The Federal Election Commission (FEC) recently held two days of hearings on proposed internet regulations. While the hysterical media has ginned up a new “red scare,” the FEC’s proposals will do nothing to stop bad actors, but will undermine our First Amendment rights to online political speech.
The FEC used the hearings, at which I testified, to consider different approaches — some more restrictive than others — to “improve” disclaimers for online political advertising. Yet FEC regulations already require political action committees (PACs) and other online spenders to use disclaimers where they can, or to click through to fully disclaimed pages if they can’t. PACs are also required to disclose all of their expenditures monthly or quarterly, and file special reports whenever spending more than modestly to support or oppose candidates.
Existing regulations are clear and comprehensive. The law isn’t the so-called problem being addressed here, though; it’s all that persnickety speech outside the political establishment.
Bad actors won’t comply with the law — because they’re bad actors. For the political elites, who can afford to hire campaign finance lawyers and well-paid vendors, the FEC’s proposals will at most be a nuisance as they continue delivering their messages online.
Regulating the internet will only overburden everyone else who would seek to comply with the law, or simply stay silent. The left’s quick-trigger response is as aggressively anti-First Amendment as they are to the Second Amendment, and every bit as pointless. Echoing anti-gun activists, anti-speech liberals attempt to punish lawful activity they dislike with rules that won’t stop unlawful activity.
If political advertisers violate the regulations on the books, they should be pursued and punished. But the left’s vision of a less free internet is little more than ill-considered, knee-jerk reaction to Hillary ClintonHillary Diane Rodham ClintonBen Affleck: Republicans 'want to dodge the consequences for their actions' through gerrymandering Republican Ohio Senate candidate slams JD Vance over previous Trump comments Budowsky: Why GOP donors flock to Manchin and Sinema MORE’s failed presidential bid.
The resonance of President TrumpDonald TrumpSenate rejects attempt to block Biden's Saudi arms sale Crenshaw slams House Freedom Caucus members as 'grifters,' 'performance artists' Senate confirms Biden's nominee to lead Customs and Border Protection MORE’s candidacy and eventual victory led Congress and federal agencies to take a heightened interest in Facebook advertising and other forms of truly open, online speech through which the Trump message flourished. Following the 2016 election, Sen. Mark WarnerMark Robert WarnerHillicon Valley — Presented by Connected Commerce Council — Incident reporting language left out of package Language requiring companies to report cyberattacks left out of defense bill Democrats see Christmas goal slipping away MORE (D-Va.) warned against political ads “that would drive interest toward stories or groups” to “sow chaos and drive division in our country.” In other words, ideas he doesn’t like.
Left-leaning journalists, meanwhile, continue to suggest “fake news” on social media elected President Trump. As NPR reporter Danielle Kurtzleben put it, “Many purveyors of fake news aimed to help Trump win, and lo and behold, Trump won.” In other words, ideas they don’t approve of.
Of course, such assertions don’t hold up to empirical scrutiny. Zuckerberg first came under congressional pressure over $10,000 worth of Russian-bought Facebook ads. Not all of them were even explicitly political: Of the roughly 3,500 Facebook ads traced back to Russia, only about 100 mentioned support for President Trump or opposition to Clinton.
Are we really supposed to believe that $10,000 and 100 ads felled the billion-dollar Clinton machine — the epitome of political establishment? Or, could it be Americans simply rejected an out-of-touch liberal they didn’t like and couldn’t trust?
To enact broader internet regulations because of the Democratic Party’s sour grapes is the definition of foolishness. Anti-speech Democrats and their establishment enablers assume Americans are mindless simpletons, bought off by the wealthiest candidates and most expensive ad buys.
Have we so quickly forgotten the debacle of Jeb Bush? Or Sen. Marco RubioMarco Antonio RubioRubio calls on Airbnb to delist some properties in China's Xinjiang region Democrats seek to avoid internal disputes over Russia and China GOP senators introduce bill targeting Palestinian 'martyr payments' MORE (R-Fla.)? Or even Clinton herself? Along with Mitt RomneyWillard (Mitt) Mitt RomneyRomney praises Biden's boycott of Beijing Olympics White House announces diplomatic boycott of Beijing Olympics US expected to announce diplomatic boycott of Beijing Olympics soon: report MORE, these were the candidates with the largest super PACs in U.S. history — and they all lost.
President Trump cruised to primary victory after victory running almost no ads. He won the White House after being substantially outspent in the general election.
The bottom line is this: It’s up to Americans to decide which ideas to support or oppose. Political advertising only brings them more ideas to consider — and broadens the parameters of our political debates.
This is especially true online, where debates are at their most robust. Stifling them with red tape is un-American.
Keep free speech on the internet free from Big Government.
Dan Backer is founding attorney of political.law, a campaign finance and political law firm in Alexandria, Va. Backer is general counsel for the Great America PAC and other political committees; he has served as counsel to more than 100 campaigns, candidates, PACs, and political organizations. Backer is also the president and founder of the Coolidge Reagan Foundation.