Facebook Gets No Decision from FEC on Ad Disclaimers

Facebook hoped today was the day it would get a decision from the Federal Election Commission regarding disclaimers in political ads on the site. Alas, the six commissioners could not muster the four-vote majority required to hand down an advisory opinion on the matter.

At stake is whether political candidates or groups running Facebook ads must include disclaimers regarding who paid for the ads within the ads themselves.

"Zero percent" of ads on Facebook currently include such disclaimers, said a Facebook representative during today's public FEC meeting, suggesting that the commission simply approve what is already occurring in political Facebook ads. "If you were to adopt [an advisory opinion requiring disclaimers], you will cause an enormous amount of disruption in the campaign world, probably greater disruption than this agency has done" in several years, he said.

Facebook in April sent the FEC a request for an advisory opinion, following a similar request made by Google late last year. Facebook argued that candidates and other political advertisers should not have to include a disclaimer in their display ads on the social site.

"There is simply no basis to treat character-limited Internet communications any differently than other character-limited communications," argued Facebook's counsels in a letter dated April 26. The firm based its argument on a Federal Election Campaign Act rule exempting small political ad formats like bumper stickers and pins from the disclaimer requirement.

Although 2012 candidates including Barack Obama, Mitt Romney and Michele Bachmann are already running Facebook ads, and many more advocacy groups and candidates are expected to join in as the cycle continues, it is doubtful that a lack of clear guidance from the commission will steer any of them away from advertising on Facebook.

"We're pleased that the FEC commissioners have agreed that people can continue to buy and run political ads on Facebook as they have been. We look forward to continued conversations with the FEC about these important issues," said a Facebook spokesperson.

In the absence of clear guidance from the federal government, states including California, Maryland, and Florida have passed laws exempting Google text units and Facebook display ads from including paid-for-by disclaimers.

In October 2010 the FEC passed a motion on disclaimers in Google ads. The motion stipulated that, although the FEC could not reach the required number of votes to officially answer Google's questions, the search company would not violate regulations if political ads included the sponsor's site URL and linked to a page including full disclosure.

In a lengthy discussion today about the issue as it applies to Facebook, commissioners considered situations in which including a disclaimer on a landing page alone could be problematic. For instance, were a campaign to link an ad to a newspaper site editorial, it would not be able to include a landing page disclaimer.

Commissioner Steven Walther was especially hesitant to quickly hand down an opinion on the matter, stating that the problem should be solved "in a way that democratic ideals are preserved."