Navigating Political Ads: How to Be an Informed Citizen When Lying Is Legal
During election season, political advertisements seem to be everywhere we look. Though some of us may feel a fervent desire to ignore them, it’s not possible to completely escape their reach. Nor should we tune them out entirely, since they present opportunities to learn about candidates and hold our elected officials accountable.
Political ads are clearly designed to influence us in a specific way (usually to convince us to vote for or against a certain candidate). The questions we should ask ourselves about the ads we see or hear include: Who is trying to influence us? (i.e., Who paid for this ad?) and, What is their objective? (i.e., What are the political priorities or interests they are promoting?)
Perhaps the most important underlying question for us individually is: How can we engage with political ads as informed citizens who critically evaluate the messages that are disseminated?
Well, the blunt answer is this: Within today’s realities, it’s actually impossible to be fully informed in this regard. Because of insufficient transparency requirements and the rise of dark money, we don’t always know who is paying for some of these ads. But rather than throwing up our hands and giving up in frustration, there are still important things we can do to practice critical thinking skills.
1. Learn a bit about the regulation (or lack thereof) of political ads.
The first step to becoming an informed citizen regarding political ads is arguably the most boring: Enhance your understanding of just a few of the seemingly mundane details about how political ads are (or are not) regulated. We’re here to help. Here are a couple of things to know.
For starters, most of the existing regulations for campaign spending on political advertising were designed with television or broadcast ads in mind. Online political advertisements are a very recent phenomenon, and the laws that were in place didn’t apply to them in the same way. For instance, online ads were not subject to the disclosure requirements that apply to radio, TV, and printed ads. For TV and radio ads, these requirements include a “stand by your ad” provision, which requires candidates to transparently take responsibility for the content in their broadcast ads.
In contrast, online advertising can take numerous forms, such as social media posts, website banner ads, search engine optimization, text messages, embedded videos, etc. These methods are likely to be constantly changing as technology advances, so it is difficult to even know what forms of regulation would be the most effective, especially when ads can be targeted to specific individuals with algorithms based on your digital footprint (a method called microtargeting). This is different from television or radio ads where microtargeting is generally not possible because everyone within the same area sees or hears the same thing.
However, there has recently been some movement toward improving regulation of online ads. After several years of pressure on the Federal Election Commission (FEC) to establish new rules for online ad disclaimers, a final rule was voted on by commissioners in December 2022 and went into effect in March 2023. Though the language of the rule was scaled back in late 2022 to apply the disclosure requirements to fewer online ads than initially intended, this still marks a step forward in the regulation of online political ads, because more online ads will be required to disclose who paid for them.
Previously, disclaimers were only required for ads placed for a fee on websites, but the new rule expands the scope of online ad requirements to encompass ads on any “digital device, application, or advertising platform.” However, these new requirements do not include a “stand by your ad” provision, like the one that applies to TV and broadcasting ads. It also remains to be seen how vigorously or effectively the FEC will enforce these new requirements.
Why is it important to regulate online political ads? Well, they are becoming more and more common. Research suggests the proportion of political spending on online ads compared to traditional ads, by both candidates and independent groups, has increased substantially in recent years. Additionally, the 2016 election revealed concerns about how undisclosed spending on online advertising is particularly vulnerable to foreign actors, who may finance artificial social media campaigns to try to influence election outcomes.
These circumstances create an environment where it is difficult for a voter to remain fully informed and objectively understand when they are being targeted by political advertisements and to what end.
2. Promote accountability by digging into data when it is available.
Even trained investigative journalists may have trouble following the money at times. However, that doesn’t mean we don’t have any tools at our disposal.
The easiest ads to identify their source are ads that are paid for directly by the candidates. This is because they’re required (by that “stand by your ad” provision mentioned above) to clearly identify who they are. Remember all those television ads that end with a video or picture of the candidate saying, “I’m Candidate Such-and-Such, and I approve this message”? These disclaimers are required to be “clear and conspicuous,” and the law for the written disclaimer requirement even specifies how long it must appear on the screen (at least four seconds) and how big it must be (at least four percent of the vertical height)!
Unfortunately, current laws do not establish extensive disclosure requirements for political ads paid for by outside groups. These include super PACs — which (unlike candidates) can spend unlimited money — and dark money groups , which do not disclose who their money came from. These outside groups often have very vague, banal names (such as “Senate Leadership Fund” or “Majority Forward”), so that it’s not possible to easily associate them with either Republicans or Democrats.
Of course, the assumption the Supreme Court made in the Citizens United case was that to be legal and protected speech, any spending by outside groups would need to be done independently of candidates’ campaigns so it wouldn’t pose any corruption risk that could undermine the confidence of voters. Sadly, we’ve seen all sorts of ways campaigns and outside groups continue to engage in illegal coordination, often distorting the letter of the law to avoid the spirit of the law (for a fascinating example of this, read about redboxing.)
So if you come across a political ad that leaves you with that subtle feeling that you’ve been the target of a manipulation tactic (either for or against your previously held views!), make note of the name of the group that paid for the ad, go online, and see what you can find. Here are two websites that can be a great place to start:
Open Secrets: This website has a wealth of information. During election season, you can compare candidates side by side and see how their largest donors and fundraising practices vary. You can also find out how much money advertisers are spending on online political ads on Google and Facebook.
You can look up your current members of Congress or state elected officials to see which PACs or industries are their top donors, and you can look at which races feature the most outside spending and which races draw the most dark money. You can check out who the biggest donors are or look up a specific big donor’s name to see which candidates they are funding.
Federal Election Commission: The FEC has a great “compare candidates” tool where you can select your state, district, and the election you’re interested in and explore campaign finance data for the relevant candidates. You can also see which outside groups made independent expenditures to support or oppose particular candidates. You can look up the name of a specific committee to see how much money they’re spending to support or oppose certain candidates, or you can look up the name of an individual donor to see where their money is going.
It might take a few minutes to feel comfortable navigating these websites, but it’s worth it for the opportunity to be more informed about the political advertising happening around you as you decide who to vote for.
3. Fact check the political ads you encounter to verify accuracy.
The truth is, political ads may contain lies — and generally speaking, that’s not illegal!
Sometimes we forget this simple fact, because the commercial ads we encounter on a regular basis are subject to different rules. There are laws in place that keep commercial ads from making false or misleading claims about their product or company. This is not the case with political candidates. Because of their First Amendment rights of free speech, it is perfectly legal in most places for them to create ads with false statements about their intentions or their political opponents.
The question about whether media companies that distribute these ads can be held responsible is a little trickier. For instance, broadcast (TV and radio) stations are not allowed to arbitrarily select whose political ads they broadcast. Since radio waves are considered a limited resource, the FEC regulates their use. Consequently, broadcast stations have the choice to not run any political ads at all or allow any candidate who wants to air them. Because of this requirement to air them unfiltered, they are also not liable for their contents. However, this only applies to ads from the candidates themselves; broadcast stations can choose to reject ads from outside groups.
In contrast, since cable television channels do not depend on a limited resource, they are allowed to pick which political ads to run and which to avoid. At the same time, they can be held liable for ads with lies and could be sued for libel. Similarly, newspapers can choose whose ads they want to run and whose they don’t, and thus, they can be held responsible for false ads as well.
Like newspapers and cable television, social media companies can choose which political ads to run and which to reject. However, social media companies are not considered publishers, so they aren’t legally responsible for false ads that other people spread on their platforms. And contrary to a common misperception, free speech rights don’t apply within private social media companies, which have their own authority to establish policies about misinformation or content appropriateness and can choose to exclude individuals who violate them.
Some experts argue that since lying in political ads is considered protected free speech, we need more strenuous disclosure requirements and greater transparency, so that — at the very least — we know who is paying for blatantly false political ads. Some state legislatures have taken the matter into their own hands and passed legislation requiring fact checking in political ads, though this has occasionally led to pushback from the courts.
So, when you come across an ad that doesn’t ring true, take the time to fact check some of its basic claims to see if it’s promoting facts or falsehoods. Then, use this information as you decide who to vote for. Consider taking it a step further by writing to candidates (especially if they are incumbent elected officials) and encouraging them to stick to the truth in future ads.
4. Advocate for legislative reform that would improve transparency.
While MWEG is not currently engaged in any formal member advocacy efforts supporting specific legislation for campaign finance reforms, MWEG members may wish to write to their elected officials about the need to have laws that support transparency and accountability in political ads.
An example of one potential legislative reform that applies to online political ads is the Honest Ad Act, which was introduced in 2017 with bipartisan cosponsorship. This bill would go further than the new FEC rules to extend the same disclaimer and disclosure requirements that currently apply to television and broadcast ads to online ads as well. In order to increase transparency to the public, it would also require large digital platforms to create accessible archives of online political ads purchased by individuals or groups for $500 or more. This act was also designed to prevent foreign interference in elections, because the lack of regulations of online ads leaves the U.S. vulnerable to foreign actors financing political ads on social media platforms without any transparency.
Proponents of the Honest Ad Act argue that holding online ads to the same standard as other political ads would protect our national security and enhance the ability of citizens to be informed voters, while opponents argue that increasing disclosure requirements would undermine the right to free speech for Americans by exposing donors who may prefer privacy.
Stay tuned for a discussion of more potential legislative reforms that would strengthen disclosure requirements and increase transparency in campaign finance.
Part 1: “An Introduction to Federal Campaign Finance”
Part 2: “A Deeper Dive: Citizens United, Super PACs, and Dark Money”
Part 3: “Navigating Political Ads: How to Be an Informed Citizen When Lying Is Legal”
Part 4: “A Brief Exploration of Potential Campaign Finance Reforms”
