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1 1 (March 18, 2019)

handle is hein.crs/govyaw0001 and id is 1 raw text is: Cogesoa Resarc Seric 0 Updated March 18, 2019 Online Political Advertising: Disclaimers and Policy Issues Introduction and Background How campaign finance law and regulation affect online political ads illustrates the challenge of incorporating emerging technologies into preexisting regulatory frameworks. Should Congress adapt campaign finance law and regulation to emerging technology and tactics, and if so, how? How can or should it do so amid disagreement over what constitutes political messages? In addition to grappling with these complex and politically sensitive topics, the debate covers an area of law that receives substantial First Amendment protection. This CRS product provides a brief policy overview. Campaign finance policy provides a regulatory framework for identifying and reporting information about ads clearly intended to affect federal elections. Many ads, however, that might shape the environment in which a campaign is waged-but without necessarily affecting an election- likely fall outside campaign finance law. Paid online ads must include language identifying the sponsor, but some requirements for ads transmitted via other media do not apply to online ads. Latest Policy Developments Congress has not enacted legislation focused specifically on online campaign activity, although elements of existing statute and Federal Election Commission (FEC) rules address internet communications. In March 2019, the House passed H.R. 1, which contains provisions of the Honest Ads Act. First introduced in the 115th Congress as H.R. 4077 and S. 1989, the bill would amend the Federal Election Campaign Act (FECA; 52 U.S.C. §§30101-30145) to further regulate some online ads. Before these recent developments, as the internet became more politically prominent in the early 2000s, questions emerged about which activities were considered public communications (discussed below), and thus subject to FECA and FEC regulations. The FEC issued rules in 2006, implementing parts of the Bipartisan Campaign Reform Act (BCRA), that exempted most internet activities in which individuals would engage (e.g., blogging) from the public communication regulatory definition-but required disclaimers on paid online ads (11 C.F.R. §100.26). The Supreme Court's 2010 Citizens United decision, and reports of foreign interference in the 2016 elections using social media, renewed interest in online advertising in Congress and at the FEC. In 2011 the FEC announced an Advanced Notice of Proposed Rulemaking (ANPRM) to receive comments on whether it should update its rules concerning internet disclaimers, but the agency did not advance new rules. In 2016, the FEC announced that it was reopening the comment period on the 2011 ANPRM. It again reopened the comment period in October 2017. Several Members of Congress filed comments. On November 16, 2017, the FEC voted to draft revised internet-disclaimer rules (a notice of proposed rulemaking) for paid advertising, and held a hearing in June 2018. Report language (H.Rept. 116-9) accompanying the FY2019 consolidated appropriations law (P.L. 116-6) directs the FEC to update congressional appropriators on the rulemaking. Which Advertising is Political? The term political advertising does not necessarily mean the same thing in popular culture or media accounts as it does in federal policy and law. In the former, the term generally implies any advertising that concerns American politics or policy issues. Campaign finance law generally does not use the term political advertising, but distinguishes between advertising that explicitly refers to federal candidates or elections, versus that which refers to public policy issues without mentioning candidates. These differences are not merely semantic. The content, timing, and medium of advertising all can affect whether or how it is regulated in federal campaign finance law and agency rules, as well as policy options available to Congress. Perhaps most importantly, advertisements that refer only to policy issues but do not address elections or candidates likely fall outside the bounds of campaign finance law and regulation. Communications containing express advocacy call for election or defeat of candidates. Issue advocacy calls for support for or opposition to policy issues but does not necessarily refer to particular candidates. Campaign finance policy and law regulates express advocacy, but typically not issue advocacy, unless those messages are classified as electioneering communications (ECs). Under FECA, ECs refer to candidates during pre-election periods and in certain media but do not call for election or defeat. Disclaimers and Disclosures As used in campaign finance policy and law, disclaimer means a statement identifying who is responsible for a political advertisement. Disclaimers are often confused with the related but separate concept of disclosures. The latter refers to publicly reporting (e.g., to the FEC) information about contributions and expenditures. This CRS In Focus does not discuss disclosure. In general, however, the activities discussed herein would be reported to the FEC in regularly filed financial reports, in special notices filed within 24 or 48 hours of an expenditure, or both. Issue advocacy (unless meeting the electioneering communication criteria) is not disclosed to the FEC. https:I/crsreports.conc -- _-_

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