New State Law Requires More Transparency From Social Media Political Ads

 Governor Jerry Brown signed a bill requiring social media organizations to disclose the top three funders behind political advertisements that appear on social media.

“This is part of a much larger conversation now. The timing of the bill was opportune,” said Kathy Feng, executive director for California Common Cause, a political transparency group that supported the bill. Brown signed the bill Sept. 26, but did not issue a statement about it.

The Social Media DISCLOSE Act comes after its author, Assemblyman Kevin Mullin (D – San Mateo), and political transparency advocates raised concerns over unprecedented campaign finance spending following a landmark 2010 U.S. Supreme Court decision, which ruled political spending by corporations and unions is a form of protected speech under the First Amendment.

Justice Anthony Kennedy, in the 5-4 ruling on the Citizens United v. Federal Election Commission case, wrote: “[A] prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.”

He added: “Political speech is ‘indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation.’”

When a corporation makes a donation to a campaign, “it has to be disclosed,” said Feng. “The challenge is when a corporation or any kind of secret entity wants to fund social media ads to support a candidate independently, the 2010 ruling has essentially allowed big corporations to spend directly on those kinds of ads without having to go through a rigorous vetting process or disclosure mechanism.”

Starting in 2020, the Social Media DISCLOSE Act (AB-2188) will require political ads on social media funded by outside money to link to information on the committees that paid for them and specify its top three contributors.

Such ads were not required to do so under the previous California DISCLOSE Act, also introduced by Mullin and enacted in 2017, which applied to more traditional media like print, television and radio ads.

Social media platforms that sell ads directly to advertisers will be required to keep a database of any political ad disseminated on the online platform by a committee that purchased $500 or more in ads within a year.

This database will be a publicly accessible page of the site, and will include an approximate number of impressions generated from each ad; information on the amount charged for and spent on the ad; identifying information about the candidate or the ballot measure to which the ad refers; and the name and identification number of the committee that paid for the ad.

Facebook and Twitter already have databases for political advertisements and their funders, after both platforms came under scrutiny following the 2016 U.S. presidential election and concern over viral fake news and misinformation campaigns.

For example, searching California’s 39th Congressional District candidate Gil Cisneros on the Facebook Ad Archive yields mostly ads that are paid for by his campaign.

However, the database also shows that the Congressional Leadership Fund — a Republican Super PAC — ran a number of now-inactive attack ads since August on Cisneros over sexual harassment allegations made against him by Melissa Fazli.

Fazli has since recanted her accusations, according to the Los Angeles Times, but not before some of the attack ads received around 5-10,000 impressions on Facebook. Attorneys for Cisneros’ campaign sent cease-and-desist letters to Facebook and TV stations running the ads.

 

The Facebook ads, which cost between $100-500, link to the Congressional Leadership Fund’s Facebook page, but a list of the ad’s top three funders is not displayed.

Hugh Bower, Mullin’s Chief of Staff who helped work on the bill, said in a phone interview it’s unclear if Facebook and Twitter already meet every single one of the requirements outlined in the new bill, though both sites and other platforms had expressed their support in numerous meetings with Mullin and his staff. Bower said they even had a sit-down with YouTube.

“The biggest hangup we had with those platforms was figuring out the logistics of how the sites would comply,” Bower said, adding it hasn’t been determined if social media ads for U.S. presidential candidates would look different to California users than those from other parts of the country.

“They may have to make a few tweaks,” Bower said. “We didn’t want something so onerous that things couldn’t get done; but we were adamant that what we wanted was not that difficult. My guess is they would adopt the California requirements nationwide.”

Brandon Pho is a Voice of OC intern. Contact him at [email protected]or on Twitter @photherecord.