Federal Election Commission, Rulemaking concerning Internet Communications Disclaimers

In response to concerns about Russian interference in US elections, the Federal Election Commission (FEC) reopened for comment an Advance Notice of Proposed Rulemaking on Internet Communications Disclaimers.  The clinic drafted comments on behalf of Asian Americans Advancing Justice (AAJC), Color of Change, and the National Hispanic Media Coalition. The comments filed in November 2017, urged the FEC to promptly begin a rulemaking to promulgate effective, up-to-date disclosure regulations for internet communications.  The comments showed that online political advertising had dramatically increased in the past several years, but the FEC’s regulations on Internet advertising had not be updated since 2006 and did not cover much of the online advertising that was taking place.  The comments argued that without adequate disclosure, voters, especially voters of color, were susceptible to deceptive campaign practices attempting to spread confusion, discourage voters, or disseminate false information.

In March 2018, the FEC issued a Notice of Proposed Rulemaking seeking comment on two alternative proposals for amending its regulations on disclaimers on public communications on the internet.  The Notice cited comments filed by the clinic to show that new rules were needed and that disclosures have to be functional on all devices.

The clinic filed comments in response to this Notice on behalf of the same organizations.  The comments largely supported the FEC’s proposal, but suggested some revisions, such as defining “public communications” (i.e. they type of communications that require disclosure) to include not only communications placed for a fee but also those “promoted” for a fee.  The comments also pointed out that industry self-regulatory initiatives did not reduce the need for the FEC to act promptly to revise its rules.

In June 2018, the FEC held two days of hearings on its proposed rule.  Carmen Scurato, Vice President of Policy & General Counsel at the National Hispanic Media Coalition testified that minority populations rely on smart phone technologies more than other ethnic groups and that inadequate disclosures and lack of disclaimers result in disenfranchisement of these groups.  She emphasized the disclaimers must be able to be read on mobile devices.  After the hearing, the clinic filed a supplemental pleading responding to comments made at the hearing.