HARTFORD, CT — The Connecticut Broadcasters Association and the Connecticut Daily Newspaper Association are lobbying against legislation that seeks to target “online platforms” with reporting requirements for political advertising.
In an open letter to the General Administration and Elections Committee, which forwarded HB 7329 to the House on April 1 by a 12-3 vote, the news associations said the requirements in the bill would “create costly administrative burdens” and would act like a “hidden tax” on news organizations.
At the minimum, the bill would require them to create a single page website displaying all of their election ads, requests for advertising, and rates.
“The bill proposes to require reporting for requests for advertising, as well as actual transactions,” the associations wrote in their letter. “The number of requests for advertising for any entity that don’t come to fruition could number in the hundreds, if not thousands, making the reporting of those requests impractical and unrealistic.”
Under the bill, an “online platform” must maintain a complete record of purchase requests for qualified political advertisements by a person whose requests exceed $200 during a calendar year. The platform must make any such record available for online public inspection in a machine-readable format. Any person submitting a purchase request for a qualified political advertisement must provide the online platform with all the information it needs to comply with these requirements, according to the bill analysis.
The news associations also pointed out that “public disclosure of advertising rates could create a competitive disadvantage to any media companies that are soliciting sales of political advertising. The digital advertising marketplace is complex and published rates could be misleading, particularly if packaged with traditional time or space.”
The bill also includes a wide range of potential penalties for failure to comply, depending on the severity of noncompliance, starting with fines of up to $10,000 outside of 90 days before an election. However, within 90 days of an election, noncompliance can lead to a fine of up to $20,000 or twice the value of the ads related to the noncompliance, whichever is greater.
Further, the bill says that if the SEEC finds that any such failure is “knowing and willful,” then the penalty can be up to $50,000 or 10 times the amount of the total of all ads for which the “online platform” was noncompliant, whichever is greater. And the SEEC may then refer the matter to the office of the Chief State’s Attorney.
SEEC Executive Director Michael Brandi did not respond to requests for comment on the legislation Thursday, but testified that the requirement to maintain a separate website would help his agency better audit campaigns.
“Online ads are increasingly common and the disclosure laws are inadequate to allow for the post-election review and inspection of those ads, which is necessary when (public) campaign funds are spent to purchase these ads and especially when inadequate documentation is provided by vendors to substantiate the purchases, or dark money is used to purchase the ads,” Brandi told the General Administration and Elections Committee. “Changing technology and social [media] platforms, and other advertising networks can now target electronic ads at groups and individuals, they can be displayed for a moment, and then disappear without a trace or any easily available record. Our agency is tasked with investigating and enforcing violations surrounding these ads — we need the tools to do it.”
The news associations believe that all reporting responsibilities should fall on the person making the expenditure for the advertisement.
“Instead, the reporting requirements should apply only to those requesting or purchasing advertising (e.g., candidates and independent expenditure political committees), who are already in possession of the information the bill is seeking,” the associations wrote.
Sen. Matt Lesser, who introduced similar legislation in SB 642, regarding reporting by “online platforms,” said his intention was to target large tech companies like Facebook and Google, but the news associations are wary about what they see as an overly broad definition of “online platforms” in the bill.
Lesser said that in the last few weeks of his 2018 election campaign he was unable to get Facebook to adequately display his advertising even though the company said it was going to do it for free for all candidates in the days leading up to the election.
It’s unclear how Facebook changes its algorithm in these situations and that was frustrating to Lesser, who was running for state Senate for the first time.
“My intention was to make sure it targets big tech companies,” Lesser said Thursday of his legislation. “If we have to amend, then we’ll amend it.”
He said he had no intention of targeting news organizations.
Political advertising sales on television are already being regulated by the FCC and online ads currently require specific disclosures regarding the top five donors or links to more information about the group with the financial information.
David McGuire, Executive Director of the ACLU of Connecticut, also submitted testimony in opposition to SB 642, suggesting that its restrictions run counter to constitutional free speech protections.
“Senate Bill 642 would inappropriately include in the above mentioned categories an expenditure that displays the name, face, or voice of a candidate 90 days or less before an election if the expenditure was ‘not made neutrally or evenly as to’ the candidate and their opponents,” McGuire wrote. “The expenditures this bill seeks to include are not limited to where there is a connection to a candidate or campaign, nor does the bill focus on whether the expenditure is actually independent. Rather, it focuses on what is being advertised, the speech itself.”
Further, McGuire wrote that the “additional provision appears to encompass all political campaign ads run by independent organizations on major social media platforms, such as Facebook or Google. Although we are sympathetic to the intended purpose of the legislation, the language proposed does not relate to the issue of ‘independence’ covered in this statute. It applies to independent expenditures that cannot be constitutionally restricted. The language focuses on expenditures ‘made neutrally or evenly as to [all candidates],’ but constitutionally-protected independent expenditures almost always are made in support of only one candidate. In short, as written, the bill asserts that something that might be independent is presumed not independent merely because it uses a new platform.”
McGuire also suggested that SB 642 unfairly penalizes digital news and social media companies: “Including these expenditures would also favor traditional media over digital and social media because the restrictions in the language would apply only to expenditures by or on social media and not to similar expenditures and disseminations of information in newspapers, radio, or television.”