Opinion: Social media wrap: California watchdog recommends Internet political campaign regulations

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Meg Whitman and Jerry Brown should take note, as should Barbara Boxer and Carly Fiorina. Arnold Schwarzenegger, meanwhile, probably has little to fear (other than the looming specter of attempting to sign a budget before he’s termed out of the governor’s office).

Politicians nationwide who increasingly turn to Twitter, Facebook and YouTube to complement their traditional media campaigns also should pay attention: A California political watchdog group on Monday released a report that says standards that applied to “old media” campaigns also should hold true for new-media activity.

Top issue for the state’s Fair Political Practices Commission is likely to concern disclosure – i.e., has someone been paid to tweet or post to Facebook on behalf of the politicians or their fund-raising groups? Bloggers and independent social-media users, the report recommends, will not be targets (unless they are paid by a politically affiliated group up to a certain threshold).

The commission basically recommends that politicians’ Internet-based campaign literature stick to the same rules that regulate slate mailers, direct-mail fliers and certain advertisements. It also suggests an update to California’s 36-year-old Political Reform Act, or PRA, is needed to include hitherto unthought-of technologies like the interwebs.

And cast in the light of the great success, er, of campaign finance regulation in states and nationwide in the past and California’s sterling record, er, in enacting successful political initiatives, the recommendations may turn out to be toothless for this year’s elections at least.

But what does it add to simmering debates ...

... on campaign finance and internet regulation going forward?

A five-member commission will consider the report Aug. 12., but any action in terms of regulating posts and tweets – not least legislation that would be required in many areas to enforce it -- likely will not be taken before the Nov. 2 midterm elections, according to the watchdog group’s executive director, Roman Porter.

Porter also told the Ticket that the commission is attempting to minimize any effect from the recommendations on bloggers and independent Facebook and Twitter users, although the report recommends that bloggers disclose voluntarily whether they are being paid or not (only when payment reaches $1,000 does the activity come under the PRA).

He also said the recommendations are unlikely to consider the issue of politicians’ aides tweeting under their names (to a collective sigh of relief from politicians nationwide).

Porter added: “The concept is [that] if there are things being done to communicate to voters that are paid and already regulated, like TV ads and mailers, but they’re sent over Internet, those are things that should be regulated.

“A lot of people have big-government concerns. Freedom of speech is a real concern. They [commission members] recognize that the Internet is a great environment for having robust discussions on political issues and they don’t in any way want to suppress that.”

Jon Fleischman of the FlashReport is quoted in the report as stating that “requiring someone to give even one character of their 140-character ‘Tweets’ is a burden on speech.”

Two passages in the report will be of much interest to social-media users and campaign staff: The first is regarding full disclosure in tweets, which the report suggests could be difficult because of 140-character limitations and was subject to some debate during testimony to subcommittees in Northern and Southern Calfornia.

The report explains: “In a comment letter, Tech America … saying that to require disclosure on small spaces (Google ads, Tweets, etc.) would be unconstitutional as a prior restraint on speech and content-based regulation. That position is not the mainstream view, however, nor is it seen as the best understanding of the jurisprudence, as Professor Richard Hasen, one of the nation’s leading election law scholars, explained in his testimony. The majority of panelists encouraged a balanced approach that provides disclosure but does not interfere unnecessarily with the platform used to communicate.

‘People who post on Twitter regularly offer shortened hyperlinks to direct a reader to a full story or source. Examples include this recent post from the Sacramento Bee’s “Capitol Alert”: CapitolAlert Karen Bass clears path to Congress with primary win http://bit.ly/b36cc2. Additionally, Jerry Brown’s user name on Twitter includes his committee name (“Jerry Brown 2010”) and clicking on that committee name brings one to his Twitter home page. His homepage lists his name, location, web address, and brief biographical information. Many “Tweeters” are able to produce their messages in less than the 140 characters allowed by creating a journalistic headline and providing a link for more information. While the full disclosures of top donors, etc., would not be practical, there are reasonable ways to provide recipients of Tweets with relevant disclosure.”

The second issue – and a red flag to any bloggers worth their salt – concerns money: “Suggestions by panelists to address some of the concerns raised at the hearings included increasing the expenditure thresholds that trigger the PRA’s provisions regulating a “committee”; encouraging self-regulation among participants; not allowing any apparent limitation of a particular platform to discourage appropriate and careful regulation; avoiding regulating “Internet hobbyists”; and encouraging a campaign finance disclosure system that is interoperable across jurisdictions. To do this, the panelists recommended that the Commission focus on the role that money plays in campaigns and providing voters information about the influence of money. Moreover, clear goals should be articulated to guide regulatory action now and in the future.”

Regulating the Internet is a momentously tricky issue at a state and national level, perhaps on par with the tangled mess of campaign finance initiatives. (A source at the FPPC tells the Ticket that while there has been “some early conversation” from the Federal Election Commission on regulating Internet-based political campaigning, there’s been “no great progress.”) Cast alongside the old maxim that a camel is a horse designed by a committee, and really these recommendations right now don’t carry much weight.

For the future, chances are that any recommendations will be watered down like said camel in the legislative stage. In California, there’s no shortage of politicians willing to promote regulation and a similar number willing to fight it.

New medium, same old politics.

-- Craig Howie

The report’s recommendations, written in further delightful commission-ese also include:

The Subcommittee held two hearings that included more than a dozen campaign consultants, Internet experts, public interest advocates, representatives of the Federal Election Commission (FEC) and others. Based on this testimony and extensive research conducted by the Commission staff, the Subcommittee formulated four basic principles to guide further regulatory action and statutory change:

• Full and truthful disclosure of campaign activity, including Internet activity, by candidates and political committees, is required to ensure the integrity of democratic institutions and the electoral process.

• If regulations require disclosure with respect to paid political communications that are printed or broadcast, then similar paid communications that are disseminated over the Internet should be accompanied by similar disclosures.

• The Commission should avoid regulating volunteer, grassroots political activity and ensure to the extent possible that the Internet remains a flourishing source of robust and vibrant political discourse among citizens.

• The Commission should broadly interpret the words of the Political Reform Act to allow regulation consistent with these principles and the objectives of the PRA. Legislative change should be written to allow flexibility in future regulatory responses to the use of technology that is evolving rapidly and in unanticipated ways.

These principles, in turn, informed the development of specific recommendations for regulatory and statutory changes set forth in Section IV of this report. The Subcommittee’s recommendations are also based on the successful work of the Federal Election Commission in this area. The Subcommittee’s recommendations include:

1. Paid advertising on the Internet should be subject to the same disclosure requirements applied to advertising that is printed or broadcast. In addition to legislative changes to the
2 Political Reform Act necessary to achieve this objective, the following regulatory changes should be pursued by the Commission:

• To ensure that a committee sending a mass campaign email is appropriately identified as a committee sending a mass mailing, the Commission should interpret Section 84305 to require such identification and make clarifying changes to Regulation 18435 as soon as possible.

• Regulations applying to paid advertisements should be extended, to the greatest extent possible, to paid advertisements on the Internet. To this end, the Commission should revisit its earlier determination in Regulation 18450.1 that the advertisement disclosure provisions of the PRA do not apply to any “web-based or Internet-based communication.”

The Subcommittee received testimony from the following individuals: Jennie Bowser, National Conference of State Legislatures; Campaign Consultants Steve Maviglio, Forza Communications, Bryan Merica, ID Media, and Julia Rosen, The Courage Campaign; Kim Alexander, California Voter Foundation; Derek Cressman, Common Cause; Tiffany Mok, ACLU; Tracy Westen, Center for Governmental Studies; Jon Fleischman, The Flashreport; public officials Ellen Weintraub, Federal Election Commissioner, and Tony Miller, Chief, Political Reform Division, California Secretary of State; and Professors Jeffrey Cole, USC Center for the Digital Future, Geoffrey Cowan, USC Annenberg School for Communication and Journalism, Richard Hasen, Loyola Law School, and Barbara O’Connor, California State University, Sacramento.

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