[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF FEDERAL POLITICAL ADVERTISEMENT LAWS AND REGULATIONS
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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
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Printed for the use of the Committee on Oversight and Government Reform
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Committee on Oversight and Government Reform
Trey Gowdy, South Carolina, Chairman
John J. Duncan, Jr., Tennessee Elijah E. Cummings, Maryland,
Darrell E. Issa, California Ranking Minority Member
Jim Jordan, Ohio Carolyn B. Maloney, New York
Mark Sanford, South Carolina Eleanor Holmes Norton, District of
Justin Amash, Michigan Columbia
Paul A. Gosar, Arizona Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee Stephen F. Lynch, Massachusetts
Trey Gowdy, South Carolina Jim Cooper, Tennessee
Blake Farenthold, Texas Gerald E. Connolly, Virginia
Virginia Foxx, North Carolina Robin L. Kelly, Illinois
Thomas Massie, Kentucky Brenda L. Lawrence, Michigan
Mark Meadows, North Carolina Bonnie Watson Coleman, New Jersey
Ron DeSantis, Florida Stacey E. Plaskett, Virgin Islands
Dennis A. Ross, Florida Val Butler Demings, Florida
Mark Walker, North Carolina Raja Krishnamoorthi, Illinois
Rod Blum, Iowa Jamie Raskin, Maryland
Jody B. Hice, Georgia Peter Welch, Vermont
Steve Russell, Oklahoma Matt Cartwright, Pennsylvania
Glenn Grothman, Wisconsin Mark DeSaulnier, California
Will Hurd, Texas Jimmy Gomez, California
Gary J. Palmer, Alabama
James Comer, Kentucky
Paul Mitchell, Michigan
Greg Gianforte, Montana
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
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Subcommittee on Information Technology
Will Hurd, Texas, Chairman
Paul Mitchell, Michigan, Vice Chair Robin L. Kelly, Illinois, Ranking
Darrell E. Issa, California Minority Member
Justin Amash, Michigan Jamie Raskin, Maryland
Blake Farenthold, Texas Stephen F. Lynch, Masschusetts
Steve Russell, Oklahoma Gerald E. Connolly, Virginia
Raja Krishnamoorthi, Illinois
C O N T E N T S
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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
OVERSIGHT OF FEDERAL POLITICAL ADVERTISEMENT LAWS AND REGULATIONS
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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.
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 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.
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 incentives 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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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 advertising 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 ad-driven 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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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 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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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.
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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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 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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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 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 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.
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 algorithms, 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.
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.
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 self-regulatory 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?
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 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 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.
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, 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.
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.
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, inflammatory 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.
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.
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 of the issues that if there are going
to be further disclosure requirements 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 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.
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 generations. 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
announced, 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.
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 ad-tech 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.
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.
If there's no further business, without objection, the
subcommittee stands adjourned.
[Whereupon, at 3:55 p.m., the subcommittee was adjourned.]
APPENDIX
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