FEC Hands Down Wobbly Opinion on Google Political Ads

The Federal Election Commission last week told Google it won’t require disclosure in Google AdWords copy from political advertisers. The FEC’s advisory opinion handed down October 7 essentially allows Google to run ads for political advertisers without making a disclaimer about who paid for it directly in the ad. A URL of the paying group’s website in the ad, and a full disclaimer on the ad landing page will suffice.

However, the opinion did not put an end to the matter of disclosure in text ads. On the contrary, the lengthy and detailed discussion at last week’s meeting suggests the FEC’s consideration of the issue has only just begun.

Google originally submitted a series of questions to the agency in August, asking it to confirm that AdWords ads are exempt from disclaimer requirements under the “small items” exemption. It also inquired whether, if disclaimers are required, “displaying the URL of the ad sponsor’s website in the text ad and requiring the sponsor’s website to include a full disclaimer satisfies the requirement.”

FEC commissioners did not achieve the necessary number of votes to officially answer Google’s inquiry. Instead they passed a confusing motion stipulating that, while 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. More than one commissioner voiced displeasure with the process.

“I’m not going to vote for it because I don’t think it’s the proper way to handle the request,” said Commissioner Caroline Hunter.

“It’s not as clean as any of us would like,” said another commissioner.

Facebook supported Google’s request that political ads be exempt from disclaimer requirements, as did Aristotle International, a large provider of voter data.

Several concerns were raised during the talk, including whether an earlier FEC opinion regarding text messages would apply, whether a URL in ad copy can constitute the same thing as a hyperlink, and whether exempting additional ad forms from campaign financing disclaimers would erode the spirit of those regulations.

“You can’t control your customers, whether they have a disclaimer [on their landing pages],” said Commissioner Donald McGahn II to Google. “You’re assuming that [the disclaimer is on the landing page]. We have to be really careful in creating this sort of almost-disclaimer rule.”

Google and others argue that the FEC set precedent in its Target Wireless opinion, which stated that a 160-character SMS message qualified for the “small items” exemption. Because Google ads allow for just 92 characters, the company contends that its ads should also be exempt from disclaimer requirements.

But some commissioners suggested Google could alter its ad sizes for political advertisers. “Rather than say it’s 92 words, this is the business model, no disclaimer is required – that sounds pretty stark to me,” said Commissioner Steven Walther.

Google held its ground. One of its legal representatives launched into an impassioned argument aimed at the commissioners: “The status quo is not where you all are going. You all are about to walk the technology of campaigns backwards,” he said, adding that if they require disclaimers in small text ads, they “will walk this agency back with respect to the small bloggers, the people who rely on these small, little text only ads.”

A Google counsel also said that making changes for one type of advertiser would lead to confusion. “There would be differences that we’d have to explain to all our other advertisers…and we’d be doing it just to conform to a regulatory requirement. And it would be difficult because we price things at certain levels and there’d be a lot of different business model decisions we’d have to make as a result of making this one change.”

Still, Google already has created specific formats for pharmaceutical advertisers in the hopes of satisfying Food and Drug Administration ad regulations.

Maryland and Florida have made their own rulings about disclosure in Google and Facebook ads, as well as other forms of digital communication by political candidates. Both states exempt Google and Facebook ads from disclosure requirements.

Google would not comment today on the FEC’s response to its inquiry.

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