Last week, the Federal Election Commission advanced the process for two long-awaited rules that would improve transparency for online political ads and promote greater equity in who has the means to run for office. Bipartisan progress in both areas is a departure from the regulatory gridlock that has plagued the commission for more than a decade, and it deserves to be celebrated. But there is only so much the FEC can or will do — congressional action remains as important as ever.
The FEC is one of the few federal agencies with evenly divided leadership. Republican and Democratic leaders typically each select half of the six commissioners regardless of which party controls the White House or Congress. In recent years, sharp ideological divisions between the two parties regarding the proper scope of campaign finance regulation have left the agency frequently paralyzed and unable to update regulations to account for a changing legal and technological landscape.
Nowhere has this been more evident than in online political advertising. Most of the commission’s rules for online ads date back to 2006, when social media was in its infancy. In particular, the rules for which ads must carry disclaimers telling the viewer who paid for them are riddled with loopholes. The commission began a rulemaking process in 2011 to try to address this problem, but it wasn’t until December 1 that it advanced a final rule that purports to require transparency for most online ads, including those on social media.
But there is a catch. First, the final draft of the rule and statements by several commissioners after the vote raise concerns about remaining loopholes — most notably for organic content that campaigns or others pay to promote. For instance, while the new rule covers ads placed on Facebook, it might not cover a professionally produced video uploaded to YouTube and then promoted by a paid influencer. Whether and how the FEC will clarify this issue remains to be seen.
More fundamentally, the new rule won’t apply to all online campaign ads. Notably, it won’t cover ads placed by “dark money” groups that don’t disclose their donors unless the ad contains certain expressly electoral words such as “Vote for” or their equivalent, which most do not. Such ads accounted for over $130 million of the dark money spent in the 2020 federal elections, according to the Center for Responsive Politics (2022 numbers are not yet available). This limitation is not the commission’s fault — it does not have the statutory authority to require more transparency for these ads.
Real, comprehensive transparency for online campaign spending will have to come from Congress. Most of the critical changes that are needed can be found in the bipartisan Honest Ads Act, which was recently reintroduced by Senate Rules Committee Chair Amy Klobuchar (D-MN). Nothing the FEC has done negates the need for this legislation.
The FEC’s second important advance was proposing changes to the regulations governing how candidates can use campaign funds to support themselves and their families while they run for office. Running for office today is often a full-time job that can preclude other paid work, placing candidates without significant personal wealth at a disadvantage. And while candidates are allowed to use campaign funds to pay themselves a salary, the rules are skewed against those who earned less or were full-time caregivers. As the Brennan Center pointed out in comments submitted to the FEC in 2021, the status quo disproportionately impacts people of color, women, LGBT individuals, and working-class people of all backgrounds (many of whom already face other barriers to running for office).
This rulemaking process is still in an early phase. The commission approved a “Notice of Proposed Rulemaking” that asks the public to comment on a variety of possible changes, including raising the cap on what candidates who didn’t come from lucrative jobs can pay themselves as a salary and allowing candidates to use campaign funds to cover certain essentials, like childcare and health insurance. Such changes would be a positive step toward allowing individuals from all walks of life to serve in elected positions — but the FEC still has a way to go before the changes are enacted. And once again, a deeper overhaul to make running for office accessible to more Americans would require legislation.
Nevertheless, even incremental progress at the FEC is welcome. Its paralysis has too often left key legal and policy issues unaddressed, and there is value in providing clear guidance to candidates and parties as to their legal obligations. But advocates will need to continue to push the FEC to fulfill its mission to safeguard the integrity of the political process — and push Congress to update the law to respond to contemporary challenges.
