The Honest Ads Act? Honestly, What’s That All About?

In the past week, you may have heard about the Honest Ads Act (the Act). This is bi-partisan legislation that was recently introduced in the Senate in response to reports of foreign intervention through social media in the 2016 election.

Since 2006, most online political activity has been exempt from the regulations to which other political advertising has been subject. However, as detailed in the Findings section of the bill, this resulted in abuses of social media political advertising. Accordingly, various nonprofits, including the Sunlight Foundation (which helped draft the bill), and legislators concluded that the current regulatory regime was not working and created the Honest Ads Act to increase transparency in online political advertising. The legislation is sponsored by Senators Mark Warner, Amy Klobuchar, and John McCain. A companion bill, sponsored by Representatives Derek Kilmer and Mike Coffman, was also introduced in the House.

The Honest Ads Act would amend portions of the Federal Election Campaign Act of 1971. Provisions that describe rules placed on traditional media outlets would be expanded to include “satellite, paid Internet, or paid digital communication.” This means that disclosure and disclaimer rules that apply to television, print, and radio ads would also apply to paid internet ads.

Additionally, online platforms will be required to maintain a “public file” of ads on qualified political advertisements. Qualified political advertisements include those about candidates, Federal elections, or national legislative issues of public importance. These files would need to include a digital copy of the ad; a description of the audience of the ad; the number of views generated; the duration of the ad (when it was published and when it was taken down); the rate charged for the ad; and the name of the candidate supported or opposed in the ad, the election to which the advertisement refers, or the national legislative issue to which the ad refers to. This would apply to public-facing online platforms that sell advertising and have fifty million or more visitors per month.

What do people think about this legislation? Many media companies and online platforms support the goals of the legislation (transparency in campaign finance) and are willing to work with Congress and the Federal Elections Commission moving forward. However, there are parts of the legislation that they believe could use finessing. In addition, on October 24, 2017, the House Subcommittee on Information Technology held a hearing on “Oversight of Federal Political Advertisement Laws and Regulations.” While this hearing was not specifically on the Honest Ads Act, it did address similar issues. As seen in the hearing, there is general agreement that foreign intervention in campaigns, especially through online communications, is an issue that needs to be addressed. The disagreement stemmed from how far the measures that address this problem should go and whether it should be the platforms hosting the content and/or the content itself that needs to be more regulated. You can view the hearing here.

Bolder Advocacy supports efforts to increase openness and transparency in the democratic process. However, any legislation that involves the First Amendment should be drafted thoughtfully and with attention to how much it may limit or burden organizations. We are concerned, for instance, about the scope of what constitutes a “qualified public advertisement” as that could constitute almost anything. We are happy to speak with any nonprofits who wish to learn how the current legislation may impact their advocacy activities.