As social media become more popular, it is inevitable that enterprising politicians will use it promote themselves, connect with constituents, and garner votes. The White House has a blog, several Senators and House members tweet, and elected officials and candidates at all levels of government are using social media to get out their messages.
But just as use of social media by voters is coming into conflict with existing election laws, some politicians are discovering that their use of social media may clash — or at least create possible problems — with existing campaign and government disclosure laws.
Last summer, a Congressman's use of his cell phone to post pictures of a GOP "pep rally" on the House floor and a subsequent press conference prompted a partisan dust-up over archaic "franking" rules (large pdf) which required House members to post official content only on the house.gov domain — no embedded YouTube videos or Scribd documents, no Facebook posts, no Tweets, no Qik videos. The House Administration Committee eventually changed the rules to allow postings on other sites, within certain guidelines:
The official content of any material posted by the Member on any Web site must be in compliance with Federal law and House Rules and Regulations applicable to official communications and germane to the conduct of the Member’s official and representational duties.The Committee also announced that it was considering other rule changes to accommodate new social media technologies.
When a link to a Web site outside the Member’s official cite is imbedded on the Member’s official site, the Member’s site must include an exit notice advising the visitor when they are leaving the House. This exit notice must also include a disclaimer that neither the Member nor the House is responsible for the content of the linked site(s). (Source)
The Senate Rules Committee adopted similar rules, with much less rancor.
Another rule that may be archaic is the policy, adopted in 2000 and reinforced in 2003, generally prohibiting federal agencies from using web-tracking technologies such as persistent cookies on their sites. The Obama Administration was criticized in its early months for using cookies on the new White House web site, and for using commercial sites (such as You Tube) with cookies. (The prior administration also had this problem). In July, the Office of Management and Budget solicited comments on this policy, see 74 Fed. Reg. 37062, with a view towards loosening the restrictions to allow customization of federal web sites.
Politicians' use of social media for campaigning can also conflict with federal, state and local campaign laws.
Because the main focus of federal campaign laws is campaign spending, their application to social media is unclear. In response to a federal court decision on the issue, see Shays v. Federal Election Commission, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005), reh’g en banc denied (Oct. 21, 2005), the Federal Election Commission amended its regulations in 2006 to make paid advertisements on the Internet subject to its regulations on election spending by campaigns, political parties, and coordinated activities. But the Commission explained that this action did not affect political activities on the Internet by others. "Everyday activity by individuals, even when political in nature, will not be affected by the changes made in this rulemaking," the Commission stated in its notice of the rules change. 71 Fed. Reg. 18589 (April 12, 2006).
As explained by David Ardia on this blog and in more detail by the FEC and in the Center for Democracy & Technology's Net Democracy Guide, the revised regulations come into play when more than $1,000 is spent with the "major purpose" of influencing a federal election; ads (paid and, in some circumstances, free) are placed for candidates; or funds are solicited for candidates.
State rules are a different matter. For example, a candidate for mayor of St. Petersburg, Florida may have run afoul of the state's campaign laws that require disclaimers on all ads by placing disclaimer-less ads with Google, which limits the number of characters you can use. The Florida Election Commission has proposed a $250 fine for the omission, which the candidate — who lost the primary — is challenging. In response to this case, a bill has been introduced in the Florida legislature that would exempt Internet ads from the disclaimer requirement, as long as the ad links to a web site that contains the disclaimer.
In 2000, the American Bar Association urged all states to review and revise their election laws in light of new technologies, and several states have done so. Some examples:
- California's Fair Political Practices Commission declined to issue rules regarding campaign activity on the Internet in its first examination of the question in 2003, but is now re-examining the issue and plans to issue recommendations by June 2010.
- The Massachusetts Office of Campaign and Political Finance issued an interpretive bulletin on the "Use of Internet and E-mail for Political Campaign Purposes" in 2004 (revised in 2005). A recently adopted statute, effective in 2010 and revising the state's campaign finance, ethics, and lobbying laws, specifically excludes "internet or email communications" from the definition of the term "electioneering communication," which are subject to state regulation. See 2009 Mass. Gen. Laws ch. 28, sec. 24.
- In 2007, the Washington Public Disclosure Commission issued an interpretation of how the state's election disclosure laws apply to the Internet.
- In Wisconsin, the state's Government Accountability Board recently announced (Item F, p. 16 of pdf) that it would formulate a guide for "electronic communications and the use of electronic technology for political purposes."
Like many other things, these policies will have to evolve to remain relevant and effective in the Internet era.