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OVERSIGHT OF FEDERAL POLITICAL 

ADVERTISEMENT LAWS AND REGULATIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

INFORMATION TECHNOLOGY 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

OCTOBER 24, 2017 

Serial No. 115–42 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://oversight.house.gov 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

Trey Gowdy, South Carolina, Chairman 

John J. Duncan, Jr., Tennessee 

Darrell E. Issa, California 

Jim Jordan, Ohio 

Mark Sanford, South Carolina 

Justin Amash, Michigan 

Paul A. Gosar, Arizona 

Scott DesJarlais, Tennessee 

Trey Gowdy, South Carolina 

Blake Farenthold, Texas 

Virginia Foxx, North Carolina 

Thomas Massie, Kentucky 

Mark Meadows, North Carolina 

Ron DeSantis, Florida 

Dennis A. Ross, Florida 

Mark Walker, North Carolina 

Rod Blum, Iowa 

Jody B. Hice, Georgia 

Steve Russell, Oklahoma 

Glenn Grothman, Wisconsin 

Will Hurd, Texas 

Gary J. Palmer, Alabama 

James Comer, Kentucky 

Paul Mitchell, Michigan 

Greg Gianforte, Montana 

Elijah E. Cummings, Maryland, Ranking 

Minority Member 

Carolyn B. Maloney, New York 

Eleanor Holmes Norton, District of Columbia 

Wm. Lacy Clay, Missouri 

Stephen F. Lynch, Massachusetts 

Jim Cooper, Tennessee 

Gerald E. Connolly, Virginia 

Robin L. Kelly, Illinois 

Brenda L. Lawrence, Michigan 

Bonnie Watson Coleman, New Jersey 

Stacey E. Plaskett, Virgin Islands 

Val Butler Demings, Florida 

Raja Krishnamoorthi, Illinois 

Jamie Raskin, Maryland 

Peter Welch, Vermont 

Matt Cartwright, Pennsylvania 

Mark DeSaulnier, California 

Jimmy Gomez, California 

SHERIA CLARKE, Staff Director 

ROBERT BORDEN, Deputy Staff Director 

WILLIAM MCKENNA General Counsel 

TROY STOCK, Subcommittee Staff Director 

KILEY BIDELMAN, Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON INFORMATION TECHNOLOGY

Will Hurd, Texas, Chairman 

Paul Mitchell, Michigan, Vice Chair 

Darrell E. Issa, California 

Justin Amash, Michigan 

Blake Farenthold, Texas 

Steve Russell, Oklahoma 

Robin L. Kelly, Illinois, Ranking Minority 

Member 

Jamie Raskin, Maryland 

Stephen F. Lynch, Masschusetts 

Gerald E. Connolly, Virginia 

Raja Krishnamoorthi, Illinois 


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C O N T E N T S 

Page 

Hearing held on October 24, 2017 .......................................................................... 1 

WITNESSES 

Mr. Allen Dickerson, Legal Director, Center for Competitive Politics 

Oral Statement ................................................................................................. 4 

Written Statement ............................................................................................ 6 

Mr. David Chavern, President and Chief Executive Officer, News Media Alliance 

Oral Statement ................................................................................................. 15 

Written Statement ............................................................................................ 17 

Mr. Jack N. Goodman, Owner, Law Offices of Jack N. Goodman 

Oral Statement ................................................................................................. 20 

Written Statement ............................................................................................ 22 

Mr. Randall Rothenberg, President and Chief Executive Officer, Interactive 

Advertising Bureau 

Oral Statement ................................................................................................. 46 

Written Statement ............................................................................................ 48 

Mr. Ian Vandewalker, Senior Counsel, Brennan Center for Justice, Democracy Program, New York University School of Law 

Oral Statement ................................................................................................. 54 

Written Statement ............................................................................................ 56 

APPENDIX 

Questions for the record for Mr. Chavern, submitted by Chairman Hurd ......... 96 

Questions for the record for Mr. Goodman, submitted by Chairman Hurd ........ 97 

Questions for the record for Mr. Rothenberg, submitted by Chairman Hurd .... 100 


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OVERSIGHT OF FEDERAL POLITICAL 

ADVERTISEMENT LAWS AND REGULATIONS 

Tuesday, October 24, 2017 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON INFORMATION TECHNOLOGY, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 2:08 p.m., in Room 

2154, Rayburn House Office Building, Hon. Will Hurd [chairman of 

the subcommittee] presiding. 

Present: Representatives Hurd, Mitchell, Amash, Farenthold, 

Kelly, Raskin, Lynch, Connolly, and Krishnamoorthi. 

Also Present: Representatives Kilmer, Cartwright, and Sarbanes. 

Mr. HURD. The Subcommittee on Information Technology will 

come to order. And without objection, the chair is authorized to declare a recess at any time. 

Good afternoon. Today’s hearing is part of a series of hearings 

the IT Subcommittee has held to analyze existing laws and regulations that may have become obsolete or need updating to reflect 

technological advances. We’ve held hearings on health IT technologies, drones, autonomous vehicles, the Internet of Things, and 

many other issues. 

Today we turn our attention to laws and regulations governing 

political advertisements. 

The Federal Election Commission oversees civil campaign finance 

laws and enforces disclaimer requirements for public communications from candidates, campaigns, parties, or political action committees related to Federal offices. 

In addition, the FCC enforces additional disclosure and disclaimer requirements on broadcast, cable, satellite, and radio ads. 

Some have proposed increased disclaimer and/or disclosure laws 

for ads placed on internet platforms and have proposed a role for 

the FTC. 

The interplay between these three regulatory agencies and how 

they each apply the law is something the Oversight Committee is 

uniquely situated to examine, and I hope we dig into that today. 

In many ways, this hearing is another example of the IT Subcommittee’s continued efforts to examine emerging technology. 

There is a level of urgency and importance to this hearing that cannot be understated. Since the sun rose on our democratic experiment, our adversaries have sought to destroy what our forefathers 

fought for. Our adversaries have always sought to use our Nation’s 

unique qualities to undermine our robust and resilient democracy. 


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But now their tools have changed. As we’ve seen in recent 

months and weeks, Russia has attempted to influence our democratic process, utilizing, among other tools, political advertisements 

on major American social media platforms. 

With every technological advancement, our Nation’s regulatory 

posture has evolved to meet the changing needs of the day. Today 

I hope to explore questions related to the need for reform of our 

Nation’s political advertisement laws and regulations. 

As always, I’m honored to be exploring these issues in a bipartisan fashion with my friend and the ranking member, the Honorable Robin Kelly from the great State of Illinois. 

It’s always good to be with you, Robin. 

I thank my colleagues and witnesses and my fellow citizens who 

have joined us today in person or who are watching online for participating today. 

Now it is my honor to recognize the ranking member of the Subcommittee on Information Technology, Ms. Kelly, for her opening 

statement. 

Ms. KELLY. Thank you, Mr. Chairman, and thank you for holding 

this important hearing. 

Today we will examine Federal laws and regulations governing 

political advertising just 1 month after Facebook revealed that Russians spent $100,000 to buy 3,000 ads to influence the 2016 election. Those ads reached 10 million Americans. 

These are just the numbers we know of. There are likely many 

more ads that were purchased directly or indirectly by the Russian 

Government. 

U.S. campaign finance law prohibits foreign money in elections, 

but it allows foreign money to purchase issue ads. All political ads 

must carry a disclaimer which discloses who the buyer of the ad 

is, but this requirement does not extend to digital ads, like those 

that run on Facebook. 

The Russian Government exploited these loopholes. In the 2016 

elections, the Russians were able to take advantage of our antiquated campaign finance rule and mounted effective misinformation campaigns on Facebook, Twitter, and Google. They micro-targeted their ads, sometimes posing as community activists, with the 

intention of turning Americans against Americans. They sought to 

sway voters in critical congressional districts and swing States with 

fake news. 

The last time that the Federal Election Commission updated 

these regulations was April 2006, more than 10 years ago. That 

was before the iPhone had been introduced, Twitter was still in development, and the Facebook was only for college students. In fact, 

35 of the 42 members of the Oversight Committee were not yet in 

Congress, myself or the chairman included. 

Much has changed in that time. A Presidential candidate effectively used Twitter to wage a successful Presidential campaign. It’s 

time we recognize that in today’s world television and radio are not 

the only media carrying political ads. 

I am confident that we can prevent meddling by Russia and 

other foreign states in our elections while protecting the First 

Amendment rights of Americans. I was encouraged to see the FEC 


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recently reopened its 2011 comment period on social media political 

advertising after these Russian meddling revelations. 

However, I am still concerned about the systemic problems within the FEC that have led to years of gridlock and inaction. We cannot continue waiting for action from the FEC. Our adversaries 

have shown they can act quickly and exploit our inability to enforce 

the law. 

According to a recent Marist Poll, 64 percent of Americans want 

regulation on social media advertising and an astonishing 78 percent of Americans want payment disclosure for political advertisements. I couldn’t agree more. 

It’s clear that Americans want transparency and more accountability in social media political advertising. Congress and the intelligence community need to fully investigate what happened in 

2016. I commend the chairman for his leadership and willingness 

to hold today’s hearing. Congress must work to ensure the integrity 

of our elections. 

Recently, Senators Warner, Klobuchar, and McCain, and Representatives Kilmer and Coffman introduced the bipartisan Honest 

Ads Act. This bill would increase transparency in online political 

advertising by requiring online advertising platforms to disclose 

copies of ads and their targeted audiences. This bill is a great start. 

Thank you to our witnesses for being here today. I look forward 

to hearing your thoughts and ideas on how we can protect our democracy. 

Thank you, Mr. Chairman. I also ask for unanimous consent that 

Representatives Sarbanes, Kilmer, and Cartwright be allowed to 

join our subcommittee today and participate in the hearing. 

Mr. HURD. Without any objection, so ordered. 

Thank you, Ranking Member Kelly. 

And now I’m pleased to introduce our witnesses. First we have 

Mr. Allen Dickerson, the legal director at the Center for Competitive Politics; Mr. David Chavern, the president and chief executive 

officer at News Media Alliance; Mr. Jack Goodman, owner of the 

Law Offices of Jack Goodman; Mr. Randall Rothenberg, president 

and chief executive officer at the Interactive Advertising Bureau; 

and Mr. Ian Vandewalker, senior counsel for the Brennan Center 

for Justice Democracy Program at the New York University School 

of Law. 

Welcome to you all. And pursuant to committee rules, all witnesses will be sworn in before you testify. So please rise and raise 

your right hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give is the truth, the whole truth, and nothing but the 

truth, so help you God? 

Thank you. 

Let the record reflect that all witnesses answered in the affirmative. 

In order to allow time for discussion, please limit your opening 

testimony to 5 minutes, and your entire written statement will be 

made part of the record. And I appreciate those written statements. 

It really was helpful in better understanding these issues. 


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And for those that are looking for a great outline of these questions we’re going to be debating here today, I would suggest you 

go to the Oversight website to review those statements. 

As a reminder, the clock in front of you shows your time remaining. The light will turn yellow when you have 30 seconds left and 

red when your time is up. 

So, Mr. Dickerson, you’re up first, and you are now recognized 

for 5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF ALLEN DICKERSON 

Mr. DICKERSON. Thank you, sir. Chairman Hurd, Ranking Member Kelly, distinguished members of the subcommittee, thank you 

for the invitation to appear today on behalf of the Center for Competitive Politics. 

The internet has fundamentally transformed the ways in which 

we communicate with one another, and it has become ubiquitous. 

It is on our desk, next to our alarm clocks, and in our pockets. 

Today a large portion of Americans walk around every day carrying 

devices that can instantly connect them with anyone in the world 

from almost anywhere. In fact, in 2014 the Supreme Court reported 

survey data indicating that 12 percent of Americans use their cell 

phones in the shower. 

The internet revolution has allowed Americans to absorb, 

produce, and distribute content without third-party intermediaries. 

They no longer need to see if an editor has accepted their letter to 

the editor or have to bear the expense and burden of buying broadcast political ads. As Judge John Kane, a Carter appointee, observed when he struck down a Colorado campaign finance law, it 

must be remembered that the internet is the new soapbox, it is the 

new town square. 

In a way that makes the 1980s revolution in desktop publishing 

appear almost quaint, the internet has made us all publishers, distributors, and speakers. Every American has the opportunity to be 

Tom Paine, to be Publius or William Lloyd Garrison, and one suspects that those authors would approve. 

Accordingly, as the Federal Election Commission itself has recognized, the blossoming of online speech and association is delicate, 

and great caution must be taken when burdening the speech and 

associational rights of American speakers. 

That does not mean, as I explain at some length in my written 

testimony, that online speech is a Wild West without rules. But it 

does mean that the current regulatory environment strikes a balance in favor of a flourishing civil society. 

Further efforts to license or regulate the placement of small-bore 

issue advertisements, particularly those that do not advocate for 

any electoral outcome, will drive out the poorest and least sophisticated online speakers. They will inevitably affect not wealthy corporations, which can afford the experts to ensure compliance, but 

rather grassroots activists passionate about the issues of the day. 

Moreover, efforts to shift liability from licensed speech onto online platforms will simply require those companies to pass on those 

costs onto those same small budget consumers and it will create inVerDate Nov 24 2008 14:27 Jan 08, 2018 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 H:\27762.TXT APRIL

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centives to limit small-dollar ad buys and grassroots speakers in 

favor of sophisticated entities that can vet their speech in advance. 

The result will be an internet that is less free, less open, and less 

available to ordinary Americans. 

Of course, the internet also presents challenges. To take one example, foreign threats are a valid and a vital concern. But they 

cannot justify regulations whose burdens will fall overwhelming on 

Americans. 

The deterrence of foreign actors is a familiar problem. It is accomplished through means of diplomacy, counterintelligence, and 

military readiness. Campaign finance law, and in particular the 

possibility of a fine levied through the FEC’s civil enforcement authority, adds relatively little to that mix. Instead, additional campaign finance rules will further restrict access to the internet, the 

new public square, by average Americans and small groups. 

The First Amendment stands against those efforts. It is a bulwark against the passions of the moment and a reminder that our 

dedication to liberty and unfettered public debate is a strength and 

not a weakness. 

Nor does technological advancement change the Constitution’s 

fundamental guarantees. The First Amendment rights to free 

speech, press, and association are not circumscribed merely because they become easier for the average American to exercise. 

As always then, when dealing with political speech, speech that 

the Supreme Court has recognized to be at the center of the First 

Amendment’s protections, our guiding principle must be restraint. 

Thank you. I look forward to the subcommittee’s questions. 

[Prepared statement of Mr. Dickerson follows:] 


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Testimony of Allen Dickerson 

Legal Director, Center for Competitive Politics 

October 24, 2017 

Thank you for the opportunity to provide written testimony, on behalf 

of the Center for Competitive Politics ("CCP" or "Center"), to the 

Subcommittee on Information Technology of the Committee on Oversight and 

Government Reform. 

This subcommittee's consideration of online political advertisements is 

timely and important. Americans are increasingly turning to the Internet, 

rather than curated media such as newspapers, periodicals, and cable 

television, to receive information. As the Pew Research Center observed last 

month, "43% of Americans report often getting news online, just 7 percentage 

points lower than the 50% who often get news on television. This gap 

between the two news platforms was 19 points in early 2016, more than twice 

as large." 1 

And access to the Internet is becoming increasingly convenient. 

Twenty years ago, smartphones and handheld tablet computers were the 

stuff of science fiction. According to data cited by Chief Justice ,John Roberts 

in Riley v. California, today "it is the person who is not carrying a cell phone, 

with all that it contains, who is the exception ... with 12% [of such users] 

admitting that they even use their phones in the shower." 2 As cell phones 

transition to smart phones, it is unsurprising that "two-thirds ... of Americans 

report that they get at least some of their news on social media," including 

Facebook and Twitter, "with two-in-ten doing so often.":3 

This new medium has served as a democratizing force, allowing 

Americans io instantly connect with one another at all hours and from 

virtually anywhere. The Internet has also drastically reduced the cost of 

1 Jeffrey Gottfried and Elisa Shearer, "Americans' online news use is closing in on TV news 

use." FacTank. Pew Research Center, Sept. 7, 2017; available at: 

http://www.pewresearch.org/fact-tank/2017/09/07/americans-online-news-use-vs-tv-news-use/ 

' 134 S. Ct. 2473, 2490 (2014). 3 Elisa Shearer and Jeffrey Gottfried, "News Use Across Social Media Platforms 2017," Pew 

Research Center, Sept. 7, 2017; available at: http://www.journalism.org/2017/09/07/news-use· 

across-social-media-platforms-2017/ 
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bringing together like-minded people with common goals and interests. The 

rapid growth of the Internet for grassroots communications is, in that sense, 

merely a logical extension of the development of desktop publishing in the 

1980's, which empowered individuals and groups to self-publish political 

material without turning to expensive and capital-intensive professional 

shops. 

Political activity has not been immune from these forces. The Internet 

has allowed an explosion of political participation by ordinary Americans and 

the grassroots efforts they support. But that has been possible because a light 

regulatory touch and low overhead have made Internet communications 

vastly more affordable than traditional media. As the Federal Election 

Commission noted when it promulgated current regulations regarding online 

communications, the Internet is "a unique and evolving mode of mass 

communication and political speech that is distinct from other media in a 

manner that warrants a restrained regulatory approach."4 As a federal judge 

recently put it: "the [I]nternet is the new soapbox: it is the new town 

square."5 

Nevertheless, because the Internet's rise to ubiquity has felt so sudden 

and dramatic, some have characterized online political advertising as a 

lawless "wild west," with an alleged lack of transparency singled out as a 

particular issue for Congress's attention. 6 

The view that the Internet is a lawless arena, however, is mistaken. 

Federal law already regulates "communications placed for a fee on another 

person's Web site." 7 Any communication that expressly advocates the election 

or defeat of a federal candidates must "in a clear and conspicuous manner"9 

state who paid for the ad. A "disclaimer is not [considered] clear and 

4 71 Fed. Reg. 18589, 18589 (Apr. 12, 2006); also Advisory Opinion 2017-05 (Great America 

PAC) at 6 (citing same). 5 Coal. fot Secular Gov't v. Gessler, 71 F. Supp. 3d 1176, 1182 (D. Colo. 2014); af('d sub nom. 

Coal. fot Secular Gov't v. Williams, 815 F.3d 1267 (lOth Cir. 2016); cert. denied sub nom. 

Williams v. Coal. for See1dar Gov't, 137 S. Ct. 173 (2016). 

6 Bill Allison, Daniel Flatley and Todd Shields, "Russian Ads on Face book End the Web's 'Wild 

West."' Bloomberg, Sept. 21, 2017; available at; 

h ttps:l /www. bloom berg .com/news/ articles/20 17-09-21/russi an -ad-buys-on-face book-promptcalls-to-end-wild-west-on-web; Hamza Shahan and Karoun Demirjian, "Facebook and Google 

may be one step closer to new regulations on ad transparency." The Washington Post, Oct. 19, 

2017 ('"Social media advertising had to be regulated, it's the wild wild west,' said Sen. Lindsey 

0. Graham (R-S.C.)"); available at: https:/lwww.washingtonpost.com/newsltheswitchlwp/2017/10119/facebook-and-google-might-be-one-step-closer-to-new-regulations-onad-transparency/0 utm_term=.ee81c3479a36. 

'11 C.F.R. § 100.26. 8 If placed for a lee. 11 C.F.R. § llO.ll(a)(l-3). 

'11 C.F.R. § llO.ll(c)(l). 

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conspicuous if it is difficult to read or hear, or if the placement is easily 

overlooked." 10 

Additionally, for Internet communications "not authorized by a 

candidate,.the disclaimer must clearly state the full name and permanent 

street address, telephone number, or World Wide Web address of the person 

who paid for the communication, and that the communication is not 

authorized by any candidate or candidate's committee."ll 

Furthermore, all political committees-candidate committees, 

traditional PACs, and so-called Super PACs-must also place disclaimers on 

"all Internet websites" they maintain. 12 And significant email 

communications sent by such groups must also list the paid-for-by 

information. 1'

1 The only exceptions have been for "small items" or situation 

where it is "impractical" to apply these disclaimers to relatively minute 

advertisements, 14 measured either in terms of the number of characters 15 or 

number of pixels.lG 

It should be noted that the "small items" and "impracticality" 

exceptions, the subject of a current FEC Advanced Notice of Proposed 

Rulemaking, are not unique to the Internet-both exceptions have existed 

since the Federal Election Campaign Act first began requiring advertising 

disclaimers, and they have been consistently applied to things such as 

bumper stickers, buttons, and pens. While such items may seem quaint 

today, they were a significant target of campaign spending when the 

exemptions were created. 

1o 11 C.F.R. § llO.ll(c)(l). 

II 11 C.F.R. § 110.11(b)(3). 

12 11 C.F.R. § llO.ll(a)(l). 13 Id. (" ... electronic mail of more than 500 substantially similar communications when sent by 

a political committee"). 

u The Commission has struggled to apply those regulations on a case by case basis1 and has 

instead reopened public comments to consider a general approach that would allow political 

speakers to accurately predict what speech does or does not qualify. Previously. the Center 

encouraged the FEC to pursue this course and to adopt a rule stating that online 

advertisements are excused from "disclaimers in any Internet advertising product where the 

number of characters needed for a disclaimer would exceed 4% of the characters available in 

the advertised product, exclusive of those reserved in the ad's title." Comments of the Center 

for Competitive Politics on Notice 2011-11 at 5, available at: 

http://sers.fec.gov/fosers/showpdf.htm"docid=98752 Such a rule provides an explicit standard. 

It also accords with a recent federal appellate ruling that invalidated commercial disclaimers 

occupying 20% of targeted advertisements. Am. Beverage Ass'n v. City and Cnty. of San 

Francisco, Case )lo. 16-16072, 2017 U.S. App. LEXIS 18150, 2017 WL 4126944 (9th Cir. Sept. 

19, 2017) 1' See Advisory Opinion 2010-19 (Google). 

16 See Advisory Opinion 2013-18 (Revolution Messaging). 

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In short, subject to a common-sense exception where disclaimers are 

simply not practical, the FEC already regulates the core of online electoral 

speech: express advocacy and communications by candidates, parties, and 

PACs. 17 Going further would, by definition, regulate speech that is further 

afield. It would necessarily be directed at a subset of political speech, which 

may or may not be partisan, and would disproportionately target speech by 

"groups whose only connection with the elective process arises from 

completely nonpartisan public discussion of issues of public importance." !8 

Such an expansion has been urged in the name of purging foreign 

meddling in our elections. In particular, revelations of relatively modest 

Internet ad buys from Russian sources over the course of 2015-16 have led to 

calls for regulation. This is an understandable impulse: Americans, like 

people across the globe, bristle at foreign intervention in our elections. 

Yet perspective is necessary. There is little evidence that these 

purchases affected the election, and none at all that Russian efforts affected 

vote tallies. Indeed, former Clinton strategist Mark Penn earlier this month 

calculated Russian Internet ad buys at a mere $6500 in actual electioneering 

ads.l9 In a world where the Russian state operates RT, a cable network, 

foreign citizens who are U.S. permanent residents may contribute directly to 

candidates, and information may be posted to the Internet for free, it is not 

clear that small-dollar ad buys constitute a substantial route for nefarious 

f(Jreign influence? 

We arc still learning the full scope of Russian attempts to influence the 

2016 election. Nevertheless, regardless of the problem's scope, the deterrence 

of foreign powers is a mission for which campaign finance law and the FEC 

are poorly suited. Counterintelligence and diplomatic efforts, and the 

criminal authority of the Department of Justice ("DOJ"), are a better fit. This 

is especially so as nearly any efforts by foreign governments would already be 

regulated under the Foreign Agent Registration Act ("F ARA"), which requires 

ongoing periodic registration, disclaimers, and copies of advertising to be filed 

with DOJ. Campaign finance efforts are at best duplicative and at worst 

counterproductive. The Congress's attention would be better directed to 

FARA, rather than the Federal Election Campaign Act ("FECA"). 

17 See, e.g. Buckley v. Valeo, 424 U.S. 1, 79-81 (1976) (per curiam). 18 Buckley v. Valeo, 519 F.2d 821,870 (D.C. Cir. 1975) (en bane); Brou·n v. Entm't Merchs. Ass'n, 

564 FS. 786. 790 (2011) ("[W]hatever the challenges of applying the Constitution to everadvancing technology, the basic principles of freedom of speech and the press, like the First 

Amendment's command, do not vary when a new and different medium for communication 

appears'') (internal quotation marks and citation omitted). 19 Mark Penn. You. Can't Buy the Presidency for $!00,000, Wall Street Journal. Oct. 15, 2017 

(https:/ /www. w sj .com/ articles/you -cant· buy -the -presidency-for-1 00-000-15081 04629). 

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Any expansion of the campaign finance laws, whether intended to 

regulate foreign nationals or not, will mostly impact American citizens and 

American companies. For that reason, expanding the "electioneering 

communications" regulatory regime enacted in the Bipartisan Campaign 

Reform Act of 2002, and rushing to place new regulatory burdens on small 

political ad buyers, would be a mistake. 

It would be a mistake precisely because it would infringe upon the core 

activities-political speech and association-protected by the First 

Amendment. Given the relatively small amounts of money known to have 

been spent by foreign interests, any "effective" regulation would necessarily 

target small purchases-that is, precisely the small, grassroots activity most 

sensitive to, and most likely to be chilled by, heavy-handed governmental 

intervention. And because the majority of spending appears to have been 

spent on general discussions of political issues, it will be all too tempting to 

reach beyond advocacy for or against candidates and to instead impose 

restrictions on vague and subjective categories of speech "about politics."20 

These difficulties would be exacerbated if, as has been suggested, the 

government chooses to shift the burden of enforcement onto social media 

companies. This approach would be problematic in two ways. First, these 

corporations would be required to determine which ads fell within and 

without the relevant statutory definitions. This is a difficult task even for 

elementary concepts like "express advocacy" that lie at the core of existing 

campaign finance law. If federal courts and the FEC's commissioners 

disagree, often and in good faith, on whether a particular communication 

"expressly advocates," what hope does a private actor have? The predictable 

result will be a risk-averse approach, vetted by competent but cautious 

counsel, that will sweep a large proportion of genuine issue speech into the 

regulated bucket. 

Similarly, if Congress determines that small-dollar advertisements 

must be regulated, and that those ads must, in practice, be vetted by social 

media corporations or other significant Internet players, there is likely to be 

a price point at which the ads are not worth the bother. This would be 

especially true if liability of any kind is imposed for mistakes, but it would be 

true as a simple matter of costly overhead in any event. The result would be 

the exclusion of precisely that speech that is most central to First 

Amendment concerns. 

2

° Congress has made this mistake before, and the Supreme Court was forced to correct its 

error. Buckley 1:. Valeo. 424 U.S. at 77 ("'Contributions' and 'expenditures' are defined in 

parallel provisions in terms of the use of money or other valuable assets 'for the purpose oL. 

influencing' the nomination or election of candidates for federal office. It is the ambiguity of 

this phrase that poses constitutional problems"). 

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It is not obvious that anything will be gained in exchange for these 

burdens on fundamental liberties. Whatever modest advances may be made 

in preventing foreign influence will be on the backs of regulated Americans, 

who will bear the overwhelming burden under any proposed campaign 

finance regulation. 

Nor is it obvious that existing concepts, such as the federal 

electioneering communications regime, can be seamlessly extended online. In 

fact, there are reasons to think that such efforts would raise serious 

constitutional issues given the unique nature of online communications. 

Currently, federal law defines an "electioneering communication" as 

any "broadcast, cable, or satellite" ad which "refers to a clearly identified 

candidate for Federal office" made "60 days before a general, special, or 

runoff election for the office sought by the candidate" or "30 days before a 

primary or preference election, or a convention or caucus of a political party 

that has authority to nominate a candidate, for the office sought by the 

candidate."2J Such a communication must be "targeted to the relevant 

electorate," which means that the "communication can be received by 50,000 

persons" in the district or state in which a candidate is running. 22 

All electioneering communications must include a statement that 

"[XYZ] is responsible for the content of this advertising." 2'l In addition, the 

disclaimer, whether by text or audio (by audio, if the ad is a radio ad), must 

provide the sponsor's street address, telephone number, or website URL and 

state that the ad is not authorized by any candidate or candidate's 

committee.24 Additionally, upon making "electioneering communications in 

an aggregate amount in excess of $10,000 during any calendar year," 25 the 

speaker must disclose "the names and addresses of all contributors who 

contributed an aggregate amount of $1,000 or more to that account during 

the period "for the purpose of furthering electioneering communications." 26 

The exceptions to the electioneering communications regime are few, 

but include an exemption for the institutional media 27 and candidate debates 

or fora. 28 In addition, the Federal Election Commission sought to exempt 

z1 52 U.S.C. § 30104(l)(3)(A)(i). 

"52 U.S.C. § 30104(l)(3)(C). 

z1 52 LJ.S.C. § 30120(d). 

'' 11 C.F.R. § 110.ll(a)(4), (b)(3), (c)(4). 

52 u.s.c. § 30104(!)(1) 

2G 11 C.F.R. 104.20(c)(9). 

52 U.S.C. § 30104(l)(3)(B)(i). 

2s 52 U.S.C. § 30104(l)(3)(B)(iii). 

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communications made by§ 50l(c)(3) nonprofits,29 which by definition cannot 

"electioneer."30 However, this attempt to carve-out civil society speech was 

successfully challenged on administrative law grounds.:n 

The Supreme Court has upheld the current federal electioneering 

communication regime, both facialJy'l 2 and as-applied to "pejorative" ads 

about then-Senator Hillary Clinton's 2008 bid for the Democratic presidential 

nomination.H3 But it did so because "the vast majority of [electioneering 

communication] ads clearly" sought to elect candidates or defeat candidates.'H 

The government supplied evidence, through a record the Citizens United 

Court recounted as being "over 100,000 pages long,":J5 that Congress had 

precisely targeted the type of communication and forms of media required to 

regulate "candidate advertisements masquerading as issue ads." 36 Indeed, 

the McConnell Court itself noted that it "assume[dj that the interest that 

justifY the regulation of campaign speech might not apply to the regulation of 

genuine issue ads."'l7 

But there is reason to doubt that "almost all" Internet ads that would 

be swept up in an expanded electioneering communication definition would 

also be "specifically intended to affect election results."38 

The purchasing of broadcast advertisements is a cumbersome process. 

Typically, one cannot simply produce and buy a broadcast, cable, or television 

advertisement in a matter of hours-or even minutes-as one can when 

29 67 Fed. Reg. 65190, 65200 (Oct. 23, 2002) (finding concerns "compelling" that failing to 

provide a bright-light exemption for § 501(c)(3) charities would "discourage[e] ... highly 

desirable and beneficial activity"). 

" 0 26 U.S.C. § 501(c)(3) (" ... which does not participate in, or intervene in (including the 

publishing or distributing of statements), any political campaign on behalf of (or in opposition 

to) any candidate for public office"). 

:n Shays u. Fed. Election Comm'n, 337 F. Supp. 2d 28, 127 (D.D.C. 2004). There is nothing 

preventing Congress from enacting a similar exemption. 

32 McConnell v. Fed. Election Comm'n, 540 U.S. 93, 201-202 (2003). 33 Citizens United v. Fed. Election Conun'n, 558 U.S. a10, 366-367 (2010); also Del. Strong 

Families L Denn. 136 S. Ct. 2376 .. 2378 (2016) (Thomas, J., dissenting from denial of cert.) 

("And finally in Citizens United v. Federal Election Comm 'n, the Court concluded that federally 

required dlsclosure 'avoid[ed] confusion by making clear' to voters that advertisements naming 

then-Senator Hillary Clinton and 'contain[ing] pejorative references to her candidacy' were 

'not funded by a candidate or political party") (quoting Citizens United, 558 U.S. at 368. 34 McConnell, 540 U.S. at 206; id. at 193 ("And although the resulting advertisements do not 

urge the viewer to vote for or against a candidate in so many words, they are no less clearly 

intended to influence the election") (emphasis supplied). 

Citizens United, 558 lJ.S. at 332 (citation and quotation marks omitted). 30 McConnell, 540 U.S. at 132 (quotation marks omitted); id. at 127-128 (noting that "so-called 

issue ads" which "eschewed the use of magic words" were "almost all aired in the 60 days 

immediately preceding a federal election"). 

lvlcConnell. 540 lJ.S. at 206 n.88. 

38 McConnell, 540 U.S. at 127. 

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purchasing online advertising. Merely producing an advertisement, let alone 

vetting it and securing airtime, is a significant undertaking-one that most 

groups would only undertake with the assistance of counsel and advertising 

professionals. 

As a result, broadcast mass advertising is not a game for small 

grassroots speakers. It may often the case that people planning, producing, 

and scheduling a broadcast media purchase capable of reaching 50,000 people 

in a Congressional district a month before an election are seeking to affect 

the outcome of the vote. This is in part because spectrum and cable are finite 

media-one buys a broadcast ad to run on a given station at a given time. 

By contrast, Face book or Google AdWords advertisements calling for 

named members of Congress to, say, repeal the Jones Act in the immediate 

aftermath of a devastating late September hurricane, are more likely to be 

engaging in those "issue discussions unwedded to the cause of a particular 

candidate" that are "vital and indispensable to a free society."39 The Supreme 

Court is less likely to bless the regulation of that speech. 40 

Additionally, spending $10,000, in aggregate, on broadcast television 

ads is likely to involve the distribution of a handful of messages. But 

spending $10,000 in the aggregate on small online ads such as Face book or 

Google AdWords could involve many small transactions purchased by groups 

with a diverse set oflegitimate legislative interests. 

This matters. Groups that can afford counsel to help with the 

production of a broadcast ad are more likely to understand the disclaimer 

requirements and to know how to preserve documentation and comply with 

disclosure rules. And to the extent that Congress is tempted to provide a 

lower monetary trigger, it would simply compound these problems. Indeed, it 

has been publicly reported that legislation will soon be introduced imposing 

these requirements at a threshold of just $500. 41 Worse, such a low trigger 

might even lead Internet companies to decline to permit small-dollar 

grassroots advertising, rather than risk their own liability over relatively 

minor revenue streams. 

Unless Congress can assure itself that it is regulating electioneering, 

and not mere political discussion about issues of public interest, it ought to 

act with care. After all, as the Supreme Court noted in the landmark case of 

Mills L'. Alabama, "[w]hatever differences may exist about the interpretations 

39 Buckley, 519 F.2d at 873. 

to E.g. Talley u. Calif., 362 lJ.S. 60 (1960). 

" See Elizabeth Strassner, Warner, Kobluchar, McCain propose Honest Ads Act, U.S. News, 

Oct. 19, 2017 (https://www.usnews.com/news/politics/articles/2017-10-19/warner-klobuchar· 

mccain-propose-honest-ads-act). 

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of the First Amendment, there is practically universal agreement that a 

major purpose of that Amendment was to protect the free discussion of 

governmental affairs. This of course includes discussions of candidates, 

structures and forms of government, the manner in which government is 

operated or should be operated, and all such matters relating to political 

processes"'12 

In addition, there are practical concerns with merely cloning the 

electioneering communication standard applied to broadcast ads. What 

constitutes a communication reachable by 50,000 persons in the "relevant 

electorate?" Do the technical means exist to determine that answer without 

imposing insurmountable compliance costs? After all, basic economics 

dictates that such costs will be passed on to the consumer. And increasing 

compliance costs will crowd out precisely the small, grassroots speakers that 

are most vulnerable and rely most upon the Internet to disseminate their 

message. Conversely, removing the targeting requirement entirely will 

simply expand the scope of regulated communications, sweeping in 

discussions of key legislators, such as committee chairs, even where those 

conversations are not directed at constituents and are almost certainly not 

intended to affect electoral results. 

These concerns suggest caution. The Internet's role as a conduit for 

grassroots speech and association is delicate, and too-easily crushed by 

overzealous or ill-considered restrictions. In particular, Congress should be 

wary of burdening an enormous swath of Americans' grassroots political 

advocacy in the name of preventing, or attempting to prevent, relatively 

small foreign purchases. That concern is especially acute where such foreign 

meddling is already regulated under an unrelated statutory regime that does 

not burden Americans' First Amendment liberties. 

Thank you again for the opportunity to provide testimony on this 

important question. 

l2 384 u.s. 214. 218-219 (1966). 

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15 

Mr. HURD. Thank you, Mr. Dickerson. 

Mr. Chavern, you’re now recognized for your opening remarks. 

STATEMENT OF DAVID CHAVERN 

Mr. CHAVERN. Thank you very much, Chairman Hurd, Ranking 

Member Kelly, and members of the Subcommittee on Information 

Technology. Thank you very much for asking me to participate in 

today’s hearing. 

I represent the News Media Alliance, a nonprofit trade association representing nearly 2,000 news publishers across the United 

States. Our members include some of the largest global news organizations, as well as local newspapers focusing on the issues that 

impact the daily lives of citizens in every State and congressional 

district. 

Alliance members share a common mission: to inform society in 

an accurate, thoughtful, and responsible manner. Our member 

news organizations have long made substantial investments in 

high quality journalism to achieve that mission. 

Our journalists and publishers are also held to high standards, 

as detailed in the American Society of News Editors’ Statement of 

Principles and the Society of Professional Journalists’ Code of Ethics. Not only are we potentially liable for knowingly publishing 

something that’s false, our very brands are built on trust with our 

readers. 

Because of this, our commitment to truthful and accurate reporting has also informed our approach to advertising. Publishers have 

long played an important role in ensuring the integrity of the advertisements that appear next to their content. 

When it comes to political advertisements, the legal responsibility for complying with Federal Election Commission rules clearly 

falls on the advertiser. Nonetheless, news publishers have taken an 

active role in ensuring that proper disclosures are made and that 

all ads placed in our publications reflect the honesty and integrity 

that’s the foundation of our brands. 

As technology has evolved, publishers have carried forward our 

responsibility to provide accurate content and the internal controls 

that go with that to our digital products. These efforts are now 

much more difficult because of the growth of online platforms like 

Google and Facebook that act as intermediaries in the distribution 

of news content, and advertising. 

Publishers previously worked to ensure the integrity of both their 

content and the advertising that appeared next to it, but now we 

have less control over advertising because of programmatic delivery 

of ads through ad tech platforms. These challenges are largely 

caused by the massive growth and inability to control an ecosystem 

that was built with the specific intention of not exercising responsibility over the integrity of content or the advertising that sustains 

its foundation. 

This is exacerbated by the fact that Google and Facebook now 

control the distribution and monetization of online news and information. They are the top two sources of traffic for online news publishers. They also collect most of the revenue, with Google and 

Facebook receiving approximately 71 percent of all digital adverVerDate Nov 24 2008 14:27 Jan 08, 2018 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 H:\27762.TXT APRIL

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tising dollars in the United States last year, which includes political advertising. 

News publishers have worked tirelessly to respond to rapidly 

changing business models. My members now represent some of the 

most innovative and engaging digital publishers in existence, and 

we have created these new businesses without compromising the 

integrity of our journalism. 

It is time that Google and Facebook and other online platforms 

do their part as well. And while they have profited greatly from 

their immense market power, they have yet to accept really the full 

responsibility that comes with that position. 

When it comes to political advertising, Congress also needs to 

make the same adjustments that the rest of the economy is making 

and move away from a platform-specific perspective. My members 

deliver their news content wherever their readers want it: on 

desktops, in print, mobile devices, and even wearables. Within the 

bounds of the First Amendment, if Congress sees fit to impose requirements on certain kinds of political speech, then those rules 

shouldn’t be defined by the delivery platform. 

And as a corollary, Congress should revisit the need for current 

platform-specific requirements to see if they appropriately apply to 

our converged digital world. If Congress continues to legislate by 

platform, then technology will simply continue to outpace the rules. 

The Alliance believes that the FEC rules should be updated to 

require disclosures within an internet advertisement to identify the 

sponsor of an ad. Google and Facebook should also update their addriven business models and the opaque algorithms that accelerate 

the distribution of so-called fake news and viral messaging so that 

high quality, reputable content is elevated in search and news 

feeds. I believe that these changes would lead to a healthier journalism industry, a better informed citizenry, and a more united 

country. 

Thank you very much for your time. 

[Prepared statement of Mr. Chavern follows:] 


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Committee on Oversight and Government Reform 

United States House of Representatives 

"Oversight of Federal Political Advertisement Laws and Regulations" 

Testimony of David Chavern 

President and CEO 

News Media Alliance 

October 24, 2017 

Chairman Hurd, Ranking Member Kelly, and members of the Subcommittee on Information 

Technology: Thank you for inviting me to participate in today's hearing. 

News Media Alliance 

My name is David Chavern, and I am President and CEO of the News Media Alliance, a 

nonprofit trade association representing nearly 2,000 newspapers across the United States. Our 

members include some of the largest news organizations covering events around the globe, as 

well as local newspapers focusing on the issues that impact the communities and daily lives of 

citizens in every state and congressional district. Our members publish both online and in print. 

News Organizations Play an Important Role in Society 

Despite their varying footprints and formats, Alliance members share a common mission: to 

inform society in an accurate, thoughtful, and responsible manner. Our member news 

organizations have long made substantial investments in high-quality journalism and 

professional reporting to achieve this mission. 

Our members innovate to report and publish news in the modern online world. This is in no 

small part because journalists and publishers are held to a high standard. Reporters and editors 

strive to report the truth and if errors are made publish timely corrections. The principles are 

detailed in the American Society of News Editors' Statement of Principles and the Society of 

Professional Journalists' Code of Ethics. 

Not only are we potentially liable for knowingly publishing something that is false, our very 

brands are built on trust with our readers. Because of this, our commitment to truthful and 

accurate reporting has also informed our approach to advertising. Publishers have long played an 

important role ensuring the integrity of the advertisements that appear next to our content. 

When it comes to political advertisements, the legal responsibility for complying with Federal 

Election Commission (FEC) rules falls on the advertiser. Nonetheless, publishers have long 

taken an active role in ensuring that proper disclosures are made and that all ads placed in our 

publications reflect the honesty and integrity that is the foundation of our business. 
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Our industry has spent many years addressing the quality of content circulated in print, but with 

the advent of real-time information-sharing in the digital age and its ability to influence public 

opinion- including with milestone events such as elections around the world- readers are 

struggling with a current trend in which fake news and misleading advertisements are delivered 

in ways that are indistinguishable from fact-supported information with verifiable sources. 

Intermediation by Internet Platforms Has Harmed the Integrity of Content and 

Advertising 

As technology has evolved, publishers have carried forward our responsibility to provide 

accurate content-and the internal controls that come with it-to our digital products. These 

efforts are more difficult because of the growth of online platforn1s like Google and Facebook 

that act as an intermediary in the distribution of news content and advertising. 

Publishers previously worked to ensure the integrity of both their content and the advertising that 

appeared next to it. But now, we have less control over advertising because of programmatic 

delivery of ads through ad tech platforms. Google and Facebook have faced similar challenges 

themselves, and as a result, we have seen top household brands periodically pull their 

advertisements from these platforms. 

These challenges are largely caused by the massive growth and inability to control an ecosystem 

that was built with the intention of not exercising responsibility over the integrity of content or 

the advertising that sustains its foundation. This is exacerbated by the fact that Google and 

Facebook now control both the distribution and monetization of online news and information. As 

de facto gatekeepers for internet users seeking news and other information, they are the top two 

sources of traffic for online news publishers. They also collect most of the revenue with Google 

and Facebook receiving 71 percent of all digital advertising in the United States last year, which 

includes political advertising revenue. 

Yet despite this dominant-and highly profitable-market position, neither Google nor 

Faeebook have assumed the responsibilities that publishers once upheld to ensure that the 

integrity of online advertising matches the integrity of our content. 

The market dominance of Google and Face book has coincided with the proliferation of so-called 

'·clickbait" and "fake news." This approach to monetization provides financial fuel to 

questionable content. A lot of 'fake news" is produced simply because it makes money. 

The perpetuation of fake news and false information undermines society's knowledge base and 

public discourse for a healthy democracy. This is equally true with advertising that influences 

public opinion, and is virally distributed by opaque algorithms used by search and social 

platforms. 
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The Online Platforms That Created This Problem Should Be the Ones to Fix It 

This business model is not one that publishers chose, but we have nonetheless worked tirelessly 

to change our operations to respond to its demands. And we have done so without compromising 

the integrity of our journalism. It is time that Google, Facebook, and other online platforms do 

their part as well. 

While they have profited greatly from their immense market power, Google and Facebook have 

yet to accept the responsibility that comes with their position. Voters and consumers should no 

longer have to suffer from unreliable information because it is profitable, while producers of 

content continue to hold ourselves to a higher standard. 

It is now time that Google and Facebook be asked to make the same commitments as publishers 

and modernize their platforms to help stem the flow of misinformation-a problem that is largely 

of their own making. 

The Alliance believes FEC rules should be updated to require disclosures within an internet 

advertisement to identify the sponsor of the ad. These rules apply to every other medium, and 

there is no longer a justification for exempting the internet here. More importantly, Google and 

Facebook should update their ad-driven business models and the opaque algorithms that 

accelerate the distribution of "fake news" and viral messaging so that higher-quality, reputable 

content is elevated in search and news feeds. 

I believe these changes would lead to a healthier journalism industry, a better-informed citizenry, 

and a more united country. 

Thank you for your time. 
20 

Mr. HURD. Thank you, sir. 

Mr. Goodman, you’re now recognized for 5 minutes. 

STATEMENT OF JACK N. GOODMAN 

Mr. GOODMAN. Thank you. 

Good afternoon, Mr. Chairman, Ranking Member Kelly, and 

members of the subcommittee. My name is Jack Goodman. I am 

pleased to present testimony on political advertising. Although I 

have decades of experience working with broadcast stations on political advertising, I do not appear today on behalf of any present 

or former client, and the views I express are entirely my own. 

Broadcasters have long been considered America’s most trusted 

source of news, far more than any other medium. However, broadcast advertising involving politics is subject to detailed regulations. 

These regulations affect what ads stations must accept, the information about sponsors they must obtain and disclose to the public, 

and the prices they charge for political ads. 

In my experience, stations take their compliance efforts very seriously. The FCC’s political broadcasting staff is exceptionally helpful, but even experienced broadcasters and their counsel frequently 

encounter questions as to which no clear answer exist. 

Disclaimer, as I will refer to it, is the information that must be 

included in ads about their sponsor. These are often referred to as 

sponsor ID requirements. Disclosure refers instead to requirements 

for sponsors of political advertising to reveal who they are and who 

determines their policies. 

Both the FCC and the FEC have rules governing aspects of both 

disclosure and disclaimer. Both agencies have sought to avoid conflicting regulations. And very importantly, both believe that broadcasters and their employees should not be required to serve as unpaid government enforcement agents or as unofficial private investigators. 

The FCC disclaimer rule for all political advertising is that the 

ad must include a statement saying either ‘‘paid for’’ or ‘‘sponsored 

by’’ whoever is actually writing the check paying for it. These disclaimer rules limit the type of ads that stations can sell. Short messages cannot be used because a disclaimer will not fit. Thus inflexible disclaimer rules can prevent the use of some formats for political speech. 

Turning to disclosure, broadcasters and cable systems must 

maintain public inspection files, including the political file. Television station public files are now online, and all stations will have 

their files online by next March. For candidate buys, the station is 

required to disclose the candidate, the requested schedule, and the 

cost of the ads. 

Disclosure requirements for noncandidate ads, which include 

both independent expenditures relating to elections and ads about 

issues or referenda, are more complex. The rules require detailed 

disclosure for any ad that communicates a political matter of national importance. The act explains that these include references to 

a legally qualified candidate, any election to Federal office, or a national legislative issue of public importance, and this definition is, 

to say the least, unclear. For example, is reference to a legally 


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qualified candidate intended to encompass issue ads about State 

and local races? 

Determining what is a national legislative issue can also be challenging. If Congress is considering a gun control bill and a separate 

gun measure were introduced in a State legislature, would an ad 

opposing the State bill be subject to expanded disclosure? 

The requirements that issue advertisers disclose a sponsor’s officers and the issues in the ad are also difficult to enforce. Some ad 

agencies simply refuse to provide the requested information. Stations infrequently receive orders for issue ads that do not identify 

any individual or, even if the station insists, are given only one 

name. 

Stations face similar problems in getting accurate information 

about issues in an ad. The rule is itself ambiguous. For example, 

if there are issue ads next year opposing Senator Kaine’s reelection 

in Virginia, is ‘‘reelection of Senator Kaine’’ an adequate description of the issue? And what if an ad discusses more than one issue? 

Does each one need to be disclosed? 

Another problem can arise if time is reserved in advance and the 

advertiser does not decide what specific issue to address until just 

before the ad runs. 

Because of these problems, even the most conscientious stations 

have great difficulties in obtaining the information that is supposed 

to be in the political file. 

In conclusion, experience with the FCC’s political broadcasting 

rules is instructive. Any new rules applicable to broadcasters or 

other media need to be flexible to be adapted to new and varying 

speech formats. 

And if new disclosure requirements are created, the responsibility for collection should not be placed on the media but instead 

on a government agency with authority to interpret the rules, investigative resources, and the power to impose sanctions for noncompliance. 

Thank you very much. 

[Prepared statement of Mr. Goodman follows:] 


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Testimony of 

Jack N. Goodman 

before the House Subcommittee on Information Technology 

of the Committee on Oversight and Government Reform 

October 24, 2017 

Good Afternoon Mr. Chairman, Ranking Member Kelly, and Members of 

the Subcommittee. My name is Jack Goodman. I am pleased to present testimony 

on disclosures and disclaimers involving political advertising. 

I have advised radio and television stations about political broadcasting 

issues for several decades, both in private legal practice and in the Legal 

Department of the National Association of Broadcasters (NAB). I have spoken 

about political broadcasting issues to numerous groups of both broadcasters and 

communications attorneys. 

My purpose today is to provide the Subcommittee with information on the 

rules that apply to political advertising on radio and television stations and on cable 

systems as background to your consideration of advertising on various internetbased platforms including social media. I will focus on the rules and policies 

established by the Federal Communications Commission (FCC). Although I am 

happy to answer questions about other FCC rules concerning political advertising, 

my testimony will explain FCC requirements for disclosure and disclaimers in 

political advertising. 

First, I think some context is appropriate. Broadcasters have long been 

considered the most trusted source of news by Americans. Far more than any other 

medium, broadcast advertising involving politics is subject to detailed government 

regulations. These regulations affect what ads stations must accept, the 

information they must obtain from advertisers and must disclose to the public, and 

the prices that they charge for political ads. The rules are complicated; the Federal 

Communications Bar Association typically sponsors two updates on the political 

rules every election year for its members; many state broadcast associations 

sponsor political advertising rule update sessions for their members, and many 

station groups require their managers to attend sessions to learn about the rules 

every election year. Cable systems must comply with some of these rules; no other 

competing medium faces any of them. 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page2 

In my experience, most stations take their compliance responsibilities very 

seriously, but find application of the rules to widely varying situations difficult. 

For me and my colleagues in the broadcast bar, election seasons are among our 

busiest periods, and the FCC's political broadcasting staff- which does a truly 

excellent job of providing real-time help when candidates and stations do not agree 

is available almost any time in the months before elections. But as I will 

describe, the experience broadcasters have with these rules shows that Congress 

should be careful in imposing difficult new regulations on media platforms. 

Turning to the rules, disclosure, as I refer to it, involves requirements for 

sponsors of political advertising to reveal who they are and who determines their 

policies. Disclaimer refers instead to the information that must be included in 

particular ads about their sponsor. Those rules are often referred to as "sponsor 

ID" requirements. 

Both the FCC and the Federal Election Commission (FEC) have rules 

governing aspects of both disclosures and disclaimers. For many years, the two 

agencies have generally sought to avoid undue interference in each other's 

jurisdiction. Thus, in general, rules specifically relating to ads on broadcast 

stations or on cable are FCC rules, while rules relating to a wider range of political 

advocacy are established by the FEC. There is, of course, some overlap, but 

importantly, both agencies have concluded that broadcasters and their employees 

should not be required to serve as unpaid enforcement agents or as unofficial 

private detectives to determine the actual source of funds used to pay for political 

ads. 

Disclaimers 

The FCC's basic disclaimer rule for all advertising for a candidate or which 

involves a controversial issue of public importance is that the advertisement must 

include a statement at the beginning or end (unless the ad is longer than five 

minutes, in which case the disclaimer must be aired at both ends) saying either 

"paid for" or "sponsored by" whoever is actually paying for the ad. Thus, informal 

disclaimers such as "brought to you by friends of Joe Smith" are not acceptable 

unless "Friends of Joe Smith" is the name of Mr. Smith's official campaign 

committee. 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page 3 

In television ads, the disclaimer must be visual, must be displayed for at 

least four seconds, and must be in letters that are at least four percent of the screen 

height. Radio ads, of course, include only an audio disclaimer. 

For any candidate to obtain the discounted candidate rate, or "lowest unit 

charge," the candidate's identifiable voice or picture must be in the ad, but that 

appearance does not have to be in the disclaimer. For candidates for Federal 

office, however, the Bipartisan Campaign Reform Act of2002 (BCRA) created a 

condition on their right to the "lowest unit charge." To qualizy for the reduced 

rate, federal candidates must certify that the ads they run will either not refer to an 

opposing candidate or will include a statement by the candidate stating that he or 

she approved the broadcast. In television ads, that statement must also be 

accompanied by a picture of the candidate. Although the "I'm Joe Smith and I 

approved this message" disclaimer is only required by the FCC if a candidate's 

message discusses an opposing candidate and the candidate sponsoring the ad 

wants the candidate discount, the FEC effectively requires the same message for 

advertising by any Federal candidate. Thus, this type of disclaimer has become 

ubiquitous in candidate advertising and is often included even in ads for state and 

local candidates which are not subject to either FEC rules or the BCRA condition 

on the candidate discount. 

The disclaimer requirements effectively limit the type of ads that radio and 

television stations can sell to political advertisers. Short messages such as 

sponsorships or mentions, which are sometimes bought by commercial advertisers, 

cannot be used by political advertisers- whether candidates or issue advertisersbecause the disclaimer cannot be accommodated in the short message. For the 

same reason, although stations generally must offer to candidates all types of 

advertising they provide to commercial advertisers, stations do not have to offer 

candidates formats which could not include a disclaimer. 

It should be noted that the disclaimers I have discussed are required by the 

FCC, and the responsibility for including an accurate disclaimer in each ad is 

imposed upon broadcasters. There are additional disclaimer requirements that may 

apply to specific types of ads that are imposed under FEC rules. Those 

requirements apply to candidates or other advertisers. Stations are not required to 

examine proposed ads to make sure they include those FEC-mandated disclaimers, 

although I understand that many stations inform prospective advertisers if they 

notice that an ad fails to comply with FEC rules. NAB has put together a chart 

showing the various sponsorship identitieation rules, the ads to which they apply, 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page4 

and whether they are imposed by the FCC or the FEC. A copy of that chart is 

attached to this testimony. 

Disclosure Rules 

Turning to disclosure rules, broadcasters and local cable systems must 

maintain public inspection files where the public can view documents relating to 

their operation. A key part of the public inspection file is the political file. All 

television stations now must have online public inspection files which are 

maintained on the FCC's website and are accessible by anyone over the internet. 

The FCC has also mandated that radio stations and cable systems transition to 

online public inspection files. Currently, only large cable systems and radio 

stations with more than five employees and which are in the 50 largest radio 

markets must keep their public files online. By March I, 2018, every radio station 

and cable system will have to maintain an online public inspection file, at least for 

information created after that date. 

What information stations must collect and place in their public inspection 

files depends on whether the advertisement is placed on behalf of a candidate or a 

candidate's authorized committee, or on behalf of an independent committee or 

issue advertiser. For non-candidate ads, the disclosure requirements also vary 

depending on whether the message relates to what BCRA described as "a political 

matter of national importance." 

Although the FCC does not prescribe a particular form of agreements for 

political advertising, many, if not most, stations use the set of Political Broadcast 

Agreements published by the National Association of Broadcasters. Its current 

edition is commonly referred to as "PB-18." A copy of those forms is attached. 

They were designed to capture the information the FCC requires be placed into the 

political file. 

When it adopted the online file rule, the FCC clarified that no disclosure of a 

request to purchase time would be required until a campaign makes a request for a 

specific schedule of ads; general requests for availabilities or discussions about "a 

general array oftime" do not require disclosure in the political file. 

For candidate advertising buys, the purchaser is required to disclose the 

candidate for which the time is sought, the office the candidate seeks in a particular 

election, the schedule that is requested, and the amount to be paid for the ads. The 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page 5 

buyer is also asked to state the source of payment for the time and to represent that 

the purchaser is either a legally qualified candidate or an authorized committee for 

such a candidate, and to provide the name of the treasurer of the candidate's 

authorized committee. Federal candidates, as explained above, also are asked to 

provide the certification about references to opposing candidates required by 

BCRA to qualifY for the candidate discount rate. 

In general, few problems seem to arise in connection with candidate 

disclosures. The most common issue in my experience is in determining whether 

the entity placing the ad is in fact an authorized buyer for the campaign. One 

national candidate in the 1990's instructed their time buyer not to provide any 

information demonstrating that they were an authorized purchaser to stations, 

which resulted in delays in their schedules being placed and disputes over whether 

the ads were entitled to the candidate discount rate. 

The FCC also recognizes that information about when specific spots actually 

were broadcast is generally not assembled until a station issues invoices or 

confirmations, generally once a month. Once those arc available, they must be 

placed into the station's political file. Before that, stations must make personnel 

available on request to confirm when spots actually aired. 

Disclosure requirements for non-candidate ads, which include both 

independent expenditures relating to elections, and ads about issues or referenda, 

are more complex. BCRA established detailed disclosure rules for issue 

advertising that "communicates a political matter of national importance." The 

Act explained that this includes at least (1) references to a legally qualified 

candidate, (2) any election to Federal office, or (3) a national legislative issue of 

public importance. This definition is less than perfectly clear and results in 

periodic uncertainties. For example, is the inclusion of references to a "legally 

qualified candidate" intended to encompass issue ads about state and local races? 

Candidates in those races are "legally qualified," but since BCRA's exclusive 

focus in every other part of the law was on Federal candidates and races, most 

stations and their lawyers construe it to apply only to candidates for Federal office 

(which then makes the second element of the definition superfluous). The third 

element- a national legislative issue of public importance also leads to 

questions. If, for example, Congress is considering a gun control measure, and a 

separate gun control measure were introduced in a state legislature, would an ad 

opposing the state gun control bill be subject to the BCRA expanded disclosure 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page 6 

obligations? The FCC has not clearly addressed these questions, and stations often 

have to ask legal counsel to decide how to characterize an ad. 

If an issue ad does not communicate "a political matter of national 

importance," FCC rules require that the station include in the public file a list of 

the officers, directors, committee members or other individuals who direct the 

activities of the sponsoring organization. 

For issue ads that do fall within the BCRA definition, much more 

information must be provided. Stations must report that ads were run by a 

particular organization, and like candidate ads, must disclose the number of ads 

broadcast and the times they were aired, as well as the amounts paid by the 

advertiser. They are also directed to include in the file a list of the executive 

officers, or executive committee members or board members of the sponsor, 

although the FCC has ruled that, unless they are presented with extrinsic evidence 

that the identity of the stated sponsor is misleading, they are not required to look 

behind the sponsor's identification of itself. Stations are further required to include 

for each such issue ad, the names of any legally qualified candidates referred to or 

the office being sought, and/or the issue to which the ad refers. 

The latter two requirements- disclosure of the members of the sponsoring 

organization and the issues being addressed- have been problem areas. Some 

agencies that place issue ads refuse to complete the current NAB political 

agreement forms, and instead insist on filling out earlier editions of the NAB forms 

which asked for less information, or instead use their own form or leave out 

information entirely. Thus, stations not infrequently receive orders for issue ads 

that do not identifY any individual at the sponsor, and even if the station insists, are 

often given only one name, which is typically the treasurer. If a station asks for 

more information, they often are told that the treasurer is the only official or at 

least the only one that the agency knows about. 

And while there are repeated efforts to require stations to determine not only 

who the stated advertiser is, but also who may be contributing to an advocacy 

group, the difficulties stations have in obtaining even contact and other basic 

information about the stated advertiser should discourage efforts to require them to 

obtain the names of donors. Not only will advertisers and their agencies be 

reluctant or unwilling to provide that information, but even if some information is 

obtained, stations have no way to determine if that information is accurate or 

complete. 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page 7 

Stations face similar difliculties in getting accurate information about the 

issue to be addressed in ads. To be sure, unlike the list of executive officers, the 

issue disclosure requirement is far from clear. For example, if the National 

Republican Senatorial Committee places ads next year opposing Senator Kaine's 

reelection, do they also need to provide a description of issues other than 

"reelection of Senator Kaine"? And what if an ad discusses more than one issue; 

does each one need to be disclosed? Another problem can arise if advocacy groups 

reserve time well in advance and do not decide what specific issue to address until 

just before an ad runs. The FCC last year cited some stations for failing to obtain 

sufficiently specific information about the issues addressed in ads they aired, but 

the FCC later withdrew that decision, and these issues remain open. 

Because of these problems, even the most conscientious stations have great 

difficulties in making sure that issue advertisers have fully disclosed the 

information BCRA requires to be placed in the political file. Thus, both the FCC 

and the FEC are correct in their conclusion that stations and their staffs should not 

be expected to act as government agents or to conduct investigations of their 

prospective advertisers. And while it is easy to say that stations could simply 

reject ads from uncooperative advertisers or agencies, doing so would restrict 

advocacy groups ability to reach voters, and broadcasters -who are fully 

committed to the First Amendment- should not be placed in the position of 

restricting speech. 

Station Control over Ad Content 

One short word about the content of political advertisements. The 

Communications Act bars stations from censoring uses by candidates. Thus, even 

if a candidate ad is untrue or contains libelous or slanderous material, stations 

cannot require the ad to be edited or refuse to air it. And because stations have no 

editorial authority, the Supreme Court has held that they cannot be held liable for 

the content of candidate ads. Issue ads, on the other hand, do not have the same 

protections. Stations can refuse to take them because of their content or may 

require them to be edited, and stations can be sued because of the content in issue 

ads. On the other hand, stations are not expected to be guarantors of the accuracy 

of every statement in an issue ad. 

Stations frequently receive demands from candidates that they cease airing 

an ad which the candidate believes is inaccurate. If the ad is not sponsored by the 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page 8 

opposing candidate, stations often ask the advertiser to provide support for the 

claims in the ad, and then either evaluate the ad themselves or often ask counsel for 

their opinion. Often, the answers are not clear since a glass may be described as 

half-full or half-empty and both statements arc at least technically accurate. But 

many stations, after evaluating ad claims, have declined to run the ads or required 

that they be edited to remove false or misleading claims. That process, as you 

might imagine, is difficult for station personnel and expensive. 

Conclusion 

Experience with the broadcast and cable political broadcasting rules I think 

is instructive going forward. With respect to disclaimers, given the increasing 

variety of formats for political speech, and with the prospect that the formats we 

know now may be replaced by others, a key element in any new regulations must 

be flexibility. Thus, rather than specifYing what information must be disclosed in 

online or other political programming and the format that must be used, legislation 

should establish general goals and objectives and recognize that the means of 

achieving them will vary depending on the format and platform involved. That I 

believe requires delegation of the task of creating specific rules to an agency which 

can adapt the requirements to differing forms of political speech as they arise. 

With regard to disclosures, if Congress concludes that the experience of the 

last election cycle justifies obtaining more information about political speakers' 

membership and financing, the Supreme Court has continued to hold that 

disclosure requirements are not barred by the First Amendment. But enforcement 

of disclosure obligations should not be placed on private parties which lack 

resources to investigate answers or the power to compel responses. Instead, if such 

obligations are established, the responsibility for ensuring the completeness and 

accuracy of disclosures should be placed on a government entity and that entity 

should then be empowered to impose sanctions on parties that fail to comply with 

those obligations. 

Thus, for example, Section 9 of the bill proposed this week by Senators 

McCain, Klobuchar and Warner, which would require media providers- including 

broadcast stations and cable systems- to "make reasonable efforts to ensure that" 

political advertisements "are not purchased by a foreign national, directly or 

indirectly," would be difficult to apply in practice. How far would the ban extend; 

would for example the fact that a donor to a group is married to a Canadian citizen 

prevent that group from running ads? How would the provision apply to public 
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Written Testimony of Jack N. Goodman 

October 24, 2017 

Page9 

companies that may have some foreign shareholders, or a few non-citizens on their 

boards? 

Putting aside these questions about scope, presumably, ifthis were enacted, 

broadcast stations and other media platfonns would ask each issue advertiser to 

certifY that their membership or financing does not include foreign nationals. If 

the answer is "no," as might be the case if a foreign country were attempting to 

influence an election, what would be the station's obligation? Would it be allowed 

to take that statement on faith and run the ads? Would it be obligated to 

investigate, and if so, what resources could it employ, particularly ifthe 

membership of the organization were not required to be disclosed by other 

agencies? And if the response to the question later proved to be false, would the 

media company bear responsibility for accepting the ads, or would there be some 

means of punishing the company that provided a false certification? 

These questions I believe indicate that, if Congress considers new disclosure 

rules, the interpretation and enforcement of those rules should not be assigned to 

private parties, but instead to a government agency that has authority to interpret 

the rules, investigative resources, and the power to impose sanctions for false 

reporting. 

Thank you. I will be happy to answer any questions. 
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SPONSORSHIP IDENTIFICATION AT-A-GLANCE 

I 

Is this a "USE" by a federal candidate or the 

federal candidate's authorized committee? 

YES I NO I 

I I Does the programming advocate the I election or defeat of a federal candidate or I State/Local candidates and I solicit any campaign contributions? Third Party/Issue Advertisers 

I 

c~ I Does the programming advocate the electon or I YES I defeat of a federal candidate or so!ldt any campaign 

contributions? 

Radio I TV I / 

""' I I YES I NO Federalcand!datesand/orthe Federa!candidatesand[orthe 

candidate's authorized candldate'sauthorlzed.comm!ttee '\ comm!tt~ must ensure ~at: mustensurethat: thepotitlcal 

The Pf/Utlca! programming programmlngldent!flesthe Programming purchaser Is responsible for Includes an audkl statement candidateonwhosebeha!ftlme 

by the candidate IdentifYing wasp\lrchased,statethatthe ensuring that the spot: hlmself/herselfandstat~ng candidate approved the 1) States that the programming is not thatthecandldateapproved broadcast,andstatethatthe authorized by any federal candidate, ruJl! thebroadcastandthatthe broadcasthasbeenpaldforby 

candk:late and/or the thecand!dateand/orthe 2) Includes the aural statement " __ is candidate's authorlw1 candidate's authorized responsible for the content of thls advertising1

' 

committee has paid for the committee. ThiS can be achieved (FEC enforced} broadcast. (!fthebroadcast by one of two ways: 

mferstoanopoos!ng 1) Thecandklatemak:lngthe 

candldate In any manner, It statementlnanunobscured,fuff- musta!soidentlfYtheofflce screenv!ew (at least SO%); or 

being sought). 2) Acandldatevolce-over, 

(FEC enfon:ed) accompanied by a clearly 

!dentiflablephotographorslmUar 

Image of the candidate. 

I ~ 

Tht!remustalsobeawrltten I Does the programming refer presentation of the same 

to an opposing candidate for statementattheertdofthe 

the same office? pol!tka! programming "In a 

clearly readable man11er with a 

~ ~ reasooabledegreeofcolor 

contrast between the background 

and the printed statement, for a 

perlod of at least four seconds." (FEC enfoteed} 

For Radio FMTt!levl61tm 

Federal candidates Federalcandldalesand/or 

and}ortheeandldate's th.ec..,.,dldute'sautl!Qf!z~d 

authorlzedcommlttee (;llmmltteemt!Stensure 

GJ mustensurethat,at !hat,attheernlofthe 

thee!'ldofthe ~lltkalprogrammlng,and 

foramlnlmumoffoor politiCal programming, Mconds,thereffiactearly and therelsanaudlo identlllab!epllottlgraphk=or statementvokedby slmlli'!rrmageotthe 

the candidate 

I 

spo'ISOTlngcmdklatewl>lle Identifying him or s!moltar~eoustyadear!y 

herself, the office readabieprln!edstatement 

OO!tlflsought,Md tsdlsp!ayedstatlngthattlw 

thatthecand!datehas candldatehasapprovedthe 

'""""""" btoalkasta!ldthatthe 

""""""· cam:l1dattl'sauth011l:ed 

{&eftA Candidate commttteepaldforthe 

btoadtast, Requlrement} (BCAA candidate Reqtllrement) 

~ l - In order for federal Prior to airing -Stations must ensure that candidates to receive the potttlca! programming must exp!!clt!y state that 

LUC, stations must It was "paid for" or "sponsored by" the entlty For state and local candidates, 

rece!ve federal candidate puxhasing the time. TV spots must have a visual stations should check with their 

certification at the time ID with letters at !east 4% vert!ca! he!ght (20 state election officials to 

programmlng !s I- standard nnes) and air at least 4 seconds against f-----+ determine if there are specific 

purchased, contrasting background, (FCC enforced) state or local sponsor lD 

requirements. 

Copynght 0 2014 by the Nattonal AssocJation of Broadcasters. May Not Be Cop ted, Reproduced, or Dtstnbuted W1thout Express Permtssmn. 
32 


KING-6430 with DISTILLERInsert offset folio 23 here 27762.023
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KING-6430 with DISTILLERInsert offset folio 24 here 27762.024

CONTENTS 

USING THE FORMS 

PB-18 NAB AGREEMENT FORM FOR POLITICAL CANDIDATE 

ADVERTISEMENTS 

PB-18 NAB AGREEMENT FORM FOR NON-CANDIDATE/ISSUE 

ADVERTISEMENTS 
34 


KING-6430 with DISTILLERInsert offset folio 25 here 27762.025

These political advertisement agreement forms have been designed to serve as actual 

contracts for the sale of political broadcast time and to satisfy FCC record retention 

requirements. 

Produced by NAB's Legal Department and Published by the NAB Publications 

Department. 

Copyright 2013 National Association of Broadcasters. 

ISBN# 0-89324-381-7 

Reproduction or publication of the contents. in whole or in part. without express 

permission is prohibited. No liability is assumed with respect to the use of the 

information contained herein. 

Additional copies of the Political Agreement Forms in paper or electronic format are 

available through NAB Services, 1771 N Street, NW, Washington, DC 20036-2800. For 

price information, please visit='-=-'-="'--"-'""'-"<=~· 
35 


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Acrobat Reader XI 

You must have version XI or higher of Adobe's Acrobat Reader to use 

these forms. If you do not have Adobe Reader XI or higher, you can 

download a free copy at: http://get.adobe.com/reader/ 

Acrobat Toolbar Functions 

When you install the Acrobat Reader and view a fill-in form, you will see a 

toolbar at the top of the document like this: 

You need to use only a few of these buttons to complete a fill-in form. The 

buttons you need to use are explained below: 

Pointer Tool 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

1 
36 


KING-6430 with DISTILLERInsert offset folio 27 here 27762.027

The will most likely be pre-selected the first time you use 

Acrobat Reader. This tool allows you to fill in the forms on your desktop. 

This tool is selected when the cursor appears in the shape of an arrow like 

the one pictured on the button above. 

With a fill-in form on the screen, move the pointer tool over a portion of the 

form to be filled in. You will notice that the pointer icon changes to a text 

icon, which looks like a capital I. This means that this is an area of the form 

that you are able to fill in using your keyboard. After you fill in that box, 

move your mouse to another field to fill it in. Note: you may also use the 

TAB button on your keyboard to advance to the next field. To mark a check 

box, move your pointer tool over a box and click your left mouse button. To 

unmark the box, move the cursor over the box and click again. 

Zoom Tools 

allow you to change the current view of the form 

displayed. Depending on your monitor size, you may need to use the+ orZoom Tool to get a better view of the form. You can also type a percentage 

into the white box to select an exact percentage zoom. 

Page Tools 

The help you navigate through the document. The number 

furthest to the right is the highest page number in the document. The 

number in the white box tells you what page you are currently on and you 

can edit that number to jump to a specific page. The arrow pointing 

upwards will move you one page forward on the current form, while the 

arrow pointing downwards will move you back one page on the current 

form. 

Printing the Forms 

To print a completed form, click on the print button: 

Saving the Forms 

Acrobat Reader does not allow forms to be saved. Complete the entire 

form, review and print prior to closing the file. Closing the file will erase all 

information filled in. 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

2 
37 


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NAB Form PB-18 Candidates 

(check applicable box) 

0 FEDERAL CANDIDATE 0 ST ATEILOCAL CANDIDATE 

1, ________________________________________________ __ 

being/on behalf of: ----------------------------------------------

a legally qualified candidate of the------------------------------

political party for the office of:--------------------------

in the ______________________________________________________ __ 

election to be held on:-------------------------------

do hereby request station time as follows: 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

1 
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KING-6430 with DISTILLERInsert offset folio 29 here 27762.029

NAB Form PB-18 Candidates 

I represent that the payment for the above described broadcast time has been furnished 

by: 

and you are authorized to announce the time as paid for by such person or entity. 

represent that this person or entity is either a legally qualified candidate or an 

authorized committee/organization of the legally qualified candidate. 

The name of the treasurer of the candidate's authorized committee is: 

This station has disclosed to me its political advertising policies, including: applicable 

classes and rates; and discount, promotional and other sales practices (not applicable 

to federal candidates). 

To Be Signed By Candidate or Authorized Committee 

D Accepted 

Signature 

To Be Signed By Station Representative 

D Accepted in Part 

Printed Name 

D Rejected 

Title 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

2 
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NAB Form PB-18 Candidates 

FEDERAL CANDIDATE CERTIFICATION 

(name '·--~~~--~~--~~~--~~~~--~~~--------­ of federal candidate or authorized committee) hereby certify that the 

programming to be broadcast (in whole or in part) pursuant to this agreement: 

Odoes 0 does not 

refer to an opposing candidate (check applicable box). I further certify that for the 

programming that does refer to an opposing candidate: 

(check applicable box) 

D the programming contains a personal audio statement by the candidate that 

identifies the candidate, the office being sought, and that the candidate has approved 

the broadcast. 

D the programming contains a clearly identifiable photograph or similar 

image of the candidate for a duration of at least four seconds, and a simultaneously 

displayed printed statement identifying the candidate, that the candidate approved the 

broadcast, and that the candidate and/or the candidate's authorized committee paid for 

the broadcast. 

signature of candidate or authorized committee 

printed name date 

Copyright© 2013 by the National Association of Broadcasters. May not be copied. reproduced or further distributed 

3 
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NAB Form PB-18 Candidates 

AGREED UPON SCHEDULE 

AFTER AIRING OF BROADCASTS: 

Attach invoices or Schedule Run Summary to this Form showing: 

1) actual air time and charges for each spot; 

2) the date(s), exact time(s) and reason(s) for Make-Good(s), if any; and 

3) the amount of rebates given (identify exact date, time, class of broadcast and 

dollar amount for each rebate), if any. 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

4 
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NAB Form PB-18 Issues 

do I, --------------------~------~----~------------------- hereby request station time concerning the following issue: 

This broadcast time will be used by:-------------------

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

1 
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NAB Form PB-18 Issues 

THIS PAGE MUST BE COMPLETED FOR PROGRAMMING THAT 

"COMMUNICATES A POLITICAL MATTER OF NATIONAL IMPORTANCE." 

FOR ALL OTHER ISSUE ADS, PLEASE GO TO PAGE 3. 

For programming that "communicates a message relating to any political matter of 

national importance," list the name of the legally qualified candidate(s) the programming 

refers to, the offices being sought, the date(s) of the election(s) and/or the issue to 

which the communication refers (if applicable): 

for the above described broadcast time has been furnished 

and you are authorized to announce the time as paid for by such person or entity 

(hereinafter referred to as the "sponsor"). 

List the chief executive officers or members of the executive committee or the board of 

directors below (or attach separately): 

For programming that "communicates a message relating to any political matter of 

national importance," attach Agreed Upon Schedule (Page 5) 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

2 
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NAB Form PB-18 Issues 

THIS PAGE MUST BE COMPLETED FOR PROGRAMMING THAT 

DOES NOT "COMMUNICATE A POLITICAL MATTER OF NATIONAL 

IMPORTANCE" 

and you are authorized to announce the time as paid for by such person or entity 

(hereinafter referred to as the "sponsor"). 

List the chief executive officers or members of the executive committee or the board of 

Copyright© 2013 by the National Association of Broadcasters. May not be copied. reproduced or further distributed 

3 
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NAB Form PB-18lssues 

TO BE COMPLETED FOR ALL ISSUE ADVERTISEMENTS 

The Sponsor agrees to indemnify and hold harmless the station for any damages or 

liability, including reasonable attorney's fees, that may ensue from the broadcast of the 

above-requested advertisement(s). For the above-stated broadcast(s), the sponsor 

also agrees to prepare a script, transcript, or tape, which will be delivered to the 

station at least before the time of the scheduled broadcasts. 

TO BE SIGNED BY ISSUE ADVERTISER (SPONSOR) 

Contact Phone Number 

TO BE SIGNED BY STATION REPRESENTATIVE 

D Accepted D Accepted in Part D Rejected 

Signature Printed Name Title 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

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NAB Form PB-181ssues 

AGREED UPON SCHEDULE 

Days Class 

AFTER AIRING OF BROADCASTS: 

Attach invoices or Schedule Run Summary to this Form showing: 

(1) actual air time and charges for each spot; 

(2) the date(s), exact time(s) and reason(s) for Make-Good(s), if any; and 

(3) the amount of rebates given (identify exact date, time, class of broadcast and 

dollar amount for each rebate), if any. 

Copyright© 2013 by the National Association of Broadcasters. May not be copied, reproduced or further distributed 

5 
46 

Mr. HURD. Thank you, Mr. Goodman. 

Mr. Rothenberg, you’re now recognized for 5 minutes. 

STATEMENT OF RANDALL ROTHENBERG 

Mr. ROTHENBERG. Chairman Hurd, Ranking Member Kelly, 

members of the subcommittee, thank you for the honor of testifying 

today. 

I would like to get straight to the point. Throughout my 11-year 

tenure, the Interactive Advertising Bureau has always stood for 

greater transparency and disclosure in the digital advertising supply chain regardless of whether the ads are political or commercial, 

because we believe transparency and disclosure are necessary for 

consumer safety and brand safety. So we strongly support efforts 

by this Congress and the Federal Election Commission to clarify, 

reconcile, and strengthen the disclosures required of political parties, candidates, and campaigns. 

But, as a representative of the economy’s fastest-growing and 

most dynamic sector, IAB also believes that our industry itself can 

go even further to implement supply chain protections that would 

fortify the trustworthiness of digital advertising in media, in political advertising and commercial advertising alike. 

IAB has a proven track record of taking and implementing responsibility across our 650-plus member companies. Together with 

multiple partner associations, we have created some of the media 

industry’s strongest self-regulatory mechanisms, programs that 

have been lauded by the White House, the Commerce Department, 

and the Federal Trade Commission. 

Through the Digital Advertising Alliance’s privacy program, we 

have provided consumers more control over their personal data in 

digital advertising environments. 

Through the Trustworthy Accountability Group’s anti-fraud registry and auditing program, we have worked closely with U.S. and 

overseas law enforcement bodies to root criminal activity from the 

ad-supported internet. We were warning about and guarding 

against Russian bot traffic years before it became a Washington 

concern. 

Our long experience with the diverse, innovative, and untidy 

world of advertising and media persuades us that in this industry, 

as in many others, there is a role for government regulation. But 

durable reform can only happen when the digital advertising community adopts tougher, tighter, comprehensive controls for who is 

putting what on its sites. 

Since its passage in 1971, the Federal Election Campaign Act 

has mandated disclaimers on all political advertising that expressly 

advocates the election or defeat of a candidate. But much of the 

fake news and fake ads at the center of the current storm did not 

engage in such overt candidate support. There were not a bunch of 

secretive Russian moles purchasing ‘‘Vote for Trump’’ or ‘‘Hillary 

for President’’ internet banner ads. 

Rather, there were sophisticated posts about social and political 

issues, some of which were made more widely available because the 

operators paid to amplify them in peoples’ social media feeds. Some 

of the scandalous messaging was not even placed for payment. 


KING-6430 with DISTILLER
47 

Both social influence advertising and unpaid advocacy fall outside the scope of Federal campaign disclosure rules. Americans 

have First Amendment rights to shout on street corners, put signs 

on their lawns, and post on social media without registering as political committees or reporting how much they spend on megaphones or smartphones. 

There is one more complex challenge in extending current disclosure rules to the internet. The traditional regulations from the 

FEC and the FCC require disclosure by campaigns and by the 

media running the ads, for these are the media receiving the insertion orders and payments for those ads. In that world, the media 

are in full control. No programming of any sort runs on a television 

station or in a magazine that hasn’t been vetted by those companies. 

In the digital world, by contrast, every page is cobbled together 

from multiple sources and assembled on the fly inside a user’s 

internet browser. Articles, videos, advertising, sponsored links, and 

social commentary come together from scores of server computers. 

Underneath the visible page, scores of other suppliers may be contributing measurement, ad verification, and auction pricing services. 

Only a portion of the advertising is sold directly by publishers. 

The greater portion is sold and distributed by third-party technology companies which do their work via automated systems— 

‘‘programmatically,’’ in the industry parlance. Legislative proposals 

that would require websites to field expensive disclosure mechanisms create burdens on struggling media organizations yet would 

barely capture the illicit political communication which is placed 

programmatically. 

This is why we would like the Congress’ support for strengthening the self-regulatory mechanisms we already have built by 

which digital media companies police their supply chains for bad 

actors and provide greater transparency into who is putting what 

on their sites. We can monitor the financing chain whether the 

paid support takes the form of conventional advertising or whether 

it shows up in less familiar formats. 

Thank you for the opportunity to appear before you today. 

[Prepared statement of Mr. Rothenberg follows:] 


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BEFORE THE 

SUBCOMMITTEE ON INFORMATION TECHNOLOGY 

OF THE 

HOUSE OVERSIGHT AND GOVERNMENT REFORM COMMITTEE 

HEARING ON 

OVERSIGHT OF FEDERAL POLITICAL ADVERTISEMENT LAWS AND 

REGULATIONS 

OCTOBER 24,2017 

TESTIMONY OF 

RANDALL ROTHENBERG 

PRESIDENT AND CEO 

INTERACTIVE ADVERTISING BUREAU 
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Chairman Hurd, Ranking Member Kelly, and Members of the subcommittee, thank you for the 

opportunity to testify today. I would like to get straight to the point: Throughout my 11-year 

tenure, the Interactive Advertising Bureau has always stood for greater transparency and 

disclosure in the digital advertising supply chain, regardless of whether the ads are political or 

commercial, because we believe transparency and disclosure are necessary for consumer safety 

and brand safety. Today's hearing focuses on a specific area where such transparency and 

disclosure is essential: our elections. The problems of undisclosed foreign influence in our last 

election demonstrate the need for greater transparency and disclosure in digital advertising, and 

we strongly support efforts by this Congress and the Federal Election Commission to clarity, 

reconcile. and strengthen the disclosures required of political parties, candidates, and campaigns. 

But as a representative of the economy's fastest-growing, most innovative, and most dynamic 

sector, lAB also believes that our industry itself can take more responsibility and go even further 

to implement supply-chain protections that would fortifY the trustworthiness of digital 

advertising and media, in political advertising and non-political advertising alike. 

lAB has a proven track record of taking responsibility and implementing it across our 650-plus 

member companies. Together with our partner associations the Association of National 

Advertisers, the American Association of Advertising Agencies, the Data & Marketing 

Association, and the Council of Better Business Bureaus, we have created some of the media 

industry's strongest self-regulatory mechanisms- programs that have been lauded by the White 

House, the Commerce Department, and the Federal Trade Commission. Through the Digital 

Advertising Alliance's YourAdChoiees privacy program and the Trustworthy Accountability 

Group's anti-fraud registry and auditing program, we have provided consumers more insight into 

and control over their personal data flows in digital advertising environments, and we have 

worked closely with U.S. and overseas law enforcement bodies to root fraud and other criminal 

activity from ad-supported digital media. Another coalition in which we are a partner. the 

Advertising Self-Regulatory Council, provides strong oversight of advertising content, 

particularly in children's advertising, retail advertising, and e-commerce. 

Our long experience with the vast, diverse, innovative, and untidy world of advertising and 

media persuades us that in this industry, as in many others, there is a role for Government 

regulation to assure the safety and security of consumers and the economy alike. But 

Government alone will not create greater transparency and safety in digital advertising 

environments. Real reform, durable reform, can only happen when the digital advertising 

community adopts tougher, tighter controls for who is putting what on and underneath its 

sites. 

Ten months ago, I stood in front of 1,200 of my industry's most senior executives. With talk of 

"fake news" swirling around the room, I opened my comments with this admonition: 

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''There's a linear connection belv.'een fake news and those trolls of digital marketing and 

media: click fraud, fraudulent non-human traffic, and the sources of ad-blocking. Each 

represents the failure of our supply chain- the same kind of supply chain failure we at 

lAB and our members have dealt with repeatedly and successfully over the years." 

·'Jfyou do not seck to address fake news and the systems, processes, technologies, 

transactions, and relationships that allow it to flourish, then you are consciously 

abdicating responsibility for its outcome the depletion of the truth and trust that 

undergird democratic capitalism." 

I urged our member companies and other stakeholders in the marketing-media ecosystem to usc 

common sense, technology systems, human oversight, and cross-industry self-regulation to 

police their own precincts- and their suppliers' trustworthiness. 

"You wouldn't want your daughter to ride in a car made with faulty tires." I said. "You wouldn't 

want your son to breakfast on a cereal sourced from bacteria-riddled grains. Then you shouldn't 

abet the creation, distribution, or monetization of untruthful, dangerous falsehoods to other 

people's' sons and daughters.'' 

Ten months later, we welcome the Congress's recognition of this same problem. But I want to 

urge you to think about it as broadly as we do. For the question is not merely how we get rid of 

illicit foreign influence in paid campaign advertising. It is how we create conditions for greater 

transparency, safety, and trust for all citizens for whom the advertising-supported internet is a 

necessary instrument in their daily lives. 

Today's hearing looks specifically at the FEC and how it has dealt with online advertising. It is 

occurring in the context of understanding foreign influence in the last election. From what we 

know today- and I want to be clear that lAB only knows what we have been reading in the 

newspapers- much of what apparently occurred was not what anyone would consider traditional 

political advertising. There were not a bunch of secretive Russian moles purchasing "Vote for 

Trump" banner ads on carefully chosen web sites, nor pseudonymous Kazakh cells buying 

"Hillary for President" pre-rolls on digital video platforms. Rather, there were sophisticated posts 

about social and political issues, some of which were made more widely available because the 

operators paid for their posts to be more prominently featured in peoples' social media feeds. 

This is important because it illustrates the opportunities for FEC reform, as well as the 

limitations. The FEC s rules apply only to certain kinds of communications. Since its passage in 

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1971, the Federal Election Campaign Act has mandated disclaimers on all political advertising 

that expressly advocates the election or defeat of a candidate. 

If you pay for an ad online that expressly advocates for candidates in this way, that ad is 

supposed to have a disclaimer on it saying who paid for it. There have been questions about how 

certain small ads are treated in the past, and this is part of what the FEC is considering in its 

rulemaking. We fully support modernizing, clarifying, and reconciling any contradictions in 

these rules- as many states have already done with respect to their electoral advertising rules 

to require click-through, hover over, and similar types of disclosure. Enhancing the existing 

framework by clarifying the responsibility of publishers, platforms, and advertisers in making 

available these disclosures to the public would create greater legal certainty across the industry 

and provide valuable information for FEC investigations. 

But the "fake news" and "fake ads" at the center of the current storm did not engage in such 

overt candidate support. So they were not, and based on current Supreme Court jurisprudence 

will not, be regulated under the Federal Election Campaign Act. Some of the compromised, 

controversial communication was indeed paid tor, but inasmuch as it contained commentary, and 

even outright falsehoods, about social conditions and political debates, such "social influence 

advertising" falls well outside the scope of Federal campaign disclosure rules. 

And some of the scandalous messaging was not even placed for payment. The FEC has taken a 

measured approach to this sort of unpaid online activity, because it recognizes the First 

Amendment rights of Americans to shout on street corners, put signs on their lawns, send letters 

to the editor, write blogs, post on social media, and email their friends and family without 

registering as a political committee or reporting how much they spend on postage, plasterboard, 

megaphones, computers or smart phones. Political speech is the most protected form of speech, 

because the founders considered robust dialogue among different parties and factions central to 

our representative democracy. The courts, up to and including the Supreme Court, have accorded 

ever-stronger protections to political speech over the years. The Supreme Court has limited the 

scope of the Federal Election Campaign Act to express advocacy. As much as we might dislike 

it, propaganda is protected speech- because from Tom Paine to Martin Luther King, we have 

understood that one American's propaganda is another American's principled faith. 

There is one more complex challenge in extending current disclosure rules to the internet. The 

traditional regulations from the FEC and the FCC require disclosure by campaigns, and by the 

media running the ads- for these are the media receiving the insertion orders and payments for 

those ads. In that world, the media are in full control. They sell the ads, vet the ads, and run the 

ads; indeed, no programming of any sort runs in a magazine or on a television network that 

hasn't been reviewed and approved by those companies. 

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In the digital world, every page is cobbled together from multiple sources, and assembled on the 

fly inside a user's internet browser. Articles, videos, audio, advertising, sponsored links, native 

ads, social commentary, and branded content can come together from scores of server 

computers; underneath the visible page, scores of other suppliers may be contributing 

measurement, ad verification, optimization, and auction pricing services. Only a small portion of 

the advertising is directly sold by publishers. The greater portion is sold and distributed by thirdparty technology companies, which do their work via automated systems "programmatically," 

in industry parlance. Legislative proposals that would require web sites to field expensive 

disclosure mechanisms create expensive burdens on struggling news organizations, yet would 

barely capture the bulk of the illicit political advertising, which is placed programmatically. 

In short, while we support greater transparency in paid political and issue advertising online, we 

believe that legislation alone will be unable to address the underlying need for greater 

transparency in the digital advertising industry without falling afoul of two centuries of First 

Amendment history and court decisions. Robust political speech- no matter who is paying for it, 

no matter how controversial it is, no matter who may be offering it- is the essence of American 

democracy, and must not be stifled. 

Yet at the same time, we must offer consumers and our economy protection from bad actors. The 

digital advertising industry doesn't just want to prevent bad ads from ending up on good sites; 

we also want to prevent good advertisers from ending up adjacent to (and inadvertently 

providing financial sustenance for) Isis recruiting videos. This is why we would like the 

Congress's support for strengthening the self-regulatory mechanisms we already have built- and 

continue to build- by which digital media companies will police their supply chains for bad 

actors, and provide greater transparency into who is putting what into their sites. We can monitor 

the financing chain, whether the paid support takes the form of conventional advertising, or 

whether it shows up in more contemporary or unfamiliar forms and formats, such as native 

advertising and branded content. 

Certainly, all industry participants must work with the U.S. government in its mission to enforce 

existing laws relating to political advertising, such as those that prohibit foreign interference in 

U.S. elections. But our industry standards can be tough, encompassing speech that may be 

legally permitted, but nonetheless offensive to common-sense norms. Our disclosure 

mechanisms can follow the money closely and carefully and attack the problem at its roots. 

Our self-regulatory approach already works to assign responsibility across the supply chain, as 

no one party in the ecosystem is capable of addressing this problem alone. Advertisers must have 

the responsibility of providing accurate disclosures. Publishers and platforms must disclose 

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information provided by advertisers. And all must work together to patrol the infrastructure of 

internet advertising, and make sure that bad ads don't end up on good sites, and good ads don't 

end up on bad sites. 

As Congress considers its involvement in this area, it should examine closely the digital 

advertising industry's successful implementation of consumer transparency and choice 

mechanisms that have helped inform consumers of the origin of the ads they sec, while 

protecting our constitutional right to free speech and enabling continued innovation in the 

internet ecosystem. 

Thank you for the opportunity to appear before you today. I am committed to working with this 

Committee and all members ofthe online ecosystem to solve the pressing challenges we are 

discussing, and assure that our democratic institutions can flourish unimpeded. 

6 
54 

Mr. HURD. Thank you, Mr. Rothenberg. 

Mr. Vandewalker, you’re now recognized for your opening statement of 5 minutes. 

STATEMENT OF IAN VANDEWALKER 

Mr. VANDEWALKER. Thank you. Good afternoon. On behalf of the 

Brennan Center for Justice, I thank the Subcommittee on Information Technology for holding this hearing. We appreciate the opportunity to share with you our recommendations concerning Federal 

political advertisement laws and regulations, particularly as they 

relate to the ability of foreign powers to interfere in American elections. 

The Brennan Center is a nonpartisan think tank and advocacy 

organization that focuses on democracy and justice and has studied 

campaign finance for 20 years, working to develop and defend effective and constitutionally sound policies. 

There are gaping holes in our regulation of paid political ads. In 

contrast to radio and television, much of the election spending on 

the internet is untouched by key regulations. These include the requirements to report spending on mass media ads that mention 

candidates in the period before an election, the ban on foreign nationals buying such ads, and the requirement that broadcasters retain public files of political ads. 

It’s time for this to change. The internet is only going to grow 

in its importance to politics. The $1.4 billion spent online in 2016 

was almost eight times higher than 2012. 

Failure to subject ads on the internet to the same disclosure regime as other media will leave the public without key information 

about who is trying to influence them, and it will allow more mischief from foreign adversaries like Russia’s meddling in 2016. 

The Honest Ads Act introduced in the Senate by Senators 

Klobuchar, McCain, and Warner, and in the House by Representative Kilmer, offers a promising framework to ensure such disclosure. Congress could also close other loopholes that allow secrecy 

and potentially foreign money, like spending by dark money organizations and foreign-owned corporations. 

These steps are surely needed. Investigations into the 2016 election have revealed a widespread, multipronged effort by the Russian Government to alter the course of public debate by injecting 

propaganda and divisive messages into the American political discussion. 

As has been mentioned, firms linked to the Kremlin bought thousands of online ads on several major platforms that were seen by 

millions of people. The ads have still not been released to the public, but they reportedly discuss political issues, including messages 

advocating the election of candidates, all while the Russians disguised their identity with fake profiles designed to look like they 

were controlled by Americans. 

The intelligence community is confident that Russia will be back. 

And, of course, we must watch for copycats like China, North 

Korea, and even ISIS. 

Most immediately, this challenge to the American people’s political sovereignty and the First Amendment values of transparency 


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and politics requires updating campaign finance laws for the internet age. 

Congress should include paid ads on the internet in the definition of ‘‘electioneering communications’’ from the McCain-Feingold 

bill, which requires disclosure of expenditures above $10,000 on ads 

that mention candidates in certain mass media within a specified 

period. This would have two benefits. It would expand the ban on 

foreign spending, and it would increase transparency around online 

ads, making information about who is paying for them publicly 

available. 

In addition, online platforms should be required to maintain public files of political ads. That would essentially extend to the internet the Federal Communications Commission’s requirement that 

broadcasters maintain a public file of political ads. 

And online platforms, along with other businesses that sell ads, 

should be required to make reasonable efforts to prevent political 

ads from being sold to foreign nationals. 

All of these elements are present in the Honest Ads Act. 

Moving beyond the internet, holes in campaign finance disclosure 

rules allow dark money organizations to spend on politics without 

revealing their donors, potentially hiding foreign sources of funds. 

In order to close the holes, Congress should enact the DISCLOSE 

Act. 

Another blind spot in campaign finance results from corporations’ 

ability to spend in elections. Congress should expand the ban on 

foreign election spending to domestic corporations substantially 

owned or controlled by foreign nationals, as Representative 

Raskin’s Get Foreign Money Out of U.S. Elections Act would do. 

Finally, these proposals, as well as existing laws, need vigorous 

enforcement. Yet deadlocks at the FEC have increased, and it has 

passed up chances to strengthen regulations. Congress can reform 

the agency, including by making the number of commissioners odd 

and requiring at least one member to be nonpartisan. 

Thank you, and I’m happy to answer any questions you may 

have. 

[Prepared statement of Mr. Vandewalker follows:] 


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Committee on House Oversight and Government Reform, 

Subcommittee on Information Technology 

United States House of Representatives 

Statement oflan Vandewalker 

Senior Counsel, Democracy Program, 

Brennan Center for Justice at NYU School of Law 

October 24,2017 

"Oversight of Federal Political Advertisement Laws and Regulations" 

On behalf of the Brennan Center for Justice, l thank the Subcommittee on Information 

Technology for holding this hearing. We appreciate the opportunity to share with you our studies 

and recommendations concerning federal political advertisement laws and regulations, 

particularly as they relate to foreign spending and the ability of foreign powers to interfere in 

American elections. The Brennan Center for Justice is a nonpartisan think tank and advocacy 

organization that focuses on democracy and justice. We work to ensure that our elections are 

conducted in a way that ensures all Americans can participate in a self-goveming democracy. 

The Brennan Center has studied campaign finance issues for 20 years, working to develop 

effective and constitutionally sound policies and advocating for them in the courts, legislatures, 

and administrative bodies across the nation. 

Political advertising is experiencing a shift toward spending on the internet, 1 which makes it easy 

and inexpensive to disseminate messages widely or with pinpoint audience targeting. Yet our 

laws have not been updated for this new era, leaving much political spending on the internet 

unregulated. Investigations into the 20 I 6 election have revealed a widespread, multipronged 

effot1 by the Russian government to alter the course of public debate by injecting propaganda 

and divisive messages into the American political discussion. Russian operatives bought 

thousands of ads discussing political issues here, reportedly including messages advocating the 

election of candidates. And they did so while disguising their identity with fake profiles designed 

to look like they were controlled by Americans. 

The potential for online ads to enable agents of a foreign government to pose as Americans while 

spreading propaganda creates risks for our democracy. American audiences can be misled about 

how popular an idea is with their compatriots and make decisions about which candidate to 

support, whether to vote, or even which facts to believe, all under false premises. 
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The intelligence community is confident that Russia will attempt to meddle in our elections 

again2 And of course, the threat is not limited to Russia. Moscow's efforts in 2016 may serve as 

a blueprint, enabling an unknown number of copycats interested in meddling in American 

affairs, whether it's China, lran, North Korea, or ISIS. As former Homeland Security Secretary 

Jeh Johnson put it, "the Russians will be back, and possibly other state actors, and possibly other 

bad actors. "3 

There are actions that Congress can immediately take to limit the opportunities for foreign 

governments to spend on election ads, and to ensure that Americans have the information they 

need to make informed decisions about what to believe and how to vote.4 We recommend 

legislation to accomplish the following: 

I. Require the same disclosure and disclaimers for online ads that the law currently requires 

for other mass media, and require that infonnation about political ads online is preserved 

in a database available to the public. 

2. Eliminate "dark money" spending by organizations that do not disclose their donors, 

which can be used to hide foreign expenditures on elections. 

3. Expand the ban on election spending by foreign nationals to include domestic 

corporations with substantial foreign ownership or control. 

4. Reform the Federal Election Commission to reduce the likelihood of deadlock by 

providing for an odd number of commissioners, at least one of whom is nonpartisan. 

I. THE POWER OF THE llliTERI'IET AJiiD RUSSIA'S ll'ITERFERENCE 

The internet has rapidly become a key focus of political advertising as it has become a bigger 

part of modern life. The $1.4 billion spent online in the 2016 election was almost eight times 

higher than in 2012. 5 Yet the internet poses unique challenges for open political discourse. 

Online, messages are cheap to produce and disseminate instantly to vast potential audiences 

across great distances without regard for political boundaries6 Anonymity is easy online, 

allowing deception about who is paying for ads. 

Moreover, many Americans have sorted themselves into political echo chambers, receiving their 

news online only from sources who share the same partisan allegiance. This, along with 

sophisticated ad targeting tools, makes it easier for political operatives to direct messages 

'Office of the Director ofNationallntelligcncc (ODNI), "Assessing Russian Activities and Intentions in Recent US 

Elections," Intelligence Community Assessment ICA 2017-01 D (20I 7), 

who is supporting a candidate gives voters information about what the candidate stands for. Buckley v. 

Valeo, 424 U.S. I, 66-68 (1976). And disclosure informs the public's decisions about how much trust to place in a 

message. Citizens United v. FEC. 558 U.S. 310, 371 (2010). 5 Sean J. Miller. "Digital Ad Spending Tops Estimates.'' '"""'"'P'"'!;''" 

72. 

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intended to foment discord to susceptible audiences, for example by attacking a candidate from 

the left in ads targeted to progressive users and from the right in messages aimed at 

conservatives. 7 

Micro-targeted advertising online has given rise to the "dark ad," which is seen only by a 

narrowly targeted audience, threatening to remove much of the political debate around elections 

from public view. Contrast dark ads with television commercials, which reach wide audiences 

and are subject to transparency mles, allowing journalists to fact-check claims and the wider 

public to hold speakers accountable for false or inflammatory rhetoric. R 

A. What Happened in 2016 

Russia· s attempts to influence the 2016 election took advantage of all these features of online 

media. They bought ads and promoted content through fake accounts pretending to be 

Americans. They crafted different messages for different audiences and used platforms' 

sophisticated audience targeting tools to increase the chances that propaganda would reach 

receptive audiences more likely to be swayed and to share posts 9 So far, internal investigations 

by Faccbook, Twitter, and Google have found Russian activity on the most popular platformsand no doubt the full story has yet to be told. 10 

The Kremlin's messages included attacks on and praise for specific candidates in the presidential 

election, although many seemed designed mostly to hmm the political establishment, which 

Russian agents attacked !rom both left and right. 11 Most of the ads Facebook discovered to have 

originated from Russian operatives "appeared to focus on amplifYing divisive social and political 

messages across the ideological spectmm-touching on topics from LGBT matters to race issues 

to immigration to gun rights." 12 

7 Rand Waitzman, The Weaponization q(b?fhrmation: The 1Veedjor Cognitive Securi(v, RAND Corporation. 2017, 

J· .. !illL:~~.t:ill)jj'Slm!J2!ii1c~:J.!::iLLlllQ~!o:I~:1.lJ1:tr.!l. 

Facebook during "Washington Post, September 6, 2017. 11 Dylan Byers, "Exclusive: Russian-bought Black Lives Matter ad on Facebook 

CNN, September 28, 20 1 7, !J.UJ2dLtr~?.'l':g.m!£QilL;~J_BJ•2j'lJ.!!!!:!llil~llis;l'Q<22!5•:lzlii.>~c.!i'~£i.:m•~l!~•I: 

lf'llL<lli'•lll.'lllill:?i.J!1!!1J; Josh 

!i~;~~~~~~£~~2~@Hl~2~~,~~~~~~~~ll: 

3 
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It appears that Russia-linked accounts bought political advertising on every major platfonn. 

Facebook found ad buys totaling $150,000 linked to fake accounts suspected to be controlled by 

Russian operatives, encompassing some 3,300 spots, although most of the times the ads were 

displayed occuned after Election Day. 13 Twitter detennined that accounts controlled by the 

Kremlin-linked network RT spent $27 4, I 00 on ads in 2016. 14 Google has yet to announce a price 

tag for the ads it found on Y ouTube, Gmail, and other services. 

This may seem like a drop in the bucket of sky-high presidential election spending, but 

Facebook's powerful ad targeting tools and the possibility for messages to be shared organically 

by users-or even go viral-can vastly expand ads' reach. 15 Facebook estimated that its Russialinked ads were seen by l 0 million people, and the ads were buttressed by related content 

organically shared by the same pages that may have reached tens or hundreds of millions more. 16 

Moreover, it's possible that the Russian ad buys reported so far are merely the tip of the 

iceberg-investigations are ongoing. 17 

Some of these ad buys were likely illegal, since they recommended voting for presidential 

candidates, and foreign nationals are banned from engaging in "express advocacy" that tells the 

public how to vote. 18 But, based on what Facebook has reported, many of the ads stopped short 

of express advocacy and so may not have run afoul of cunent law. 19 

''Carol D. Leonnig, Tom Hamburger, and Rosalind S. Helderman, "Russian firm tied to pro-Kremlin propaganda 

advertised on Facebook during election;· Washington Post, September 6, 2017 (reporting $100.000 worth of ads 

linked to Russian operatives and another $50,000 Elliot Schrage, "Hard Russian Ads 

Delivered to Congress."" Facebook. October 2. 2017. h~P$!Jl.~§L2.<!!IW~~]£~2Qll2.Q~"ll!u:s!::ill!~!9.!Jl~l:lillill!!L 

Adam Entous, "'Twitter finds hundreds of accounts tied to Russian operatives," 

Washington Post, September 28, 2017. 

upper the Russian pages 

it overcounts due to the fact that the Russians also created many fake accounts to follow their 

pages, inflating their apparent influence. David Karpf, "People are hyperventilating over a study of Russian 

propaganda on Facebook. Just breathe deeply."" Washington Post, October 12. 2017. 17 A political marketing experltold CNN that S I 00.000 spent on about 3.000 ads looks like a testing budget for a 

larger ad campaign. Donie O'Sullivan, "What Russian trolls could have bought for $100,000 on Facebook."" Cl'flv". 

7. 2017. l!tt.Jl::Limm.e_:::.c'ill!l,<:QI~m il't!QJJi~cW!i.'~!::m~Jt:trgl!::.'lilllY::£.Q\llli.::!?!'Y:J'ils£h9_9:~:.: 

(banning foreign nationals from election spending): II C.F.R. § I00.22 (defining express 

advocacy). 

19 Alex Stamos. Chief Security Officer. Facebook. "An Update On Information Operations On Facebook."" 

September 6. 2017. vast majority of 

ads run by these accounts or a particular 

candidate."). 

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B. The Post-2016 Response of Social Media Companies 

In recent months, in response to pressure from Congress and the public, social media platforms 

like Faccbook and Twitter have conducted internal investigations and promised changes to blunt 

the ability of foreign powers to spend in American elections. For instance, F acebook is building 

an "ad transparency" tool that will require additional human review and approval of ads that are 

targeted with reference to "politics, religion, ethnicity or social issues. "

20 In addition, when users 

see an ad run by a page, they will also be able to see other ads run by that page. Ads have to meet 

certain authenticity requirements (deprioritizing "clickbait" and ads that mask the tme origins of 

the link) and industry best practiccs 21 

Meanwhile, Twitter released a statement in September on their efforts to strengthen the site 

against "bots and networks ofmanipulation."22 First they collaborated with Facebook to identify 

corresponding Twitter accounts from the list of 470 accounts Facebook shared as spam and 

suspending them. They also tracked spending by the Russian state-controlled news network RT 

on ads targeting U.S. audiences. They removed tweets that were deemed attempts to suppress the 

vote. 23 

Nevertheless, almost a year after the election, there is much we do not know about the Russian 

ads, including what all of them said, who bought them, how much they cost, and how they were 

targeted. And platforms' voluntary efforts are not enough. Platforms are likely to adopt varying 

policies, with some worse than others. Platforms may not put enough effort into implementation 

or enforcement, or may apply mles inconsistently across users. And voluntary efforts ean be 

abandoned as soon as a scandal blows over. Instead, Congress should act to craft effective 

policies that will be enforced across the board. 

II. IMMEDIATE STEPS CONGRESS SHOULD TAKE 

Congress can strengthen America's defenses against foreign governments' covert use of massive 

social media campaigns to try to influence our politics. The threat is multifaceted and constantly 

evolving, so our solutions must be the same. Some key pieces of the puzzle are already on the 

table in existing legislation. To be sure, this problem demands a whole-of-society approach 

where government and private actors continually monitor the threat and craft effective solutions, 

but crucial safeguards are available now. Below we describe four actions Congress can take right 

away. 

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A. Update Campaign Finance Law to Cover Paid Internet Ads 

It's clear that the trend toward more political activity being conducted on social media---whether 

by foreign powers or the campaigns themselves-will continue24 But our campaign finance 

regime got its last significant update in 2002, an eternity ago in the online world. Much of the 

activity intended to influence elections on the internet today is untouched by key regulations. 

These include the requirement to report spending on mass media ads that mention candidates in 

the period before an election, the ban on foreign nationals buying such ads, and the requirement 

that broadcasters retain public files of political ads. 

As described below, Russian operatives seeking to influence last year's election spent money in 

the largely unregulated world of online political ads. To address this problem, the Brennan 

Center recommends increasing transparency and strengthening the ban on foreign spending. The 

most significant mechanisms to accomplish this are discussed below. in turn: ( 1) extending the 

definition of "electioneering communications" to paid internet ads, (2) requiring a public file of 

political ads online, and (3) requiring online platforms to make reasonable efforts to prevent 

foreign nationals from buying political ads. Together, these efforts would make more of what 

Russia did in2016 illegal. They would also increase public disclosure, giving the public and law 

enforcement more information to catch illegal foreign spending. 

!. Include Paid Internet Ads in the Regulation ofElectioneering Communications 

Congress should extend the rule to on line ads by including paid ads on the internet in the 

definition of "electioneering communications." During the 1990s, "sham issue ads" that attack or 

praise a candidate on some salient issue without explicitly mentioning the election became an 

increasingly popular way of attempting to influence elections while avoiding the regulatory 

requirements imposed on express advocacy. The 2002 McCain-Feingold law responded by 

creating the category of"electioneering communications," requiring disclosure of expenditures 

above $10,000 on ads that mention candidates in certain mass media like TV and radio within a 

specified window, such as 60 days before an election25 The problem today is that the internet 

was not one of the media included. 

Extending the rule to the internet would require expenditures on online ads mentioning 

candidates before an election to be reported, along with the name of the spender. Electioneering 

communications rules require reporting both the cost of ad placement and the cost of production 

when they together exceed $10.000. That could ensure transparency about the sources of 

spending on social media content where a significant amount was spent on production or 

targeting, even if the resulting message was placed for a very small fcc. It would not stop any 

messages from being shared, only require financial disclosure. And because of the spending 

threshold, it would not affect the typical social media user at all. 

24 Sean J. Miller. "Digital Ad Spending Tops Estimates," Campaigns & Elections, January 4, 2017. 

$1.4 billion in 

a 

§ 30104(1). The definition excludes news stories. 52 U.S.C. 

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Expanding the electioneering communications rule to paid internet ads would clarify that foreign 

nationals are banned from buying such ads. Currently, the law prohibits foreign nationals from 

spending money "for the purpose of influencing any election for Federal office. "

26 That ban has 

been interpreted to prohibit only express advocacy or its functional equivalent, leaving issue 

advocacy out27 A bright-line mlc like the electioneering communications definition would 

clarify and broaden the foreign national ban. 

Of course, agents of foreign governments willing to create fake social media profiles cannot be 

counted to refrain from spending merely because the law is clearer, or the ban on foreign 

spending expanded. Fortunately, an expansion of the electioneering communications definition 

would also make it easier to spot and prevent such spending. Electioneering communications 

rep01is require identifying information about the spender, like name and address, and they are 

made available to the public. Even if agents of foreign governments provide false information on 

an FEC filing, the public record would be valuable, and would provide the American 

government, media and public with an opportunity to investigate suspicious spending. In 

combination with other measures noted below, this could be an important countermeasure 

against illegal foreign spending. 

A bill that would accomplish much of what is recommended above has been introduced by a 

bipartisan group of Senators: the Honest Ads Act, sponsored by Sen. Amy Klobuchar (D-Minn.), 

Sen. John McCain (R-Ariz.), and Sen. Mark Warner (D-Va.)28 The House companion, H.R. 

4077, was introduced by Rep. Derek Kilmer (D-Wash.). The bill would extend the definition of 

electioneering communications to cover paid internet and digital ads 29 

2. Require a Public File of Political Ad~ Online 

Congress should also require more transparency about political ad buys online, beyond 

disclosing who paid for electioneering communications. To that end, as new media expert Daniel 

Kreiss of the U.N.C. School of Media and Journalism has proposed, online platforms should be 

required to maintain repositories of political ads that include the content of the ad as well as 

information about how it was targeted and who paid for it.'0 

This would address the problem of"dark ads" in political advertising. It would give the public 

the ability to hold politicians and the interests active in elections accountable if they say different 

52l.J.S.C. 9 30101(9)(A)(i) (defining "expenditure'");§ 30121 (prohibiting foreign nationals ti·om, inter alia, 

making expenditures). 27 See Bluman v. Federal Election Commission, 800 F. Supp. 2d 281,292 (D.D.C. 2011), a[('d, 565 U.S. 1104 

(2012) (interpreting the foreign national ban to prohibit express advocacy or its functional equivalent, leaving out 

advocacy). 

Byron Tau. "Proposed 'Honest Ads Act' Seeks More Disclosure About Online Political Acts;' Wall Street 

Journai, October 19. 2017, l.!!.ll2EiV£':~c.~!:~.\,;":!!E~.t:ti£~'.!2l:.\'J12g_tjiJls"-!r2!d!illi:i!.S~~S:E!!!.£1'"::£l.l~£J'£§.!~:.'lch£'!ll: 

was 

msc1o1me"' on the face of online messages to reveal to viewers who 

paid for the ad. 30 This requirement would be analogous to existing rules government television ads regulated by the Federal 

Communications Commission. See 47 C.F.R. § 73.1943 (requiring broadcasters to keep a publicly available file of 

requests for air time for political ads). 

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things to different groups of voters, or spread inflammatory rhetoric or falsehoods. 31 And, in 

combination with electioneering communications disclosures, could provide infonnation to 

regulators or law enforcement seeking out covert foreign spending. 

The Honest Ads Act, mentioned above, would require digital platfonns to maintain public files 

of ad buys that discuss elections or legislative issues. The provision adopts the definition of 

political ads currently used for television broadcasters' obligation to maintain public files. The 

database created by the bill would publish the content of the ad, the audience targeted, the 

timing, and payment infom1ation. 

Ad placements online can be very inexpensive. Faccbook reported that half of the Russian ads it 

found cost less than $3. To account for this, the criteria for including an ad buy in the public file 

must have a very low spending threshold, perhaps even requiring the inclusion of any purchase, 

no matter how low the price. 

3. Require Platforms to Work to Stop Foreign Political Ad Buys 

Companies that sell online political ads have a responsibility to try to keep foreign powers from 

using their services to interfere in American elections. Congress should require companies to 

make reasonable efforts to avoid selling political ads to foreign nationals. The Honest Ads Act 

includes a provision that would do this as well. 

In their retrospective investigations of the 2016 election, Facebook, Twitter, and Google have 

shown they have the ability to find foreign govemment activity. One key piece of the puzzle, no 

doubt, is tracing financial transactions. For example, companies can use credit card verification 

protocols to examine whether money originates in the U.S32 

Despite the availability of clues, the platfom1s were apparently sufficiently caught off guard by 

Russia's unprecedented boldness that they didn't conduct systematic searches for covert foreign 

activity before the election. A prospective requirement, especially in combination with the added 

transparency required by the provisions recommended above, would help prevent activity like 

Russia's 2016 election meddling. 

B. Eliminate Dark Money 

Unfortunately, the lack of regulation on the internet isn't the only place our campaign finance 

regime is vulnerable to foreign interference. Holes in disclosure rules allow "dark money" 

organizations to spend on politics without revealing their donors, potentially hiding foreign 

sources of funds. In order to close the holes, Congress should require any organization that 

spends on politics disclose its donors, as explained below. 

to use syslems. E.g., Stop 

Foreign Donations Affecting Our Elections Act. H.R. 1341. S. 1660. I 15th Con g. (20 17). Congress should consider 

an analogous requirement for platforms' political ad sales. 

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In recent years, Congress and the FEC have failed to update disclosure laws in response to 

Supreme Court decisions that expanded the opportunities for groups to spend on elections. This 

has given the green light to shadowy nonprofit organizations to spend as much as they want on 

politics without complying with transparency and source limitations imposed on political 

committees. 33 Secret spending has exploded, with more than $900 million in dark money spent 

on the last five federal elections, highly concentrated in competitive elections with the chance of 

affecting party control of a chamber of Congress or the presidency. 34 Secret spending has also 

increased in recent state elections, where a single big spender may be able to achieve especially 

great influence due to lower overall election costs. 35 It is unknown how much dark money 

derives from foreign sources. 

Dark money is possible because, under current law, disclosure requirements are pegged to the 

form an organization takes: if a group calls itself a political committee, it has to report the 

identity of all donors of more than $200. Groups that are organized as nonprofits under the tax 

code, however, are not required to report their donors, even when they engage in substantial 

political spending. These organizations can be formed with little more than a post office box and 

a meaningless name like "Americans for Refonn." Donors can give these dark money groups 

unlimited amounts out of public view. Then the group can give to political committees, or it can 

pay directly for ads, polling, voter mobilization activities, or other political expenditures. 

Fortunately, solutions are on the table. The DISCLOSE Act, versions of which have been 

introduced in Congress since 20!0, would eliminate dark money as we know it.J6 At its core, the 

legislation would require any group that spent above a threshold amount on elections to disclose 

its major donors of$10,000 or more. This would fix the problem that the law currently allows 

groups to choose to register as nonprofits rather than political committees in order to hide their 

donors. Under the DISCLOSE Act, the way a group organizes itself under the tax code is 

irrelevant; rather, it is the act of engaging in political spending that triggers disclosure 

requirements. 

In addition, the bill would crack down on the use of intermediary organizations to hide funding 

sources. Cun·ent law allows donors to hide their identity by funneling money through a secretive 

organization before it ends up in the account of the group that actually spends on politics. 

The DISCLOSE Act addresses this problem by providing that certain transfers of funds to 

political spending groups trigger donor disclosure. If one group gives funds to another with 

percentages 

percent in and 21 percent in 20 16). 35 Chisun Lee. Katherine Valde, Benjamin T. Brickner, and Douglas Keith, Secret Spending in the States, Brennan 

30 Center See, e.g 

for .. 

Justice, Democracy 2016, s 

~~~~~~~g;~~~~~·~·~~ii~~i~~l~j~';f~~~~6~~~L Actof2017, ll.R. 

1134.S.I585.1l5thCong.(2017). 

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reason to know they will be spent on elections, the donor group is required to reveal the major 

sources of its funding. 

C. Ensure Corporate Spending Is Funded Domestically 

Another blind spot in campaign finance results from corporations' ability to spend in elections, 

since corporate assets can include vast amounts of money originating in foreign countries or 

controlled by foreign nationals. 37 To address this problem, Congress should expand the ban on 

foreign election spending to domestic corporations substantially owned or controlled by foreign 

nationals. 

Although corporations currently can't give directly to candidates or parties, thanks to Citizens 

United and other court decisions, they can give to super PACs and make their own independent 

expenditures 38 Under the federal foreign money ban,foreign corporations that are organized or 

based in other countries are banned from spending money in American elections, including by 

giving to super P ACs. Yet current law allows foreign-owned companies incorporated in the 

United States, even wholly-owned subsidiaries, to make political expenditures as long as the 

money derives from business in the U.S. and the spending decision is not made by a foreign 

national. 39 

And corporations may be acting on behalf of foreign governments. Russia is known to use nonstate proxies, as with the Kremlin's use of the Internet Research Agency to conduct much of its 

campaign to influence the election through social media.40 

In order to address the possibility that corporate contributions may be used as an avenue for 

foreign influence, Congress should develop policies to restrict the ways that corporations with 

foreign ownership or control can spend on American elections. 

Federal Election Commissioner Ellen Weintraub has proposed requiring corporations that spend 

on politics to certify that their share of foreign ownership is below some threshold percentage 41 

37 Jon Schwarz and Lee Fang, "Cracks in the Dam: Three Paths Citizens United Created for Foreign "t\1oney to Pour 

into U.S. Elections, .. The Intercept, August 3, 2016, !lliPSIJID£illl'll'£!J2~'2'2Jll@l§!~IQ}C£i]i:f2rut:!!Jlj!£l!l:funigJ1: 

~~]{;~~h;"7;~~~,:J~o'h~:n C. Coates IV eta!., .. tJtJantm·m" T "Discussion Paper No. 888, John M. Olin Center for Law, Economics, and Business, 

Harvard University. 20 16. I I , h!.\P_,i!~Y1,~.!.f.IYY_,k'lfY~r!l5.9!!.);'!:Qll['lflbeLQQJ'LS"!l'ts'!:!!l."11.C.I'!Llliif!i~J&§.....§J&J:!ill: 

(finding that corporations with ownership by more assets 2012, 

and the share of corporate equity owned by foreigners has increased fourfold in the last three decades). 3

g Super PACs. made legal by a lower court decision interpreting Citizens United in 20 l 0. are allowed to take 

contributions of any amount, including from corporations and unions, in contrast to the contribution limits imposed 

on other political committees, including candidate committees. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 

20 10). They are supposed to operate independently of candidates and parties. 39 "Foreign Nationals." FEC. June 23, 2017. Federal Election 

Commission. Advisory Opinion 2006-15. May 40 Office of the Director of National Intelligence (ODN!), "Assessing Russian Activities and Intentions in Recent US 

Elections, .. Intelligence Community Assessment I CA 20 I 7-01 D (20 17), 

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The FEC deadlocked on the proposal, so it was not developed fnrther!2 Several existing state 

laws prohibit either direct contributions or independent expenditures by foreign-controlled 

corporations. Factors that can trigger a designation that a firm is foreign-controlled include 

having a greater than 50 percent ownership interest held by foreign nationals. 43 

Bills introduced in Congress this year arc also designed to address this issue. Rep. Jamie Raskin 

(D-Md.) introduced H.R. 1615, the Get Foreign Money Out of U.S. Elections Act this year, 

which would extend the ban on spending on elections by foreign nationals to domestic 

corporations that are owned, controlled, or influenced by foreigners 44 Similar provisions can be 

found in the Senate version of the DISCLOSE Act of2017, S. 1585, and the We the People 

Democracy Reform Act of20l7, H.R.3848. 

D. Reform the Federal Election Commission 

The FEC has contributed to the secret spending problem by failing to vigorously enforce 

transparency rules and the foreign spending ban. Congress should make the agency more 

effective by reforming its structure, as discussed below, including providing for an odd number 

of commissioners and a nonpartisan appointment process for at least one commissioner. 

FEC disclosure requirements apply to groups that are organized as political committees, but as 

noted above, some nonprofits refuse to register as political committees despite apparently 

existing solely to engage in political activities. In recent elections, the FEC has not done enough 

to police the border, failing to pursue investigations into several groups where there are strong 

indications that the group has a political purpose45 

In response to revelations about Russian operatives buying ads on social media, one member of 

the FEC, Ellen Weintraub, has called for revisiting the agency's regime governing election 

activity on the internet.46 It has been more than I 0 years since the FEC fully grappled with the 

regulation of internet spending. The commission has reopened a rulemaking concerning the 

scope of rules for disclaimers about who's paying for online election ads. But the recent history 

1-45-1 07.5( 1 ). 

Light On Spending in Elections (DISCLOSE) Act of20!7, H.R. 1585 

I I 5th Cong. (2017); Get Foreign Money of U.S. Elections Act, H.R. 1615, !15th Con g. (2017). 

See, e.g .. Robert Maguire, "FEC deadlocks, won't investigate dark money that 

election," OpenSecrets, November 18, 2016, 

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of deadlocks and lax enforcement at the FEC leaves little cause for optimism that the agency is 

up to the task of addressing foreign influence47 

And as noted, the FEC declined to strengthen the foreign national ban as needed to cover 

foreign-owned !inns after Citizens United freed corporations to spend on politics 48 

The FEC's problems are structural. The agency has an even number of commissioners, no more 

than three of whom may be from the same party49 Any significant action requires a majority. 

This leads to partisan deadlocks. Declining FEC enforcement in recent years has coincided with 

lockstep voting by a bloc of Republican commissioners ideologically opposed to aggressive 

enforcement or stronger rules. Although the commissioners are appointed by the president, 

presidents traditionally defer to party leaders in Congress, allowing partisan battle lines to infect 

the agency's decision making. 

Refonning the agency to break partisan deadlock could greatly benefit transparency regarding 

money in politics 5° Even under the current regime, the president can make appointments in a 

nonpartisan fashion, basing decisions on expertise or leadership rather than party loyalty. But 

structural reforms are warranted51 Most important, Congress could make the number of 

commissioners odd and require at least one member to be nonpartisan. There could also be ways 

to strengthen enforcement, such as empowering the Commission's Office of General Counsel or 

another designated nonpartisan enforcement official within the agency to conduct investigations, 

subject to override by the commission. 

* * * 

To be sure, the possibilities for foreign governments meddling in our elections in the future go 

beyond the financing of political advertisements. Reports of Russia's activities last year include 

unpaid posts on social media and the use of automated accounts, or "bots," to amplifY messages. 

There arc likely benefits of increasing transparency on social media to make it harder for foreign 

governments to engage in coordinated, covert attempts to sway American elections, and there 

may be steps for the social media companies, the public, and even Congress to take to improve 

transparency. 

to a initiative, with 

the Republican commissioners arguing that the spending ban only to candidate elections. Michelle 

Conlin and Lucas Iberico Lozada, ''FEC decision may allow more foreign money in U.S. votes, critics say," Reuters, 

April 24, 2015, 

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Regardless, it is clear that there are essential measures, recommended here, that Congress can 

and should enact now in order to keep foreign powers from secretly spending as much as they 

want on political ads in the next election. 

13 
69 

Mr. HURD. I’d like to thank all the gentleman for your opening 

remarks. 

And we’re going to start the first line of questioning with the 

gentleman from Michigan. 

Mr. Mitchell, you’re recognized for 5 minutes. 

Mr. MITCHELL. Thank you, Mr. Chair. 

It appears to me that a number of the individuals testifying 

today are conflating general or social ads, opinion posts, admittedly 

political ads, and explicit political campaign ads, and conflating 

them all as being the same thing. As Mr. Rothenberg notes, there 

were a lot of sophisticated posts, I’m quoting, about social and political issues, some of which were made widely available, by operators, including those outside the United States. 

Now, let me ask you, Mr. Chavern, how are we going to determine what’s fake news and real news? Who determines that for us? 

Mr. CHAVERN. Well, I wouldn’t ask the platforms to determine it. 

I mean, fake news—— 

Mr. MITCHELL. No, that doesn’t answer my question, sir. Who determines that? If we’re going to say we’re going to stop fake news 

in some manner in America—and trust me, I’m not a—you should 

see my Facebook posts. It’s not exactly a wonderful thing to read 

some days, trust me. So who’s going to determine what is fake 

news and stop it? 

Mr. CHAVERN. No one’s going to determine what’s fake news. 

There’s a pre-existing—I agree with you that conflating political 

ads with bad content is incorrect, and there is a preexisting regulatory regime about political ads. Okay. 

And then on, quote/unquote, fake news front, there’s a twofold 

problem. People get garbage over their news feeds online in the 

same way that good information is delivered to them. 

Mr. MITCHELL. I only have 5 minutes. I only have 5 minutes, sir. 

So let me ask the next question for you, which is a number of the 

newspapers that you represent printed a variety of articles about 

the upcoming tax reform and tax cut bill that’s pending. They 

quoted a variety of sources as being that the rich are going to benefit, that the majority of the tax cuts are going to be for the rich, 

and quoted some sources. 

Did you detail the funding sources of those groups that made 

that quote? 

Mr. CHAVERN. With regard to those pieces or other pieces, you 

know who to complain to. You can complain to the publisher or the 

reporters. Most of what we’re talking about are things that—— 

Mr. MITCHELL. With all due respect, no newspaper in my community reported any of those sources. And, in fact, as it comes to 

the tax bill that’s pending, the tax brackets have not been published. The bill has not been published. Yet somehow, if you read 

the newspapers in my community, they have already determined 

how the tax bill is going to work based upon some groups that are 

funded by, I’ll admit, progressive left groups that say immediately 

any tax cut is going to be bad. 

So my question for you is, if you’re going to start being fair in 

terms of the information you put out, would you not be responsible 

for posting that this comes from a group that’s largely funded by— 

pick whatever term you want to do—would you not post what their 


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70 

bias is? Why would you not do that, then, if you want to talk about 

it? 

Mr. CHAVERN. Congressman, what I would say is that you know 

who to complain to, which is the publisher and the reporters whose 

names are attached to that content—— 

Mr. MITCHELL. Well, I assure you that hasn’t had much difference. 

Mr. CHAVERN. —as opposed to most of what we’re talking about 

today. 

Mr. MITCHELL. I assure you that it hasn’t had much difference. 

The distinction I want to create, I would suggest to your group, 

is that there’s a difference between—you’re responsible for the people you employ, their opinions they put forward. You know very 

clearly in opinion ads or opinion columns who the writer is. I’ve 

done a number of them. You’re responsible for that contact or the 

individual that makes their opinion piece is responsible for the content. That’s clear. 

The difference is on the internet, an internet post, that the provider, the intermediary, is not responsible for it. They didn’t write 

it. They didn’t hire them. They didn’t determine who they are. Yet 

you want them held to a standard that’s like your newspaper when 

it’s an entirely different format. 

Mr. CHAVERN. I wouldn’t assert that, Congressman. 

Mr. MITCHELL. You did in your testimony, with all due respect. 

Let me move on real quick. I’ve got just a minute left here. 

Mr. Vandewalker, I mean, can you help me understand, then, 

given your perspective on it, we’re going to allow the Federal Government to determine what is appropriate content in social media? 

We’re going to have them determine, well, that’s a political ad, 

that’s not? We’re going to leave it up to a group of people to decide 

that? 

Mr. VANDEWALKER. Well, no. The idea is to incorporate an existing framework that already is out there. The electioneering communication is a bright line test. Candidate mentions within a certain time period above a certain spending threshold. 

Mr. MITCHELL. Well, let me stop you, though. Clearly 

the bright line hasn’t worked. As Mr. Rothenberg notes and Mr. 

Dickerson noted, the realty is an awful lot of these posts are now 

questioned as influencing the election fell well outside the bright 

line. So who’s going to determine that? 

Mr. VANDEWALKER. Well, again, the bright line keeps you from 

having someone have to determine it. Certainly there are things 

outside of the bright line. But, you know, having a bright line and 

having people understand that they can post if it’s below a spending threshold protects speech and protects the ability for people to 

talk about legislative issues without having a decisionmaker have 

to make judgment calls every time. 

Mr. MITCHELL. Well, let me suggest to the group, and I’ve suggested internally here to other members, our first responsibility 

here is to protect the Constitution. The First Amendment is the 

first amendment for a reason. We need to defend that even if some 

people think it’s fake news, because one person’s opinion on fake 

news is another person’s opinion. And the idea that we’re going to 

allow a group of regulators, a group of bureaucrats to regulate 


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what we will be able to see in terms of social media or other formats offends me, and I will certainly oppose that any way I can. 

Thank you very much. I yield back. 

Mr. HURD. The Honorable Robin Kelly from Illinois is now recognized. 

Ms. KELLY. Thank you, Mr. Chair. 

In January of this year, the intelligence community released its 

assessment that Russian President Vladimir Putin ordered an influenced campaign aimed at the U.S. Presidential election. According to that assessment, and I quote, ‘‘Moscow’s influence campaign 

followed a Russian messaging strategy that blends covert intelligence operations, such as cyber activity, with overt efforts by Russian agencies, state-funded media, third-party intermediaries, and 

paid social media users or trolls.’’ 

Only 1 month ago, as I said before, Facebook revealed that a 

company linked to the Russian Government bought 3,000 ads 

aimed at amplifying divisive issues. These ads are believed to have 

reached 10 million people in the United States. 

To be clear, this is just the ads we know about and people they 

have reached. There are likely to be more advertisements bought 

and concealed due to the nature of digital advertising. 

Mr. Vandewalker, are our current laws and regulations sufficient 

to prevent future influence campaigns by foreign actors? If not, 

why not? 

Mr. VANDEWALKER. Well, unfortunately, too much of the internet 

is left out right now. We have, as I mentioned, a regime that applies to political spending in mass media. And at the time that that 

regime was enacted, the important mass media were covered. But 

now the internet is far more important than it was then, and it’s 

only gaining in importance. 

And it should be brought into the regime that exists so that 

spending above a certain—spending thresholds on electioneering 

communication should be covered. Similar requirements of disclosures for political ads under the FCC rule for broadcasters should 

be applied to internet ads as well when they’re paid for. 

Ms. KELLY. Okay. 

Mr. Rothenberg, your testimony characterized this as a supply 

chain issue. What do the members of your industry that are a part 

of that supply chain need to do to prevent this issue. 

Mr. ROTHENBERG. I think they need to participate in both our existing programs of industrywide self-regulation that have been very 

successful. We’ve built them to give consumers disclosure and control over their privacy, over their data flows in digital advertising 

environments, and we’ve built another that requires disclosure to 

prevent fraudulent activity from taking place. 

So I think we need much more aggressive participation in those, 

and we would welcome Congress’ support for that. And I think we 

can build out from those programs to create better conditions for 

not just disclosure, but I call it supplier qualification. 

I mean, basically, if you take a couple steps back, if you think 

about your local supermarket, or even something as large as your 

local Walmart, nothing goes on those shelves without it having 

gone through a series of sluice gates that give everyone a bit of assurance that those products are safe. 


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We have created mechanisms that can do the same thing, and I 

think we ought to build out those mechanisms and get more comprehensive participation in them. 

Ms. KELLY. Thank you. 

Besides lax self-regulation of advertising appearing on social 

media, there’s also the proliferation of fake accounts. On election 

day, thousands of fake accounts coordinated messages aimed at disparaging Secretary Clinton and Democrats. 

Mr. Chavern, print media still contains a large amount of advertising. What are its responsibilities in terms of political advertising? 

Mr. CHAVERN. Well, its responsibilities are those that it’s traditionally had and upheld, which is to develop a safe and trusting environment for its readers. 

Most of our content is now delivered digitally, and the biggest 

things we can do there are let people know where the information 

has come from, what is the source of the information. The biggest 

issue from my perspective with, quote/unquote, fake news is that 

it comes out of nowhere, people don’t where it comes from, and it’s 

fed to them in the same way that other legitimate news is fed to 

them. 

So the best thing that any platform or news source can do is be 

clear about why the news is coming from, what the source of it is. 

Ms. KELLY. Just out of curiosity, do you, with print media, do 

you feel like—you said you want to provide a safe and trusting. Do 

you feel like most of your readers feel that way or trust what they 

read? 

Mr. CHAVERN. I think they do find it is. We have an extremely 

loyal and actually growing audience for our news product. The audience for our news product is bigger than it’s ever been in history 

across all the platforms. And the fact of the matter is people want 

credible information about the world and their community, and 

they primarily come to us to get it. 

Ms. KELLY. Should digital political ads be held to a different 

standard than political ads in other media? 

Mr. CHAVERN. No. I come back to the—we’re in a platform-agnostic world where you get information 16 different ways, which is all 

good. But the rules can’t be divvied up by platform. We’re going to 

need to come up with a set of rules that goes with the content, not 

with the platform. 

Ms. KELLY. What do you think that you can do to do a better job 

helping leaders distinguish between the real news and content that 

comes from questionable sources or the fake news? 

Mr. CHAVERN. I mean, there’s always been crazy conspiracy theories. I think we’ve all got uncles over the Thanksgiving dinner 

who’s told us crazy stuff. But that’s always been different from the 

newspaper in your driveway or what’s on TV. 

What’s happened now is that it all gets put in a blender and fed 

to you so that the real news sources and the crazy conspiracy theories come the same way. 

You don’t want the platforms and anybody else censoring content, but you need to give readers more information. You need to 

indicate much more clearly where it’s coming from. And these algoVerDate Nov 24 2008 14:27 Jan 08, 2018 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 H:\27762.TXT APRIL

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rithms, to which we are all subject to in our lives, need to give 

credit do people who actually pay reporters for real reporting. 

Ms. KELLY. Thank you. I yield back. 

Mr. HURD. Now I’d recognize my friend and colleague from the 

great State of Texas. Mr. Farenthold, you are now recognized for 

5 minutes of questions. 

Mr. FARENTHOLD. Thank you very much, Mr. Chairman. 

So, Mr. Chavern, Ms. Kelly asked you a question I don’t think 

you adequately answered. Are there any Federal Government regulations on a political ad placed in the newspaper? Is there anything 

a newspaper has to do by law? 

Mr. CHAVERN. As the primary responsible party, no, it’s on the 

advertiser, is the primary—— 

Mr. FARENTHOLD. All right. And you say Federal regulations 

should be platform neutral. So it would also, by extension, be the 

Federal Government should not place any regulations on internet 

platforms as well and treat them the same as a print newspaper. 

Is that correct? 

Mr. CHAVERN. Right. As long as the regulation around the advertisement itself is the same. If there are disclosure regulations on 

whoever they’re from, they have to be—whether it’s online or on 

your watch, it’s—you know, people are consuming content in every 

way. So the requirements, whoever they may fall on, should fall 

without regard to the platform. 

Mr. FARENTHOLD. All right. 

So, Mr. Rothenberg, would you—actually, is there anybody on 

the panel who disagrees with that? 

Mr. ROTHENBERG. Well, I would just add one kind of coda to it. 

The law has long—and I would defer to Mr. Goodman on this too— 

the law has long recognized that broadcasting is different because 

of the scarcity—— 

Mr. FARENTHOLD. Yeah, the scarcity of the airwaves held in public trust. I’m an old radio guy. 

Mr. ROTHENBERG. Right. So with that as a known exception, you 

know, platform agnosticism makes sense, yes. 

Mr. FARENTHOLD. All right. So let’s talk a little bit about— 

there’s a difference in the way that ads are placed. There’s been a 

lot about, you know, who’s buying these ads and the disclosures. 

Typically in the newspaper, you actually probably talk to a salesman or you talk to somebody on the phone. If you’re going to buy 

something on an online platform, it’s typically done online. 

Let’s say I’m Boris or Natasha from Moscow and have a pile of 

rubles I’ve converted into American dollars. I go buy a cash card, 

Visa, rent a post office box, and ain’t nobody going to know I’m a 

foreign national. Do you see that as a problem? 

Yes. 

Mr. ROTHENBERG. Well, as I said in my testimony, and it’s not 

necessarily a popular point of view across my entire industry, every 

company should know to some degree of comfort and certainty who 

it’s doing business with. That’s a fundamental principle whether 

you’re making a car or whether you’re running a grocery store. So 

I think that it is not just possible but necessary to have some kind 

of supplier qualification and customer qualification safeguards in 

place. 


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Mr. FARENTHOLD. All right. Now, let’s go to the other problem 

that people are complaining about in social media. I think there’s— 

you may actually have more effect in elections on, say, Twitter or 

maybe Facebook with bots, just posting something at no cost. A bad 

actor may go spend $100,000 hiring a programmer to create bots 

and start posting stuff. 

How do we deal—is there a technological way to detect that? I 

understand that’s a problem in the industry worldwide dealing 

with bots. What do you do about that? And how do you not get legitimate people who are trying to exercise their First Amendment 

rights wrapped up in that. 

Mr. ROTHENBERG. Sir, you have just identified the absolute total 

nut of the problem, the dilemma. But it’s not unsolvable. I don’t 

think you can come up with anything that will ever be 100 percent 

foolproof, because the technology is very low barrier to entry and 

will always evolve. It’s like a game of whack-a-mole. They’re always 

going to find new ways to do things. 

But I keep coming back—I’m sorry I sound like a broken record. 

Nobody actually knows what a record is these days. But I’m sorry 

I keep repeating myself. But I think elements of supplier qualification, knowing with whom you’re doing business up and down the 

supply chain and building that into a comprehensive self-regulatory program, will go, and we have proof that it goes a long way 

to reducing the bot traffic. 

Mr. FARENTHOLD. Under some sort of self-regulatory program, 

you’re going to have to have the ability of a social media platform 

or website operator, whomever, to reject something. Where do you 

draw the line that they’re being treated fairly? Let’s say I start 

Blakeoogle, or whatever the new search engine is, and I’m going to 

turn down all ads from liberals because I’m a conservative. How do 

we address that? 

Mr. ROTHENBERG. Well, first of all, it’s your right. You can do 

anything you want and prevent anybody you want from coming on. 

If you want to grow and you want to create a larger business, you 

want to be as open as possible, so you have to find a balance. I 

know that may come off as a little mealy-mouthed. But there is a 

balance between using technology systems and human oversight to 

determine the quality of your supply chain participants. 

Mr. FARENTHOLD. But how does somebody know then, for instance, say my algorithm, to determine what’s in a user’s news 

feed? I could subtly weight that to conservative messages and it 

might be years before somebody figure that out. 

Mr. ROTHENBERG. It’s true. The same has long existed in every 

other medium as well. There’s been political bias. Sometimes it’s 

subtle and sometimes it’s not so subtle. 

Mr. FARENTHOLD. You find that on cable news, I’m sure. You 

choose your channel, I think. 

Mr. ROTHENBERG. And you choose your technology. 

Mr. FARENTHOLD. Right. 

Thank you very much. I see my time has expired. 

Mr. HURD. I now recognize the distinguished gentleman from 

Maryland, Mr. Raskin, for 5 minutes. 

Mr. RASKIN. Mr. Chairman, thank you very much. And thank 

you for calling this really important hearing. 


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Mr. Rothenberg, you’ve spoken eloquently about building integrity into the supply chain, which then leaves the obvious question, 

what went wrong in 2016 and why are we in this situation we’re 

in? Why didn’t that happen? 

Mr. ROTHENBERG. Well, to quote a former Secretary of Defense, 

you can’t plan for the unknown unknowns. 

We did very explicitly, going back over the 11, 12 years I’ve been 

in this job, working with our partner associations, the Association 

of National Advertisers, the four A’s, which represents the agencies, the Data and Marketing Association, built very effective selfregulatory programs for known knowns, consumer privacy controls 

for bot fraud, but nobody had anticipated illicit Russian actors. 

Mr. RASKIN. Gotcha. So you think you’re ready next time, or 

you’re getting ready for next time? 

Mr. ROTHENBERG. Well, you know, I was—— 

Mr. RASKIN. And intelligence agencies say they’re coming back. 

Mr. ROTHENBERG. Oh, they will be. 

Mr. RASKIN. As early as 2018. 

Mr. ROTHENBERG. They will be. But I’ll give kind of a warning 

borne of my older profession. 

Back, way back, in my dark past history, I covered politics and 

political media for The New York Times, and I developed a principle back in the late ’80s that we’re always covering the last election. The media and the way communications happen are always 

outrunning our thoughts about what’s going to happen. I don’t 

think anybody anticipated the degree to which Twitter was going 

to be a massive social influence, let alone bots. 

So, yes, I think we can very much be prepared for the bot traffic 

problem, but we don’t know what mole is going to pop up in that 

game next time around. 

Mr. RASKIN. Gotcha. Thank you. 

Mr. Vandewalker, let me switch to you. You’ve made what seems 

like the intuitively obvious point that the internet is properly analogized to TV and radio in terms of its—in terms of the medium, 

in terms of its intact, in terms of how it works. And, therefore, the 

rules that apply to electioneering communications in the TV context, in the broadcast context, should also apply in the internet. 

And all of us are familiar with that. We have to say that, you 

know, we paid for this ad and we stand by this ad and all that kind 

of stuff. 

But what about the problem which has kind of been floating 

around from the beginning of the hearing that it seems as if of the 

hundreds and hundreds of Facebook pages and Twitter messages 

and bots that were put out by the Russians, many of them were 

just meant to sow chaos and to inject poison into the American 

body politic. They would not fall within the electioneering communications definition that we’ve got under the McCain-Feingold legislation. 

Can anything be done about that? Or is it, as Mr. Rothenberg is 

suggesting, that, well, we’ve learned our lesson from 2016, and now 

the public is going to be much more wary, or should be, and the 

media themselves and the internet companies themselves should 

be—try to be on top of this problem? 


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Mr. VANDEWALKER. Right. I mean, I think, as you noted, we 

should close the doors that we know we can close. 

I don’t think that’s all that can be done. For example, the political ad database encompassed in the Honest Ads Act actually goes 

beyond electioneering communications because it involves issues of 

national legislative importance and so would create a publicly 

available record that researchers could use to try to piece together 

what’s coming from where, who’s being targeted, and what are the 

messages. That could be, I think, extremely valuable in understanding what the sort of next attacks are and how to respond. 

And then I think there are more things to be done sort of outside 

the realm of campaign finance. And that’s going to require industry 

and Congress working together in the ways that Mr. Rothenberg 

has proposed and really figuring out how to get on top of this thing. 

Mr. RASKIN. Let me ask you another question. The Supreme 

Court in the Bluman decision upheld our traditional ban on foreign 

nationals spending money in U.S. elections. That’s not covered by 

Citizens United if they are not a U.S. individual or a corporation. 

However, foreign money could take over domestic corporations, as 

you were suggesting before, and then money could be channeled 

through the Citizens United loophole directly into the political system. Is that something that you think we can tighten up as well? 

Mr. VANDEWALKER. Yes, definitely. You know, regulation has in 

many ways not caught up with Citizens United even though it was 

several years ago now. A corporation’s ability to spend unlimited 

amounts on politics either directly or through super-PACs requires 

dealing with the problem that even a domestic corporation can be 

wholly owned or controlled by foreign powers, and that should be 

tightened up. 

One of the ways would be to, as has been proposed, set some 

kind of percentage, ownership percentage by foreign nationals or 

foreign governments, and say, above this even a domestically sited 

or incorporated corporation can’t spend on politics. 

Mr. RASKIN. Mr. Chairman, thank you very much. 

I yield back. 

Mr. HURD. I recognize myself for 5 minutes. 

This question is to everybody on the panel. You can say, yes, no. 

You can elaborate. Just don’t take too long if you’re going to elaborate. 

And, Mr. Vandewalker, I’m going to start with you, and we’ll go 

your left, to your-all’s right. 

Laws like the Federal Election Campaign Act, McCain-Feingold, 

and Supreme Court cases like Citizens United, do those refer to 

and should those cover all political advertisements, whether express advocacy or issue advocacy, despite the platform? 

Mr. Vandewalker. 

Mr. VANDEWALKER. Yes. I think our campaign finance regime at 

its heart is about transfers of money designed to influence politics, 

whether that means buying a political ad, writing a check directly 

to a candidate. There are different ways that that can play out in 

detail. But, yes, I think—— 

Mr. HURD. Mr. Rothenberg. 

Mr. ROTHENBERG. No. Opinion is protected. Issues are protected. 

That is not just a slippery slope. You’re already three-quarters of 


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the way down that slope. When it’s about candidates and about actual advocacy for or against the candidate, then clearly that falls 

within the scope of existing—— 

Mr. HURD. Yeah, that’s what I asked. I asked specifically for express advocacy. You should, you know, vote for this guy or don’t 

vote for that guy. 

Mr. ROTHENBERG. Sure. 

Mr. HURD. Or the issue saying: Call your Congressman if this. 

In any of those types of political speech, should that fall under 

these laws and Supreme Court cases despite the medium, whether 

it’s you’re writing—— 

Mr. ROTHENBERG. Yeah. 

Mr. HURD. —whether you’re sending a piece of mail in the mailbox or it’s a digital ad? 

Mr. ROTHENBERG. Yes, they absolutely can. You’ve got to make 

certain adjustments for the differences among the media. You can’t 

have video rules applying to audio and vice versa. But yeah, sure. 

Mr. HURD. Mr. Goodman. 

Mr. GOODMAN. I agree that under the Court’s precedents it 

doesn’t matter the medium. To the extent speech can be regulated 

under those cases, it doesn’t matter whether you’re—how you say 

it. 

Mr. CHAVERN. Yes, as to express advocacy. You get beyond that, 

you get into tremendous free speech issues. 

Mr. HURD. My First Amendment expert, Mr. Dickerson. 

Mr. DICKERSON. Yes, as regards to the—as to those platforms 

with a caveat, which is that, you know, the amount of money that 

is being regulated is important. The fact that it is cheaper to run 

an ad in some media versus another doesn’t change the burdens on 

the speaker and their resources in complying with a regulatory regime. So in that sense, if we’re talking apples to apples, certainly. 

Mr. HURD. So if somebody—you know, coming from the great 

State of Texas, where I’m in the only competitive district in the 

State, I’m very familiar with all of the political advertisements that 

may or may not be run against me. If somebody’s running ads 

against me, there’s a public file. 

Mr. Chavern, is that correct? 

Or, I guess, Mr. Goodman. I think you’re—let’s say—if they were 

doing it on television. 

Mr. GOODMAN. If they were doing it on radio, television, there’s 

a public file. And depending on whether they are your opposing 

candidate or an independent group, different information would be 

in that file. 

Mr. HURD. And what law governs that? 

Mr. GOODMAN. It’s largely the Communications Act. And there 

were amendments to that act by the McCain-Feingold Act in 2002. 

Mr. HURD. Mr. Chavern, is that the same for print? 

Mr. CHAVERN. In terms of the—there’s no public—— 

Mr. HURD. A public file. Like, do I know how—— 

Mr. CHAVERN. No, there’s not a public file requirement. And as 

a matter of fact, I would take this opportunity, I think this is a 

time where Congress can look and see what requirements are needed across platforms. You know, we have different requirements 

now. I think looking forward, you have to say what’s rational and 


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required. And, for example, do you need a public repository when 

you have the internet? But, you know, currently, the rules are different. 

Mr. HURD. Or should it be available on the internet? 

Mr. CHAVERN. Right. 

Mr. HURD. Mr. Rothenberg, you obviously know you’re next. 

Mr. ROTHENBERG. Well, on that one, I think—— 

Mr. HURD. When it comes to specifically digital platforms. 

Mr. ROTHENBERG. You’re talking about the public file? 

Mr. HURD. Public file, yeah. 

Mr. ROTHENBERG. Yeah. I think that it’s hard under the law and 

under First Amendment history to require the public file to reside 

with different media. It’s hard to take something that was based 

on the stewardship of the airwaves, import it over to something as 

open and diverse as the internet. 

But what I don’t understand is why you can’t place those requirements on the campaigns themselves. They know what they’re 

spending, they know where they’re spending it, they can create the 

public file, and that would be available across all media, rather 

than burdening the end nodes, the edge providers. 

Mr. HURD. So my first question to all of you all were the rules 

that govern express advocacy should apply to all mediums. But 

we’re saying when it comes to the public file and making sure that 

what advertisements are and timing and amounts, that should only 

apply to broadcasters? Is that what I just heard? 

Mr. ROTHENBERG. Interesting. What I would say is you can apply 

it, but you should place the burden on the campaigns, not on the 

media that are not responsible for selling the ads. 

Mr. HURD. Mr. Dickerson, can you help me understand any First 

Amendment issues with this notion of a public file? 

Mr. DICKERSON. Well, I mean, the most basic is that it’s not 

costless. 

Mr. HURD. It’s not? 

Mr. DICKERSON. It’s not costless. I mean, it’s necessarily burdening speech in the sense that certain types of advertisers have 

to do things that others don’t. We’ve largely lived with that because, you know, as I explained in my written testimony, the sort 

of speech that’s being done on broadcast tends to be larger amounts 

of money and more sophisticated actors. There are human beings 

in the mix who are making these determinations as to express advocacy. 

Mr. HURD. So are you saying that I should have to do it on television, but somebody else shouldn’t to have do it in another medium? If somebody is running against me and they shouldn’t have 

the same? 

Mr. DICKERSON. I personally would question the utility of a lot 

of the exercise in the sense that I’m not sure this information is 

actually used in ways that are useful from a First Amendment 

standpoint. But if we are going to have them, we need to be careful 

to ensure that only the sort of sophisticated actors like political 

campaigns, and that only the sort of speech that is clearly about 

elections is covered. 


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Mr. HURD. Yeah. And I want to make sure I’m clear. When I ask 

questions, it’s narrow, express advocacy and issue advocacy. Mr. 

Dickerson, I appreciate that. 

Now I would like to recognize the gentleman from Massachusetts. 

Mr. Lynch, you’re recognized for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. And I want to take a special moment just to thank you and to thank Ranking Member Kelly 

for holding this hearing. This is incredibly important. I want to 

thank the panel members as well. 

And although Ranking Member Kelly mentioned that it’s only 

been a month since Facebook came out and said, yes, the Russians 

did purchase $100,000 on Facebook to influence the election, it has 

been a very long time since Members of Congress have been asking 

to have an investigation on the interference of a foreign government, in this case, Russia, with our democratic elections. It goes 

back a long way. And this is the first time, Mr. Chairman, you are 

the first, you are the first to hold a public hearing on the hacking 

of our election. And I want to thank you for that. 

I mean, we go all the way back to September of 2015 when the 

FBI actually contacted the DNC to say the Russians are hacking 

your website. And the Democratic National Committee did not act 

promptly on that warning, and so the hacking continued. 

And then in June 2016, it became public of the Russian hacking, 

widely reported. In December 2016, every single one of the U.S. intelligence agency heads went public and said that with high confidence—this is December of 2016—with high confidence they could 

say that the Russians were hacking our election. 

In September of 2016, Senator Feinstein and Representative 

Adam Schiff came forward and they said, based on their positions 

as ranking members of the Intelligence Committees, they had information from their hearings that the Russians were hacking our 

elections. 

And, yes, again last month, Facebook came out and said, yeah, 

the Russians purchased, with rubles, $100,000 in ads and interfered with our elections. 

So all that happened, and today’s the first day of the hearing. 

Today is the first public hearing that we’re having on the infringements made by a foreign government on the United States elections. That’s shameful that it took so long. 

And so I’m going to—we’re talking about campaigns in general, 

and limitations on campaign advertising, but again, I’m going to repeat my request. And my when I say repeat, back in December 

2016, December 14, I submitted this letter to the chairman of our 

committee, at that time Mr. Chaffetz, asking him for a hearing on 

the Russian interference with our election. No response. 

On April 3, 2017, I repeated the effort again. I wrote a letter to 

this committee saying, look, this is the Oversight Committee, this 

is our national election, can we please have a hearing on the Russian interference with our election? No response. 

Again, I joined—this time I thought maybe it was just me—so I 

asked all my colleagues to join with me to a letter to Jason 

Chaffetz, and also the Honorable Bob Goodlatte, chairman of the 

House Judiciary Committee, on May 16, 2017. Could we please, 


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could we please have a hearing on the Russian interference in our 

election. It’s very, very important to our democracy. They hacked 

the RNC and the DNC, both parties. We should be bipartisan about 

the integrity of our elections. And, again, up to today, no action. 

And we’re having a hearing today on political advertising, but we 

still haven’t had a single hearing, a single public hearing on the 

Russian interference in our election. 

Ironically, today I did learn in Politico that Mr. Goodlatte has 

announced the 11th hearing on the Clinton investigation, on the 

Hillary Clinton investigation, the Department of Justice investigation of Secretary Clinton. 

So we’ve got to get together on this stuff. And I know it might 

be painful for everyone. I actually asked Ms. Wasserman Schultz, 

would she come and testify. Yes, she said, she would. It would be 

difficult, but she would. She would come and help us to delve into 

what actually happened. 

So let me ask you, with my remaining 30 seconds, Mr. 

Vandewalker, you’re familiar with the Honest Ads Act that my 

friend Mr. Kilmer and Senator McCain have put out there. It 

seems straightforward. Give me your opinion on that, please. 

Mr. VANDEWALKER. We think it’s—the Brennan Center takes the 

position that it is an excellent framework to apply to address the 

problem of political spending, to close doors on foreign spending 

that can come in and affect elections, by bringing the internet into 

an established framework that exists for political spending and 

other mass media. 

Mr. LYNCH. Thank you. 

And, Mr. Chairman, I thank you for your indulgence, and I yield 

back the balance of my time. 

Mr. HURD. Mr. Lynch, thank you. And I appreciate the kind 

words, but I also want to highlight that there have been a number 

of hearings, open and closed, on the House Permanent Select Committee on Intelligence. 

Mr. LYNCH. I haven’t seen them. 

Mr. HURD. On the issue of this. But this, again, making sure 

that we’re—why we have this—doing this in a bipartisan way. 

With that, it’s now a pleasure to recognize the gentleman from 

the Commonwealth of Virginia, Mr. Connolly, for 5 minutes. 

Mr. CONNOLLY. Thank you, Mr. Chairman, and thank you for 

having this hearing. 

I find it a remarkable moment in our democracy when so many 

up here apparently can see and hear no evil when it comes to Russian interference with the American election process, irrespective of 

who benefited, but can beat a dead horse when it comes to what 

kind of server was used for somebody’s emails. I think that’s an indictment of the enabling and complicit behavior we have seen all 

too much of since Mr. Trump was signed in as President of the 

United States. 

What could be more sacred than protecting everyone’s franchise 

and the integrity of that process in a democracy? And when it is 

interfered with deliberately, strategically, targeted by a foreign adversary, not an ally, an adversary, why wouldn’t we be doing everything in our power on a bipartisan basis to make sure that can 

never happen again? And that is really the context of this hearing. 


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Mr. Goodman, from a legal point of view, in my State, the great 

Commonwealth of Virginia, when I do a campaign ad, if I do one, 

I’m required by law at the end of it to have a trailer saying, I paid 

for this, this is my campaign ad. It’s a ‘‘stand by your ad’’ kind of 

requirement in the law. In a sense, it’s circumscribing my free 

speech, is it not? 

Mr. GOODMAN. To some extent it—the courts have so far never 

questioned the ability of the government to require disclosure. And 

with respect to one part of that, which is the ‘‘I’m Gerald Connolly 

and I paid for this ad,’’ that, at least with to respect to the FCC, 

is something you can choose to do or not do, but if you don’t do it 

you’re not entitled to the candidate discount rate. So it’s your 

choice. 

Mr. CONNOLLY. But the point here is there’s precedent for circumscribing certain forms of political advertisement. 

Mr. GOODMAN. No one has ever questioned those particular requirements, to my knowledge, in court. But the Supreme Court has 

in all of its cases said that disclosure is largely the remedy, and 

I would think this would be within the scope of disclosure. 

Mr. CONNOLLY. Uh-huh. 

So, Mr. Vandewalker, given the fact that there is precedent— 

that is one example, there are lots of other examples of circumscribing what otherwise would be free speech, tobacco advertising, 

for example, the government makes a producer of a certain product 

actually add words to its packaging it does not want to add, but 

that are required by law. 

So there is precedence. No one wants to infringe the First 

Amendment. But one of our friends on the other side of the aisle 

earlier made it seem as if the choice were gut the First Amendment or deal with this problem. And it seems to me those are not 

the only two options in front of us. 

Your comment? 

Mr. VANDEWALKER. That’s right. There are sort of limits on the 

amount of speech in various ways. And it’s important to recognize 

that there are First Amendment interests on both sides, that is, 

the listener has an interest in knowing who is speaking to them 

so that they can evaluate that message. 

There’s sort of democratic interest in voters knowing who’s piping up for a candidate, that tells you something about what that 

candidate stands for, holding candidates accountable for the financial support that they get, as well as being able to evaluate is this 

message about some political issue coming to me from an environmentalist group or an oil industry, and do I trust which one of 

those and taking those sorts of things into account. 

Mr. CONNOLLY. I’m going to run out of time. So let me just—do 

Boris and Natasha operating from the dacha in the outskirts of 

Moscow, trying to corrupt American democracy through multiple 

social media and digital ads, do they have the unfettered First 

Amendment rights that anybody else does in the United States? 

Mr. VANDEWALKER. No. 

Mr. CONNOLLY. They don’t. Why not? 

Mr. VANDEWALKER. Well, for a number of reasons. You know, 

constitutional rights, in general, are diminished at most—at the 

very least for foreign nationals not within the United States. 


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But also it’s important to note that in the democracy sphere, as 

noted in the Bluman opinion that was referenced earlier, we have 

this self-governing community. We are governing ourselves. And 

that is why we have a democracy and a First Amendment that allows political debate and others do not necessarily get—— 

Mr. CONNOLLY. And therefore we have a right to protect ourselves from Boris and Natasha? 

Mr. VANDEWALKER. Right. 

Mr. CONNOLLY. Thank you. 

Mr. HURD. Mr. Krishnamoorthi, you’re now recognized for your 

5 minutes of questions. 

Mr. KRISHNAMOORTHI. Thank you, Chairman Hurd and Ranking 

Member Kelly, for holding this important hearing on our political 

advertisement disclosure laws. 

You know, regardless of our political affiliations, we all agree 

that our elections are the cornerstone of our democracy, and transparency and the security of elections must be protected at all costs. 

Foreign efforts to undermine both our elections and the elections 

of other Western democracies must be taken seriously. This Congress has a responsibility to ensure that all future elections are 

protected against foreign meddling. 

Mr. Vandewalker, we’ve heard today the suggestion, and we’ve 

seen in at least written testimony, that Russian internet ad buys 

were just simply too small to be considered a nefarious foreign influence, given the actual amount of money spent on electioneering 

ads versus other means of Russian propaganda. 

Would you agree with the idea that any effort by a foreign adversary to sway our elections regardless—regardless—of whether or 

not those efforts had a significant impact on the outcome of an election are troubling? 

Mr. VANDEWALKER. Yes. I mean, first of all, we don’t know the 

extent. So we haven’t seen the maximum figure. But, yes, any 

amount of, again, trying to influence American elections contrary 

to our self-sovereignty is problematic. 

Mr. KRISHNAMOORTHI. You know, Mr. Vandewalker, earlier this 

month Facebook stated that about 10 million people—10 million 

people—have seen these ads. How concerning would you say those 

estimates are? And how does that impact the public’s trust of our 

news media and our democratic institutions? 

Mr. VANDEWALKER. I mean, I think it’s very troubling. And, 

again, that should not be considered an upper bound. Facebook 

said that that was the audience that the paid ads reached. Those 

same profiles produced unpaid content that reached probably—potentially tens of millions more. We don’t yet know. 

And that’s one of the problems with not having very much disclosure in this area, that we actually still don’t know the extent of the 

reach, and we need more information about who’s trying to sway 

our political opinion. 

Mr. KRISHNAMOORTHI. So it may have reached tens of millions of 

people, not just 10 million. Through the purchase of thousands of 

ads and the use of Russian-linked accounts or bots on various social media platforms, Russia’s Government was able to manipulate 

the Internet’s open access to information to spread lies, inflamVerDate Nov 24 2008 14:27 Jan 08, 2018 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 H:\27762.TXT APRIL

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matory rhetoric, and other propaganda in the hopes of swaying voters both in the United States and France, among other places. 

Multiple news reports found that on Facebook alone there were 

hundreds of profiles linked to Russian agents that spread false information regarding one of the Presidential candidates, as well as 

issues like immigration, guns, and other divisive topics. 

During the French elections, there were similar efforts to spread 

false information regarding one of their Presidential candidates. 

Mr. Vandewalker, one final question. In your opinion, are we 

taking as a body in Congress the issue of foreign infiltration of our 

internet sites seriously enough? 

Mr. VANDEWALKER. I think there’s been a lot of discussion from— 

you know, our perspective at the Brennan Center, we value transparently, which is crucial in elections always, and is especially crucial now to address this foreign influence. We certainly think more 

action could be taken. There are bills that have been introduced 

that would help address this problem. 

Mr. KRISHNAMOORTHI. Do you anticipate that the Russians and 

others are going to continue these efforts in the ramp-up to 2018? 

Mr. VANDEWALKER. Everything I’ve seen from the intelligence 

community indicates that, yes, they are. 

Mr. KRISHNAMOORTHI. Thank you. 

Mr. HURD. The gentleman from the great State of Washington, 

and a friend, welcome to the Oversight Committee. You’re always 

welcome. Love to see you at future hearings. You’re now recognized. Mr. Kilmer is now recognized for 5 minutes. 

Mr. KILMER. Thanks, Chairman Hurd and Ranking Member 

Kelly, both for overseeing this important hearing, but also for letting me sit in with your subcommittee. 

Our democratic Republic, that system in which we the people are 

the boss, has become vulnerable to foreign actors that want to disrupt our system of government to influence electoral outcomes. And 

from the reports that we’ve read so far, foreign actors targeted 

American voters to have the maximum impact on our elections. 

And that’s unacceptable, and that’s something, thankfully, both 

Democrats and Republicans have agreed needs to be stopped. 

That’s why we introduced the Honest Ads Act, myself and Congressman Coffman, with input from my good colleague, Representative Sarbanes, and Senators Klobuchar, McCain, and Warner. And 

our bill would have the Federal Election Commission enact rules 

for online advertisements similar to what’s already in place for TV 

and radio and satellite ads. Those rules require disclosure of who’s 

buying what ads where. And that’s vital if we’re going to ensure 

transparency to affirm the public’s right to know. And it’s important that if we’re going to—that’s increasingly important if we’re 

going to keep foreign money out of our politics. 

Just based on some of the comments that have been made, I 

think it’s important to acknowledge, requiring disclosure when 

someone purchases a radio or TV ad does not prohibit or inhibit 

free speech, nor does holding those purchases in a public file. The 

Supreme Court has long recognized that commercial speech, such 

as political advertisements, is not subject to the same protections 

as a citizen’s comment to speak up in the public square. 


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I appreciate Mr. Chavern’s comment that applying those disclosure requirements to internet-based advertisements should be no 

different than what happens with radio and TV media. And I also 

appreciate Congressman Raskin’s comment that certainly this bill 

doesn’t solve all of the problems that we saw in this last election 

cycle, but this would at least solve the discrete issue of the public’s 

right to know whether a foreign actor is trying to purchase an ad 

on the internet. 

So I have a bunch of questions, but I’m going to try to limit 

them. 

First, for Mr. Rothenberg, because you spoke to the challenges 

associated with perhaps the burden of keeping the file. If the public 

file requirement were on the purchaser of the ad or on the campaign, I guess my question is, how could the government ensure 

compliance by foreign actors if we went in the direction that you 

suggested previously? 

Mr. ROTHENBERG. Well, I’m not sure that you could assure that 

no matter whom you put the burden on. It will always be difficult 

if front groups, and then front groups beyond front groups, can actually take out the ad. It doesn’t matter where the burden is placed 

in that regard. 

But I would say that one of the problems that I have with the 

Honest Ads Act is it’s placing the burden in no small part on smaller publishers that don’t have the financial wherewithal to shoulder 

that burden and when they’re not the ones that are actually responsible for placing most of those ads. 

Mr. KILMER. So let me dive into the detail of that with Mr. 

Chavern. The Honest Ads Act would apply an FCC-style political 

file requirement to the largest platforms that sell paid online political ads. It currently defines a large online platform as those with 

50 million unique U.S. visitors per month. So I guess I might suggest that that might differentiate from the concern that you just 

raised. 

I guess, Mr. Chavern, my question is, what’s your view on that 

figure? Do you have a sense of what types of platforms would be 

captured at that level? 

Mr. CHAVERN. Off the top of my head, it’s hard for me to deal 

with specific metrics other than clearly at this point in time there 

are two large social media platforms that get the bulk of peoples’ 

attention and ad revenue. That may change over time, by the way, 

so we will need some metric of size. 

I would come back to one thing Mr. Rothenberg stated that I certainly agree with. With regard to the Honest Ads Act, with regard 

to the stated purpose of equal treatment, I think we’ve talked a lot 

about that today and how there may be value in that, we’re still 

studying the implications of all the components of it, in particular 

the repository and database and what kind of database—for any 

platform, by the way—is required in this new kind of converged 

digital age. 

But fundamentally, to answer your question, there’s two clear 

candidates right now in terms of online platforms, but we’ll have 

to consider the fact that there may be others and different ones in 

the future as there always are. 


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Mr. ROTHENBERG. I can answer that, Mr. Kilmer. It would include companies like Hearst, Conde Nast, Meredith, Vox, Vice 

Media, basically a lot of newspapers and magazines that are not 

in a position to take on extra burdens, financial burdens, in reporting. Fifty million unique users in the internet world is actually not 

a lot. 

Mr. KILMER. Thank you, Mr. Chairman. 

Mr. HURD. The gentleman from Maryland, Mr. Sarbanes, you’re 

now recognized for 5 minutes. 

Mr. SARBANES. Thanks very much, Mr. Chairman, for permission 

to participate today in the hearing. Thank you for taking this issue 

as seriously as you have. 

I also want to thank Ranking Member Kelly for her focus on this. 

And I want to thank my colleague, Derek Kilmer from Washington, 

for his leadership on the Honest Ads Act, which I think is a critical 

step as we prepare for the elections next week—next year—although it could be next week. It seems like it’s coming fast and furious, and that’s why we need to get ready for it. 

Is there anyone on the panel who thinks that right now we have 

an adequate level of disclosure with respect to spending on political 

advertisements on online platforms to be ready for the next election? Does anyone think that disclosure is adequate? 

Mr. DICKERSON. I predicted you would be the one. 

Mr. DICKERSON. I do. 

Mr. SARBANES. You do. But I don’t see anybody else, let the 

record show. 

I don’t think it’s adequate. I think that if we’re going to be ready, 

as you were saying, Mr. Rothenberg, we have got to anticipate 

what comes next. It’s hard sometimes to do that. But I would think 

putting a baseline regime of disclosure in place with respect to 

what is happening online would be one thing that we could do to 

be more ready than we are now. 

And so we’re obviously going to encourage our colleagues to continue to push very hard for this kind of disclosure, which, as the 

hearing has indicated, is not out of line with the expectations that 

have been created with respect to the broadcast industry over time. 

And the public, I think, has indicated through polling data that it 

wants to see this kind of information as well. 

I’m curious what you would say about whether advertisers 

should be allowed to make money from foreign election interference. I mean, how would you answer that question, Mr. 

Vandewalker? Do you think that advertisers should be able to 

make money on foreign interference in our elections? 

Mr. VANDEWALKER. Well, I mean, I think within reason we 

should be preventing foreign interference in our elections, and it 

logically follows from that that companies shouldn’t be able to 

make a profit from it. 

Mr. SARBANES. Any others? 

Mr. GOODMAN. Yes. I think the question really needs to be refocused, because the issue is not whether, for example, somebody 

makes money off an ad, but whether an advertiser that’s foreign 

is permitted to participate in U.S. elections. And I think that is one 

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ments needs to be addressed, which is that online platforms, like 

broadcasters, have no enforcement authority. 

If Boris and Natasha, who have been mentioned before, they say, 

yes, we’re U.S. citizens or we have a U.S. company, either an online platform or a newspaper or a TV station have no way really 

to determine whether that’s accurate. And that’s why I think this 

has to be a government responsibility. 

Mr. SARBANES. But I do think it goes to the question of what 

kind of expectation we should have from the advertisers themselves, what sort of responsibility they should carry to promote this 

kind of disclosure, to keep track of these kinds of things. 

I don’t think, as you indicated, Mr. Rothenberg, that we can, for 

example, rely on campaigns to enforce these standards. I don’t 

think that’s realistic. I think the advertisers or the platforms that 

are receiving these purchased advertisements are in a better position to do that. It may not be easy out of the gates to construct 

these new regimes or algorithms, but they can construct algorithms 

for just about everything else in the world, they should be able to 

do this in order to enhance disclosure. 

I’m going to run out of time, so I wanted to ask one other question of you, Mr. Vandewalker. And that is the FEC takes a lot of 

hits these dates, and in certain regards it is not functioning in the 

way it should. But there are some things that the FEC is able to 

do pretty well. It collects information that’s submitted by campaigns every quarter. It digests that and it produces it in a very 

accessible way on its online platform so people can go there and get 

information about what is happening in terms of the spending on 

the campaigns themselves. 

So do you have any reason to think that the FEC would not be 

able to handle the responsibility of administering what’s being envisioned under the Honest Ads Act in terms of information being 

collected, public files being produced, that being put in a place 

where the public can see it easily? Isn’t that a function that the 

FEC could undertake at this point? 

Mr. VANDEWALKER. Yes. As you mentioned, that’s one of the 

things that the FEC is actually good at. And they recently revamped the public face of those disclosures, making them more 

searchable online. And certainly policies could be developed in cooperation with social medias of the world who are very good at putting things online, I think, to make it all feasible and usable. 

Mr. SARBANES. Thank you. I yield back. 

Mr. HURD. Thank you. I recognize myself for another 5 minutes. 

Mr. Dickerson, I want to follow up on something Mr. 

Vandewalker said. Does a Russian in Russia have First Amendment rights in the United States? 

Mr. DICKERSON. A Russian in Russia certainly has fewer First 

Amendment rights than an American or than a Russian would 

have on American soil. 

Mr. HURD. Gotcha. 

Mr. Goodman, can the Government of Russia buy an ad saying, 

‘‘Come to Moscow’’ on broadcast television? 

Mr. GOODMAN. There is no restriction which prohibits a foreign 

government from buying an ad. I think there would be a restriction 


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on them buying an ad, which would be explicit advocacy, because 

that would be illegal under U.S. election laws. 

Mr. HURD. So the Russian Government, if they wanted to buy an 

ad on broadcast that said, ‘‘Don’t send weapons to Ukraine,’’ what 

would govern that? 

Mr. GOODMAN. There are disclosure requirements, and I’m certainly no expert in the disclosure requirements with respect to foreign participation in U.S. media. But other than that, assuming 

they comply with those disclosure requirements, there is no prohibition on their speaking in the U.S. 

Mr. HURD. Does the Foreign Agent Registration Act have anything to do with that disclosure or that purchase of—— 

Mr. GOODMAN. That’s exactly what I was referring to. 

Mr. HURD. Gotcha. 

Mr. Chavern, can the Russians run a political advertisement in 

the newspaper saying, ‘‘Don’t send guns to the Ukraine’’? 

Mr. CHAVERN. I believe it would not count as express advocacy, 

and I—— 

Mr. HURD. If they said, ‘‘Call your Congressman and tell them 

don’t support sending guns, American guns to the Ukraine’’? 

Mr. CHAVERN. Once you get into issue advocacy, I have the 

same—I would have the same question as Mr. Goodman about foreign agent—— 

Mr. HURD. Mr. Rothenberg, can the Russians run a digital ad 

that tells you to call your Congressman and tell them not to support sending American guns to the Ukraine? 

Mr. ROTHENBERG. Mr. Chairman, I’m not an expert on that, so 

I cannot answer that question. 

Mr. HURD. Mr. Vandewalker, do you have an opinion on either 

one of those three scenarios that I just brought up? 

Mr. VANDEWALKER. You know, so one of the things that could get 

at that is the political file requirement, which would, again, not be 

prohibition, but would be—— 

Mr. HURD. So let me ask you, is there some piece of law, court 

case, that regulates whether the Russian Government could buy an 

ad on print, broadcast, or digital that says, ‘‘Call your Congressman 

and tell them to not send guns to Ukraine’’? 

Mr. VANDEWALKER. Not that I’m aware of. 

Mr. HURD. And just for the record, I’m supportive of sending 

guns to the Ukraine. I just want to make that clear. 

Mr. VANDEWALKER. Right. It could be an electioneering communication if it were 60 days within an election and mentioned someone running for reelection. 

Mr. HURD. Mr. Dickerson, your opinion on one of those three scenarios. 

Mr. DICKERSON. My opinion is—I’m pleased to finally hear the 

Federal—the Foreign Agent Registration Act raised because it basically is a political file. I mean, this is a law that requires essentially any— And it’s a very broad definition of political public communication at very low dollar thresholds to be filed with the Department of Justice, to have physical copies of the ad filed with the 

Department, to have a disclaimer on the front of the ad saying it’s 

being paid for by a foreign government. 


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I mean, I think a lot of the tragedy of this conversation is that 

in our efforts to get at Russian activity we’re ignoring the tool 

that’s directed at foreign actors and instead trying to expand laws 

that by definition impact American political speech. 

And given the scope of the existing FARA, and the fact that it 

could be expanded if it was this committee’s interest to not only 

foreign agents but also foreign principals, that strikes me as a 

much narrower, much more constitutionally defensible way of 

building the political file that’s being discussed here, precisely because it’s targeted at foreigners and not Americans. 

Mr. HURD. So right now your understanding of FARA is that it’s 

for agents of the government, it doesn’t include principals of the 

government? 

Mr. DICKERSON. That’s my understanding. 

Mr. HURD. Mr. Raskin, you’re now recognized. 

Mr. RASKIN. Mr. Chairman, thank you very much. I’m going to 

follow up on your questions. 

Listening to the testimony, I recognize that what’s at stake here 

really is the integrity of liberal democracy in our century. You 

know, Vladimir Putin and his agents understood they could not 

compete with us militarily, they could not compete with us economically, and they could not compete with us politically on a fair 

stage because they’ve got nothing to sell but tyranny and despotism 

and kleptocracy. 

But he detected a little bit of an Achilles’ heel in the United 

States, which is our openness, and specifically our openness, our 

freedom of expression on the internet, which might be the most 

wide open of all of the forums in media that we have. So he took 

advantage of that. 

And I think everybody here agrees that we were caught sleeping. 

And there were hundreds of thousands of dollars, perhaps millions 

of dollars spent to invade every nook and cranny of the internet in 

order to inject poison into our political process and to try to gerrymander the outcome of our election. 

Now, let me ask this. First of all, can we do this in reverse? For 

example, would we be allowed to spend whatever money we wanted, either as a government or private entities in the United States, 

in Saudi Arabia, in Iran, in Russia, in the Philippines? Do the authoritarian societies allow people from the liberal democracies to 

access their public with such ease? Does anybody have an answer 

to that? 

Mr. Rothenberg. 

Mr. ROTHENBERG. Well, yes, for generations we did that through 

the Voice of America and various other arms of the United States 

Government, and did it very effectively. 

Mr. RASKIN. But what about the purchase of TV ads in Saudi 

Arabia or Iran or Russia, the purchase of radio ads? I understand 

there is the Voice of America, which is announced, which is disclosed, and it clearly comes from the United States. But what about 

the kind of surreptitious penetration of the public consciousness 

that took place in 2016 here? 

Mr. ROTHENBERG. Well, history shows us that we have all played 

games in each other’s countries with each other’s media for generaVerDate Nov 24 2008 14:27 Jan 08, 2018 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 H:\27762.TXT APRIL

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tions. I’m not defending it or decrying it, I’m just stating a fact that 

I think we’re all aware of. 

Mr. RASKIN. Yeah. And there’s no doubt that the U.S. Government has intervened to destabilize democracies, as in Chile, as in 

Iran, and that’s something, obviously, that real small ‘‘d’’ democrats 

oppose and have tried to stop in our history. 

But perhaps we need some kind of global understanding about 

giving the people of every society the right, first, to free and fair 

elections in democratic government, and then the right to pursue 

those elections without covert interference by foreign nations. 

Well, let me ask this question. The FECA makes it unlawful for 

any foreign national directly or indirectly to make a contribution 

or donation in connection with a Federal, State, or local election. 

That doesn’t use the language of express advocacy, it says any contribution or donation in connection with an election. 

Would it be within the constitutional authority and province of 

Congress to ban—and I think perhaps the chairman was asking 

this question too—not just express advocacy spending by foreign 

nationals, corporations, and governments, but also any political advertising taking place during the election season? 

Would we have the authority to do that to foreign nationals on 

the theory that they don’t enjoy the First Amendment rights of the 

American people, or indeed of, I think, even permanent residents 

of the country, people who are here and our part of the country? 

Does anybody have an opinion on that? 

Mr. DICKERSON. I think the problem, Congressman, is less the 

matter of the First Amendment than a matter of vagueness. I 

mean, as I know you’re aware, the Supreme Court in Buckley said 

that precisely that language was unconstitutionally vague in the 

sense that actors couldn’t, as a matter of due process, determine 

what was and wasn’t covered. The danger with these sort of words 

like—— 

Mr. RASKIN. Well, we’ve drawn the line between express advocacy and then just generalized political advocacy. Because the line 

exists, we’ve got two separate categories, and our campaign laws 

apply for American citizens on one side but not the other, but perhaps they could apply on both sides for people or entities, foreign 

governments and corporations that decide they want to get involved in our elections. What do you think about that? 

Mr. DICKERSON. I think we’re already there. I mean, express advocacy is banned by foreigners and foreign governments. 

Mr. RASKIN. But we want to go beyond that to all political spending during our campaigns. For example, if it turns out that the 

Russian Government cleverly got itself involved with alt-right activities, it tried to get involved with Black Lives Matter, it was 

doing everything possible to exacerbate tensions in our country, 

which we live with to this very day. 

Mr. DICKERSON. I would think the Department of State would 

have views on this. From the point of view of the First Amendment, that is probably permissible provided that things are defined 

in a way that is understandable. And, frankly, Congress has a bad 

track record on that. 

Mr. RASKIN. And, of course, they have the right to speak voluntarily and freely through public platforms where they’re anVerDate Nov 24 2008 14:27 Jan 08, 2018 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 H:\27762.TXT APRIL

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nounced, and they’ve got a right to do a Facebook page, which is 

not the spending of any money. 

But it just seems to me that when we talk about the expenditure 

of money in the political system, that’s where it gets to be very 

dangerous because you can’t rerun an election. And one contaminated election can take a country down a very dark road. 

I yield back to you, Mr. Chairman. 

Mr. HURD. Thank you. 

I recognize myself for another 5 minutes. 

This set of questions is for Mr. Chavern, Mr. Goodman, Mr. 

Rothenberg. 

We’ll start with you, Mr. Rothenberg. How much does it cost a 

month to host a website. 

Mr. ROTHENBERG. Oh, my goodness. I mean, you can do it for 

under $20 a month. 

Mr. HURD. Mr. Goodman and Chavern, would you agree about 

the cost? 

Mr. CHAVERN. [Nonverbal response.] 

Mr. GOODMAN. [Nonverbal response.] 

Mr. HURD. Are you familiar with WordPress. 

Mr. ROTHENBERG. Yes, certainly. I had a blog on WordPress. 

Mr. HURD. How much does that cost? 

Mr. ROTHENBERG. Right now I don’t know. I think you can actually go up on WordPress for—there might be a free option. 

Mr. HURD. I believe there is a free option. 

Mr. ROTHENBERG. Yeah. 

Mr. HURD. When people do advertising on a digital platform they 

fill out some form, right, upload the copy, that form gets stored 

somewhere, and that gets pushed out, right? 

Mr. ROTHENBERG. Essentially. It’s a good summary. 

Mr. HURD. So there’s an electronic record of it? 

Mr. ROTHENBERG. That I can’t speak to. I don’t know how evanescent those are or are not. 

Mr. HURD. But could there be an electronic record? 

Mr. ROTHENBERG. I imagine, yes. 

Mr. HURD. Could it get exported to an Excel document or a 

Google Sheet? 

Mr. ROTHENBERG. I imagine, yes. It doesn’t sound like it would 

be that difficult. 

Mr. HURD. And if you already own a website, publishing an Excel 

document or a Google Sheet, how much does that cost? 

Mr. ROTHENBERG. Give me the question again, sir. 

Mr. HURD. If you already own a website, right, how much does 

it cost to publish a Google Sheet or an Excel document to that 

website? 

Mr. ROTHENBERG. If I already have, say, a WordPress site and 

I want to—I mean, you can upload that relatively simply, it’s di 

minimis, yes. 

Mr. HURD. Zero cost, right? 

So I’m curious, Mr. Goodman and Mr. Chavern, would you disagree with any of those or would you agree with Mr. Rothenberg’s 

comments in all that? 

Mr. CHAVERN. Yes. 


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Mr. HURD. So I’m curious to know what burden we’re putting on 

someone to publish the information of who’s advertising? 

Mr. ROTHENBERG. Well, first of all, the ads that are going onto 

my WordPress blog, if I’ve enabled it to take advertising, are not 

being bought—not being sold by me directly. I have nothing to do 

with it, it’s all an automated—— 

Mr. HURD. So what is the burden that we are putting on the person that is displaying that ad on your individual website? 

Mr. ROTHENBERG. Well, one of my concerns, as I expressed before, with the way the Honest Ads Act is worded, it would put the 

burden on me to keep those records. 

Mr. HURD. So what is the burden? 

Mr. ROTHENBERG. Even though I have no involvement in the actual sale or distribution of that advertising. 

Mr. HURD. And I know it’s hard to address everyone, right, and 

I get that, but are they expunging all that information, the people 

that are collecting the advertising dollars on what’s being promoted? 

Mr. ROTHENBERG. Presumably they have it, but you’re asking me 

to keep the records, and I don’t have any of those records. 

Mr. HURD. So the person that has the record, what burden would 

it be for them to publish the details of that? 

Mr. ROTHENBERG. That I don’t know. It depends upon who it is 

and where they are in the system. 

Mr. HURD. Mr. Goodman, do you have an opinion when it comes 

to broadcasting? 

Mr. GOODMAN. I think there are two questions. One is, if you ask 

who is paying for the ad, that is what broadcasters already do. 

There is a considerable amount of complaint that that isn’t really 

that informative. In other words, if it’s Citizens for Good Government who actually that is, it’s not clear. 

Mr. HURD. And the broadcaster goes back and asks and says, 

‘‘Who’s your counsel?’’ or, ‘‘Who’s your executive committee?’’ and 

they don’t give you an answer. I get that. I’m not asking for enforcement. I’m asking, what burden is there to publish the information, the data that is already in hand? 

Mr. GOODMAN. The information is currently uploaded to websites 

that are really run by the FCC, and it has proven not to be a very 

significant burden to most TV stations. 

Mr. HURD. Gotcha. 

Mr. Chavern. 

Mr. CHAVERN. The one thing I’d note is in the website example 

you gave, obviously the website viewed by you would have some 

sets of ads. If I viewed the same website, they might likely have 

a totally different set of ads served programmatically by the adtech platforms. 

So I think you also have to take into account volume. And again, 

these programmatic systems have no human touch related to them. 

And the volume of ads and deciding, for example—— 

Mr. HURD. It is the same amount of effort to publish a 10-line 

Excel document or spreadsheet as it is to publish a 10-million line? 

I know the answer. 

Mr. CHAVERN. Okay. 


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Mr. HURD. Same level of effort, because you’re not collecting it. 

If you’re collecting the information automatically, right? So to display it, there’s no difference in displaying 10 lines versus a million 

lines. 

Now, you may have to pay for the size of the file. But I’m getting 

at I keep hearing over and over the burden to publish data that 

is already in hand. You already have the data. What’s the burden? 

Mr. ROTHENBERG. It’s where you’re placing the burden. If you’re 

placing the burden on a place that—— 

Mr. HURD. On whoever has it. Who’s collecting it. 

Mr. ROTHENBERG. Okay. That depends upon how you write the 

requirements. 

Mr. HURD. Mr. Dickerson, do you have any opinion in all of this 

exchange? 

Mr. DICKERSON. No. 

Mr. HURD. Mr. Vandewalker? 

Mr. VANDEWALKER. No. I’m excited to hear the answer. 

Mr. HURD. Parting wisdom. I don’t have any time left, but I’ll extend some of that time to you all. 

Ten seconds, Mr. Vandewalker, what is it that you wish this 

committee would know about this topic that you haven’t been able 

to address. 

And that’s the same question for all you all. 

Mr. Dickerson, it better be good because you’re going to be last, 

okay? And you don’t have to saying. If the answer is we got it, we 

got it all. 

Mr. VANDEWALKER. I think the committee got it all from our perspective. 

Mr. HURD. Great. Thank you. 

Mr. Rothenberg. 

Mr. ROTHENBERG. I think industry self-regulation, managed industry-wide, with tough and tight enforcement, can actually go further than this Congress can go in enforcing the rules. 

Mr. GOODMAN. I think that whatever you do, it needs to be clear 

so that the rules are understandable and the responsibility for enforcement is also well-established. 

Mr. CHAVERN. Let’s take this moment to figure out what rules 

about political advertising makes sense, no matter what the platform. And that doesn’t mean being taught by what happened before. Let’s take this moment to say what really makes sense and 

what do we need. 

Mr. HURD. Mr. Dickerson, don’t let me down. 

Mr. DICKERSON. The courts have allowed us to establish disclosure requirements, record-keeping burdens, things of this nature, 

only insofar as the underlying speech is directed at an election. 

And, to the extent that we are toying with using foreign intervention, which we can separately regulate, as an excuse to undue that 

burden, I think we are wading into territory that is far less charted 

than some of the testimony has suggested. 

Mr. HURD. Well, gentlemen, I want to thank you all for being 

here today and appearing before us. 

The hearing record will remain open for 2 weeks for any member 

to submit a written opening statement or questions for the record. 


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If there’s no further business, without objection, the subcommittee stands adjourned. 

[Whereupon, at 3:55 p.m., the subcommittee was adjourned.] 


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APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD


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Questions for Mr. David Chavern 

President and CEO 

News Media Alliance 

Questions for the Record submitted by Chairman Will Hurd 

Subcommittee on Information Technology 

Committee on Oversight and Government Reform 

Question 1. Is it allowable under current rules, regulations and laws for a foreign agent to buy an 

advertisement in a newspaper today that did not expressly advocate for the election or defeat of a 

candidate? 

If the answer is yes, what would be the disclosure or notice requirements for identity of the entity who 

purchased it? 

Answer: We are not aware of any current laws that would prevent such a purchase. If the term 

"foreign agent" is used as it is defined in the Foreign Agents Registration Act ("FARA"), purchasing 

such an advertisement may give rise to disclosure or labeling obligations for the agent under that 

statute. The applicable FARA responsibility would fall to the agent purchasing the advertisement. 

Question 2. Is it allowable under current rules, regulations and laws for a foreign country to buy an 

advertisement in a newspaper today that did not expressly advocate for the election or defeat of a 

candidate? 

If the answer is yes, what would be the disclosure or notice requirements for identity of the entity who 

purchased it? 

Answer: We are not aware of any current laws that would prevent such a purchase. FARA may or may 

not apply in such circumstances depending on the relevant facts. 

Question 3. In your testimony, you advocated several times for regulations to be platform agnostic. 

Does that mean you would accept requirements for print media to keep a political file? 

Answer: My member companies deliver their news content however their readers want to receive it, 

be it in print, desktops or mobile devices. As technology platforms continue to evolve we believe it is 

reasonable for Congress and Federal agencies to evaluate whether platform-specific regulations 

adopted years ago make sense in our converged digital world. 

As far as the political file requirement, this is a regulation placed on broadcasters who must adhere to 

the "lowest unit rate" and other public interest requirements as a consequence of receiving a 

government license to use the public airwaves. Imposing this political file requirement on printed or 

digital news media likely would not survive First Amendment scrutiny. However, I suspect that many 

newspapers would voluntarily maintain some form of a political file for the public to view if other 

media, including digital platforms, did so. 
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November 15,2017 

The Honorable Will Hurd 

Chairman 

Subcommittee on Information Technology 

Committee on Oversight and Government Reform 

2157 Rayburn House Office Building 

Washington, D.C. 20515-6143 

Dear Mr. Chairman: 

Law Offices of Jack N. Goodman 

jack@jackngoodman.com 

0:202-776-2045 

M: 202-251-7507 

F: 202-296-2014 

I am pleased to respond to your letter dated November 1, 2017, submitting two post-hearing 

questions you propounded for the record of the hearing on October 24, 2017 relating to 

"Oversight of Federal Political Advertisement Laws and Regulations." 

Question: Is it allowable under current rules, regulations and laws for a foreign agent to buy an 

advertisement on television today that did not expressly advocate for the election or defeat of a 

candidate? 

If the answer is yes, what would be the disclosure or notice requirements for identify of 

the entity who purchased it? 

Answer: Insofar as this question relates to rules and regulations of the Federal Communications 

Commission ("FCC") and provisions of the Communications Act of 1934, as amended, a foreign 

agent would be allowed to purchase an issue advertisement on a U.S. television station. FCC 

rules do not bar anyone from purchasing issue advertising, although unlike candidate ads, 

television stations are not required to accept issue advertising and could choose not to accept 

purchases from particular entities. Stations also would have the authority to censor or require 

edits to such issue advertisements. 

With respect to disclosure or notice, if the proposed advertisement related to "any political 

matter of national importance," as defined in the Bipartisan Campaign Reform Act of2002 

("BCRA"), as part of the agreement to purchase time on a station, the advertiser would be 

required to disclose the identity of the person or entity purchasing the time; the name, address 

and telephone number of a contact person; and a "list of the chief executive officers or members 

of the executive committee or of the board of directors" of the advertiser. That information must 

1200 New Hampshire Ave., NW, Suite 600, Washington, DC 20036 
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The Honorable Will Hurd 

November 15,2017 

Page2 

be placed by the television station in its online public file, and the station must also upload 

whether it accepted or rejected the proposed purchase, the rate charged for the time, the class of 

time purchased, and the date and time when any advertisements were broadcast. 

If the advertisement does not relate to "any political matter of national importance," but does 

involve a political matter or a "discussion of a controversial issue of public importance," 4 7 

C.F.R. § 312( e) requires the station to place in its online public inspection file "a list of the chief 

executive officers or member of the executive committee or of the board of directors of the 

corporation, committee, association or other unincorporated group, or other entity" paying for 

the advertisement. Stations are also required under 47 C.F.R. § 312(d) to air an announcement 

during the advertisement "fully and fairly" disclosing the true identity of the individual or entity 

paying for the announcement. Further, when "an agent or other person or entity" contacts a 

station on behalf of another, the station is required to use "reasonable diligence" to "identifY the 

person or persons or entity on whose behalf the agent is acting." 

In addition to FCC requirements, where the responsibility for compliance is imposed at least in 

part on broadcasters, there may be additional disclosure requirements that apply to the advertiser 

under federal election laws administered by the Federal Election Commission, under the Foreign 

Agents Registration Act, or under other laws. 

Question: Is it allowable under current rules, regulations and laws for a foreign country to buy 

an advertisement on television today that did not expressly advocate for the election or defeat of 

a candidate? 

If the answer is yes, what would be the disclosure or notice requirements for identify of 

the entity who purchased it? 

Answer: With respect to the rules and regulations of the FCC and the provisions of the 

Communications Act, the answer is the same as to the question of an advertisement being 

purchased by a foreign agent. There are no FCC rules or provisions of the Communications Act 

that apply different standards or requirements for announcements paid for by a foreign country. 

There is, of course, a direct prohibition of foreign contributions to candidates for election to 

federal office, but it is not clear that an advertisement that did not expressly advocate for or 

against the election of a federal candidate would be viewed as a contribution to a federal 

campaign, and responsibility for compliance with that requirement is placed on the advertiser 

and not on broadcast stations. And other provisions of law may limit such expenditures or 
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The Honorable Will Hurd 

November 15, 2017 

Page3 

require additional disclosures. But it is not uncommon for foreign governments to place 

advertisements in U.S. media to express viewpoints, and a ban on their speech might also raise 

questions under the First Amendment. 

Please let me know ifl can provide any additional information. 

cc: The Honorable Robin L. Kelly, Ranking Minority Member 

Kiley Bidelman (by e-mail) 
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November 15, 2017 

Via email to Kiley.Bidelmon@mail.house.gou 

The Honorable Will Hurd 

Subcommittee on Information and Technology 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

2157 Rayburn House Office Building 

Washington, D.C. 20515 

Re: Questions for the Record 

Dear Chairman Hurd: 

I 

Thank you again for the opportunity to testify at the "Ove1·sight of Federal Political 

Advertisement Laws and Regulations" hearing on October 24, 2017. Per your request, this 

letter responds to the Questions for the Record you sent on November 1, 2017. 

QUESTION 1: Is it allowable under current rules and laws for a foreign agent to 

buy an advertisement online today that did not expressly advocate for the 

election or defeat of a candidate? If the answer is yes, what would be the 

disclosure or notice requirements for identity of the entity who purchased it? 

Yes, an agent of a foreign principal, as that term is defmed under the Foreign Agents 

Registration Act ("FARA''), is allowed to purchase online advertisements, as long as they do 

not expressly advocate the election or defeat of a clearly identified candidate for federal office 

under the Federal Election Campaign Act ("FECA"). The advertisement would have to 

include a statement that identifies the name of the agent and the foreign principal and the 

agent would have to file copies of the advertisement with the FARA Unit at the Department 

of Justice. In addition, the agent would have to file periodic reports with DOJ about its 

activities. 

FECA Restrictions on Foreign National Advertising 

The FECA provides that "[i]t shall be unlawful for a foreign national, directly or indirectly, 

to make ... an expenditure, independent expenditure, or disbursement for an electioneering 

communication."' The FEC's implementing regulations expand this slightly by saying that a 

"foreign national shall not, directly or indirectly, make any expenditure, independent 

1 G2 U.S. C.§ 30121(a)(I)(C). 
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expenditure, or disbursement in connection with any Federal, State, or local election."' In 

addition, "[n]o person shall knowingly provide substantial assistance in the making of an 

expenditure, independent expenditure, or disbursement prohibited" by the regulations.3 

A special three-judge court that hears challenges to the FECA has interpreted the statute as 

prohibiting foreign nationals "from making expenditures to expressly advocate the election 

or defeat of a political candidate; and from making donations to outside groups when those 

donations in turn would be used to make contributions to candidates or parties or to finance 

express-advocacy expenditures.''4 The court explained that the FECA "does not bar foreign 

nationals from issue advocacy-that is, speech that does not expressly advocate the election 

or defeat of a specific candidate."5 The court then said that the "line between prohibited 

express-advocacy expenditures and permitted issue-advocacy expenditures for purposes of 

this statute is the line drawn by the Supreme Court ... : An express-advocacy expenditure is 

one that funds 'express campaign speech' or its 'functional equivalent."'6 Finally, the court 

explained that under Supreme Court jurisprudence. an "advertisement is the 'functional 

equivalent' of express advocacy if it 'is susceptible of no reasonable interpretation other than 

as an appeal to vote for or against a specific candidate.'"' 

Thus, an agent of a foreign government could purchase an online advertisement that talks 

about issues, as long as it does not expressly advocate the election or defeat of a candidate. 

Disclosure and Notice Requirements Under FARA 

Because the ads in question would not expressly advocate the election or defeat of a 

candidate, the FECA would not impose any disclaimer or disclosure rules. FARA, however, 

includes a requirement that agents must include notices on informational materials and file 

those with the DO,J. Disseminating issue-based ads would generally fit within FARA's 

definition of political activity, which includes activity that the agent intends will influence 

any agency or official of the U.S. government or any section of the public within the U.S. with 

reference to formulating, adopting, or changing the domestic or foreign policies of the U.S. or 

' 11 C.F.R. § 110.20(1). 

'Id. § ll0.20(hJ(2). 

4 Bluman v. FEC, 800 F. Supp. 2d 281, 284 (D. D.C. 2011). affirmed by 132 S. Ct. 1087 (2012). 

5 Id. 

'!d. 

'Id. at 285. 

2 
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with reference to the political or public interests, policies, or relations of a government of a 

foreign country or a foreign political party and therefore require registrations 

When they register, foreign agents must provide information about themselves, their clients, 

the contract with the client, and the work they plan to do. 9 In addition, they must file periodic 

reports every six months detailing the work done, political contributions the agent has made, 

payments received, funds disbursed, and informational materials disscminated.JO 

Although the statute and regulations refer to informational materials in terms of print 

materials, such as newspapers and periodicals, books, pamphlets, sheet music, photographs, 

pictures, maps, advertisements, and lithographs, 11 the DO,J registration forms and 

instructions adapts the term "informational materials" to include electronic 

communications. 12 These forms specifically request a foreign agent to identify whether it will 

disseminate informational materials that are "Email," "Website URL(s)," "Social media 

website URL(s)," and other forms of electronic communications. 13 

Informational materials must include a "conspicuous statement" on all informational 

material that identifies the name of the registrant, the name of the foreign principal, and 

advises that the recipient may obtain information about the registrant via DOJ's FARA 

Registration U nit. 11 

Other Disclosure Requirements 

It is worth noting that if an online ad seeks to influence state legislation, state law may 

require additional disclaimers. For example, Washington requires sponsors of online 

advertising campaigns that attempt to influence the passage or defeat of legislation to 

register and report if they spend more than $700 in a one-month period (or more than $1,400 

in a three-month period)l 5 Texas requires a disclaimer that identifies the communication as 

' 22 U.S.C. § 611(o). 

9 Id. § 612(a). 

w I d.§ 612(b). 

n Id. § Gll(nl. 

p, Id .. Section,,-., Question lfi. 

Question 15, available a.t 

Id. § Gl4(b): 28 C.F.R. § 5.402(a) (recognizing that such statements at the beginning of material will be 

considen:d conspicuous). 

15 See RE\'. CODE. WASH.§ 42.11A.640. 

3 
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a "Legislative Advertisement" and that includes "Paid for by" language. 16 There are no 

analogous federal rules for online advertising that seeks to influence federal legislation. 

QUESTION 2: Is it allowable under current rules, regulations and laws for a 

foreign country to buy an advertisement online today that did not expressly 

advocate for the election or defeat of a candidate? If the answer is yes, what 

would be the disclosure or notice requirements for identity of the entity who 

purchased it? 

Yes, as explained above with respect to ads purchased by foreign agents, the FECA prohibits 

foreign entities-which would include a government-from paying for ads that expressly 

advocate the election or defeat of a candidate but does not prohibit issue advertising. Unlike 

ads purchased by agents of a foreign principal, there are no disclaimer or disclosure 

requirements that apply. For comparison purposes, an ad placed on broadcast television by 

a foreign government would require a sponsor-ID message under applicable Federal 

Communications Commission rules. 

The lAB appreciates the opportunity to provide these responses to your Questions for the 

Record. The lAB and its member companies are committed to transparency in online political 

advertising, and we look forward to working with you on this important issue. Please contact 

me at 212-380-4717 with any questions. 

Sincerely, 

Randall Rothenberg 

President and CEO 

Interactive Advertising Bureau 

4