There’s no election law about social media disclosures — but there oughta be

In the 1950s, record companies routinely and secretly paid radio disc jockeys to promote their songs. This “payola” scheme was perfectly legal until 1960 when Congress outlawed it by requiring broadcasters to disclose if airplay for a song had been purchased.

Fast-forward 60 years to the 2020 Democratic presidential nomination race. Former New York City mayor Michael Bloomberg broke no law when he paid campaign workers $2,500 a month to promote his candidacy from their personal social media accounts without requiring them to disclose this sponsorship. After Twitter suspended 70 of these accounts for “platform manipulation,” his campaign voluntarily asked its workers to identify themselves on their social media accounts.

As the newspaper comic strip used to say, there oughta be a law!

In the commercial world, there is. The Federal Trade Commission requires advertisers to ensure that their social media influencers “clearly disclose when they have been compensated in exchange for their endorsements.” FTC Commissioner Rohit Chopra recently said, “When companies launder advertising by paying an influencer to pretend that their endorsement or review is untainted by a financial relationship, this is illegal payola.”

But the FTC does not regulate political campaigns. The Federal Elections Commission does, and its current rules for social media companies do not require campaign influencer disclosures. 

Congress can fix this, and at the same time close other social media loopholes that threaten the integrity of our electoral process.  

Some social media companies have dropped political ads entirely. This is an understandable reaction to the unending swirl of controversies over fact-checking, fairness and disclosure. But social media companies play a central role in today’s political discourse, much the way broadcasters did and still do. Under federal law, broadcasters must allow candidates reasonable opportunities to use their airwaves to reach the electorate. Social media companies have to be responsible as well. A new law should require them to provide candidates with reasonable access to their platforms for political advertising. 

Some companies and elected officials think fact-checking candidate ads on social media will slow the spread of election misinformation. But the greater danger is that, under the guise of fact-checking, social media companies will manipulate election information. This fear of private manipulation of elections is the basis for the federal law that does not allow broadcasters to censor candidate ads. As I’ve argued elsewhere, a new law should extend this censorship ban to social media.

Ellen Weintraub, chair of the FEC, wants to ban targeted political ads because of their potential to direct misinformation to susceptible groups with little accountability. But banning or limiting targeting is not needed. The new election law could create an equal time rule for social media, modeled after the broadcast regulation, which would correct misleading targeted ads by allowing opposing candidates to respond to the same audience. 

The new law should also require disclosure of the content and sponsorship of political ads on social media, as is done in the proposed Honest Ads Act. This sponsorship identification has been mandatory for broadcasting for generations and needs to be extended to political ads on the internet and social media.

Mandating political fairness, as Sen. Josh Hawley (R-Mo.) does in his proposed legislation, might be a step too far. But what if social media companies are intentionally tilting the political discourse on their systems? Should that be a secret? Congress should require social media companies to promptly disclose it when they operate their systems to favor or disfavor a political party or a political candidate.

Researchers have discovered that some social media platforms skew political ads toward a partisan audience, even if the campaign did not seek this partisan targeting. If the campaigns want to reach both sides of the political spectrum, they have to pay extra.  Platforms should not create this disincentive for bipartisanship. The new campaign law should prevent platforms from introducing partisan targeting beyond what the campaigns themselves seek.

A new law that closes these loopholes in our current system, and perhaps others, might face a First Amendment challenge. But a strong case can be made that these reforms are constitutionally permissible. Given the dominance of social media in their markets and their central position in today’s political discourse, these measures are absolutely necessary to achieve the compelling government objective of ensuring the continued integrity of our electoral system.

Mark MacCarthy is senior fellow at the Institute for Technology Law and Policy at Georgetown Law.  Previously, he was senior vice president for public policy at the Software & Information Industry Association.