the most recently-drawn congressional boundaries in the states of North Carolina and Maryland.  In North Carolina, litigants challenged the legitimacy of Republican-drawn districts that disadvantaged Democrat prospects in federal elections.  Similarly, in Maryland, litigants objected to the imbalance of congressional lines drawn by state Democrats to the disadvantage of Republicans.

Despite the balanced posture of the case, the Court’s majority leaned on precedent and the inherently political question before it when crafting its opinion. According to the majority, there is longstanding precedent recognizing the power of state legislatures to draw electoral districts – an inherently political task.  As such, in his majority opinion, Chief Justice Roberts argued that partisanship is allowed to play a role in the drawing of congressional districts – indeed this was the Founders’ intent.  In turn, the Court asserted that any attempt by courts to interject themselves into the process of weighing levels of partisanship in gerrymandering cases would inherently mean judges would be arbitrarily deciding how much partisanship is too much rather than resolving such disputes based upon clear, manageable and politically-neutral standards and limited and precise rationales. 

The rulings of the lower courts in North Carolina and Maryland, grounded in rubrics that the Court viewed as non-justiciable, were thus vacated.  It is noteworthy that the majority distinguished partisan gerrymandering from gerrymandering that involves population inequality or racial discrimination – both of which the Court has previously ruled as unconstitutional.  Ultimately, any partisan gerrymandering disputes can only be resolved politically through state legislation, state constitutional amendments, or Congress.

While the Court’s opinion expressed frustration over the excessive partisanship driving redistricting in the current political environment, the majority found that the judiciary is simply not the proper governmental branch to find solutions to the political issue of partisan gerrymandering.  Moving forward, Rucho puts the ball firmly in the courts of the people’s elected legislators to address the question of partisan gerrymandering.  Some states — Florida, Michigan, and Colorado, e.g. –  have passed amendments to their state constitutions limiting the practice. Others like Delaware and Iowa have passed laws through their state legislatures prohibiting favoritism in redistricting. Congress also now has the opportunity to address the issue through legislative means. 

Dentons will continue to monitor these efforts moving forward and provide insight on how such efforts will impact future elections at the federal, state and local levels around the country.  

FEC increases contribution limits for 2019-2020

The Federal Election Commission (FEC) updated the federal contribution limits for the 2019-2020 election. The new per election limits were effective January 1, 2019. Below is a chart that explains the new limits on each donor.

The chart above illustrates the new increased contribution limits to the respective donors. Individuals can now contribute $2,800 per election to a candidate, an increase of $100 from the 2018 cycle. This means that individuals may now give up to $5,600 per candidate per cycle (combined to include both the primary and general election limits). Due to changes in inflation, these limits are increased every odd-numbered year to balance out differences.

The contribution limit to national party committees can now contribute $35,500 per year, an increase of $1,600 from last year. The annual max contributions to the national party committee accounts have been increased to $106,500, an increase of $4,800.

Note that traditional PAC contributions are not indexed for inflation. This means that PAC contributions remain the same from 2018.

New federal court ruling shakes up disclosure norms in the federal independent expenditure space

In a decision likely to throw further uncertainty into the world of campaign finance disclosure rules, an Obama-appointed judge on the United States District Court for the District of Columbia recently invalidated the Federal Election Commission’s (“FEC”) regulation regarding the disclosure of donors by organizations making federal independent expenditure communications.  In light of the ruling, organizations, including 501(c)(4) social welfare entities, seeking to spend money on independent expenditures involving federal candidates between now and the November midterms should be mindful of the shifting legal ground beneath them and the likelihood of increased scrutiny into their FEC disclosure filings moving forward.

The existing FEC regulation at issue – 11 C.F.R. § 109.10(e)(1)(vi) – requires organizations that make independent expenditures in excess of $250 in a calendar year to disclose the identity of donors who gave over $200 for the purpose of furthering the reported independent expenditures.  Independent expenditures are communications that expressly advocate the election or defeat of a clearly identified federal candidate.  According to Judge Beryl Howell’s decision, the current iteration of the 11 C.F.R. § 109.10(e)(1)(vi) “blatantly undercuts” the overall congressional goal of disclosure due to the fact that it only requires organizations to report donors who gave for the particular independent expenditure being reported.  Thus, if donors gave contributions for general independent expenditures, or even if donors gave contributions earmarked for a specific independent expenditure plan but not a particular expenditure, such donors would not need to be disclosed on the independent expenditure reports.

In light of Judge Howell’s ruling, the FEC now has 45 days to issue regulations that more closely align with her understanding of the purpose of the Federal Election Campaign Act of 1971 – greater transparency.  The existing regulation will remain in effect for the 45 days, so organizations spending money on independent expenditures for the next 45 will be subject to those rules.  In the interim period, there is no need to amend past disclosure reports.

Given the significance of this ruling and the mixed reception it has received among lawyers concerned about First Amendment and administrative deference concerns, there will likely be an appeal from Crossroads GPS, an intervenor in the case and one of the most active 501(c)(4) social welfare organizations in the political arena.  It also remains to be seen how the FEC will respond to the court’s order and how it choose to enforce a new regulation that might jeopardize the anonymity of good faith donors to politically-active nonprofits. The Dentons Political Law Team will continue to monitor the legal issues and developments surrounding non-profit disclosure rules, but in the meantime please consult legal counsel should your organization be considering playing in the independent expenditure space.

As midterms approach, campaigns must contend with evolving nature of social media rules

In recent weeks there has been a flurry of activity regarding the role of social media in both federal and state elections, spurred in large part by concerns about foreign interference in American elections as well as President Trump’s undying love for the medium.

Twitter, a favorite engagement tool of many elected officials, consultants and media observers, has been at the center of much of this activity.

Late last month, after coming under intense scrutiny from policymakers on both sides of the political aisle for lax screening of account holders, Twitter announced that it would be adopting amendments to its internal political ad rules ahead of the 2018 midterm elections.

The new policies–designed to stem the influence of foreign nationals in US elections (an illegal practice) and to increase overall transparency in political engagement–obligate political candidates and committees purchasing ads on the platform to become certified as political advertisers before communicating with users.  For federal candidates and political committees, this means providing Twitter with your Federal Election Commission identification number for certification purposes.  For non-FEC registered organizations, this means submitting a notarized identification form to Twitter establishing account status as a certified advertiser.  The revised policies also implement new restrictions regarding profile bios, profile photos, linked websites, and header photos that seek to ensure transparency in political communication and guard against improper use of Twitter by foreign actors.

Almost in unison with the launch of these new Twitter political engagement policies, a federal judge in the Southern District of New York issued a controversial ruling in a lawsuit involving President Trump’s use of the social media platform.  The President, as political observers know well, has made a practice of tweeting with great regularity and was known for blocking followers who were critical of Administration actions.  The later practice, which angered certain groups of his political opponents, was challenged in federal court as an unconstitutional restraint on the First Amendment rights of the blocked Twitter users.

In what many have described as a curious and constitutionally questionable decision, U.S. District Judge and Obama-appointee Naomi Reice Buchwald found for the plaintiffs, characterizing the President’s personal Twitter account as a public forum or “digital town hall” from which he could not exclude individuals.  Twitter muting by the President was somehow adjudged permissible, but not the full blocking of followers.  The President is appealing the decision to the Second Circuit Court of Appeals, but in the meantime public officials across the nation are left to ponder whether they also must leave open their personal Twitter accounts to all comers as public forums, or whether they can legally shut down their accounts without violating the “constitutional rights” of their followers.

With Twitter and other social media platforms at the center of so many political and legal battles at present, it’s entirely predictable that state governments would begin to seek out new ways to regulate online electioneering activity by political candidates and their campaigns.  Maryland is a prime example of one such jurisdiction that has taken recent action in this area.  Earlier this month, Governor Larry Hogan – who has come under scrutiny from transparency groups for allegedly “censoring” comments on government Facebook pages – permitted the Online Electioneering Transparency and Accountability Act to become law without his signature.

This new law aims to strengthen Maryland’s current campaign finance framework, and requires online platforms that have more than 100,000 monthly visitors to maintain a public file of advertisers who spend a certain amount of money on their system.  Advertisers who use those vehicles must report a wide range of information, including the identities of the individuals controlling the ads, the amount paid for the ads, and the name of a contact person that the State Board of Elections may contact if an inquiry is appropriate.  Such information would need to be made public within 48 hours of launch by the entity that was paid for the ad.

No matter the context, the message is clear – government entities are beginning to wake up to the role that social media and online platforms are playing in American politics and elections.  There are sure to be more regulations implemented, at both the state and federal level, and most assuredly more lawsuits tackling the thorny constitutional, statutory and regulatory issues surrounding forms of virtual political engagement.