by Kleinbard

Congress and various federal agencies have been grappling for months over how to combat foreign interference in U.S. elections. Despite widespread acknowledgment that Russia interfered in the 2016 presidential election, there doesn’t seem to be much political will to develop and implement prevention mechanisms for future elections. But, in an unexpected bi-partisan move, the Federal Election Commission (the “FEC”) has decided to flex its regulatory muscle and develop disclaimer rules intended to expose foreign meddlers.

The FEC’s regulatory authority in this context is somewhat limited. In administering the Federal Election Campaign Act (the “Act”), the FEC has the responsibility to develop and implement electioneering disclaimers, and to enforce the Act’s prohibition of electoral spending by foreign nationals. Over the years, mostly due to partisan gridlock, the FEC has seldom acted to advance rules intended to address technological innovation or a generally changing campaign climate. The agency’s inaction has left many wondering how and if the outdated rules apply to online communications. We know that disclaimers are required on direct mail, campaign websites and traditional television advertisements – but what about tweets? Or Facebook posts? Or pay-by-click ads?

After spending the last 6 years soliciting public input on potential rulemaking, the FEC finally decided to act. Hundreds of public comments poured in from Facebook and Google, good government groups, political professionals, and individuals concerned with the implications of rules on free speech and democracy. While it remains to be seen what rule will actually be proposed and whether the agency will have the teeth to enforce it, we know that public engagement on the issue forced the FEC to do something it rarely does – act.