A Medium-Specific First Amendment Analysis on Compelled Campaign Finance Disclosure on the Internet.

• Author: Usoro, Millicent

TABLE OF CONTENTS

1. Introduction 301 II. Background 303 A. The Supreme Court Has Consistently Upheld the Constitutionality of Disclosure Requirements for Paid Political Advertising 303 B. Citizens United and Its Progeny Have Upheld the Constitutionality of the Disclaimer and Disclosure Provisions of the BCRA 305 C. Federal Courts Have Been Wary of the FCC's Sponsorship Identification Requirements for Radio, Broadcast Television, and Cable, Particularly the "Reasonable Diligence" Duty 307 1. Early Developments of FCC Sponsorship Identification Requirements 307 2. Additional Disclosure Requirements, Yet a Lack of Enforcement 309 III. Examples of Medium-Specific Analyses 310 A. The First Amendment Effects of the Scarcity of Spectrum, the Role of Gatekeepers, and Editorial Discretion 310 1. Broadcast: Red Lion, Pacifica, and the Scarcity Rational 310 2. Cable and Print: Editorial Discretion as a Factor in a Medium-Specific Analysis 312 IV. Constitutional Considerations for a Medium-Specific Analysis on Campaign Finance Disclosure for Online Political Ads 314 A. Underlying Rationales in Medium-Specific Analyses as Applied to the Internet 316 1. Editorial Discretion and the Internet as a Conduit of Speech 316 2. The Potential Anticompetitive Effects of the Internet 318 B. Disclosure Requirements for Online Political Ads Would Survive Strict Scrutiny Under a Medium-Specific Analysis 320 1. Preserving Electoral Integrity as a Compelling Government Interest 322 2. Deference to National Security 323 V. Conclusion 324 I. INTRODUCTION

   In the wake of growing public concern over Russian attempts to influence the 2016 presidential election, Senators Mark Warner, John McCain, and Amy Klobuchar introduced the Honest Ads Act (the "Act") on October 19, 2017. (1) The Act's primary goal is to "enhance transparency and accountability for online political advertisements by requiring those who purchase and publish such ads to disclose information about the advertisements to the public." (2) The Act would begin by closing cavernous regulatory loopholes regarding political advertising by extending "electioneering communications" and reporting requirements for political advertising to paid political ads on the Internet. (3) Online platforms, such as Facebook, Twitter, Google, and other social media sites would be responsible for making "reasonable efforts" to make sure political ads sold on these platforms were "not purchased by a foreign national." (4) Platforms would also be required to maintain a searchable database of political advertisements that were bought for over $500. (5)

   Social media giants and online platforms were predictably slow to come to terms with their ancillary, yet fundamental, role in Russian meddling in the 2016 presidential election. Mark Zuckerberg's initial reaction to public concern over Facebook's role in spreading "fake news" was flippant, publicly stating that it is a "pretty crazy idea" that fake news on Facebook "influenced the election in any way." (6) Social media platforms and First Amendment advocates often raise freedom of speech and privacy concerns if there is momentum in Washington to impose regulations on the Internet. (7) Specifically, they argue that these platforms are not considered public entities--like television and radio--and therefore have not been given licenses from the government and cannot be compelled to comply with the same public record requirements. Moreover, online platforms are wary of lifting the veil on anonymous speech online and of liability, should they fail to meet the reporting requirements of the Act: "Facebook ... has long been concerned about assuming any sort of media watchdog role and the company's objection usually takes the form ... of its well-worn argument that Facebook is a technology company, not a media company." (8)

   However, this Note argues that the unique nature of the Internet justifies the government's regulation of online campaign finance disclosure because of its substantial role in public discourse. Furthermore, closing regulatory loopholes to "ensure political ads sold online are covered by the same rules as TV or radio stations" should not automatically trigger constitutional suspicion. (9) A medium-specific First Amendment analysis of the Internet is appropriate because the Supreme Court has historically used such analyses for other mediums of communication and therefore, this is generally consistent with First Amendment jurisprudence. (10) Furthermore, because the Supreme Court has centered its analysis on the physical characteristics and technology of the medium at hand, (11) a medium-specific analysis illuminates the ways in which the Court has resolved and distinguished the constitutional issues that stem from government regulation.

   Section II will present background information, including an overview of campaign finance law, Supreme Court decisions upholding the constitutionality of disclosure requirements in campaign finance laws as they relate to the First Amendment, and sponsorship identification requirements imposed by the FCC for political ads on radio, television, and satellite broadcasting. Section III will compare the Supreme Court's treatment of broadcasting with other mediums of communication. Section IV will apply the rationales from previous medium-specific analyses by the Supreme Court and determine if they apply to the Internet. Section IV will also consider additional constitutional issues that are applicable in campaign finance law, such as the government's compelling interests in national security under First Amendment strict scrutiny.

2. BACKGROUND

   The federal government regulates campaign finance disclosure in two ways: through the Federal Elections Commission ("FEC") reporting requirements under the Federal Election Campaign Act and through FCC sponsorship identification requirements for paid political ads aired on radio, broadcast television, and cable.

   1. The Supreme Court Has Consistently Upheld the Constitutionality of Disclosure Requirements for Paid Political Advertising

      The Federal Election Campaign Act ("FECA"), enacted in 1971, was Congress's first attempt at comprehensive campaign finance reform. (12) Almost immediately after the 1974 Amendments (which created the FEC), (13) various candidates running for federal office, as well as political parties and organizations, brought a constitutional challenge to the law in Buckley v. Valeo. (14) Plaintiffs challenged the limits on contributions and expenditures following the 1974 FECA amendments on the grounds that they violated the First Amendment, and the Supreme Court agreed. (15) However, the Court focused a substantial amount of its opinion on the constitutionality of the FECA disclosure requirements, which the Court upheld. (16) Under a strict scrutiny analysis, laws burdening speech are only upheld if the law furthers a compelling government interest and is narrowly tailored to achieve that interest. (17) The Court articulated three government interests for mandatory disclosure:

      First, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office ... Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity ... A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return ... Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above. (18) The Court declared that FECA's disclosure requirement was not per se unconstitutional because compulsory disclosure was required only if the communications "expressly advocate[d] the election or defeat of a clearly identified candidate." (19) Most notably, the Buckley Court articulated that disclosure requirements "appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption." (20)

      However, after Buckley, the influence of money continued to be a prominent feature of federal elections, as an increase in "soft money" ads in campaigns and issue advocacy--which was not covered under FECA--skyrocketed. (21) The Bipartisan Campaign Reform Act of 2002 ("BCRA") (22) sought to close these loopholes by banning soft money and expanding disclosure requirements to corporations, individuals, and unions that fund "electioneering communications." (23) BCRA defines electioneering communications as "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate" made 60 days before a general election, or 30 days before a primary election and "is targeted to the relevant electorate." (24) This statutory term constitutes a narrower and clearer definition of communications that expressly advocate for the election or defeat of a candidate than the Buckley Court prescribed. (25) The Supreme Court upheld the constitutionality of the expanded disclosure requirements in a facial challenge against the BCRA in McConnell v. FEC, citing the same compelling government interests as it did in Buckley. (26)

   2. Citizens United and Its Progeny Have Upheld the Constitutionality of the Disclaimer and Disclosure Provisions of the BCRA

      Citizens United sparked fierce debate over the role of money in politics, with critics correctly predicting enormous amounts of corporate contributions and spending in future elections. (27) Citizens United, a nonprofit corporation, challenged provisions of the BCRA that prohibited corporations and unions from using treasury funds for speech that qualifies as electioneering communications. (28) The Supreme Court held that the government cannot...