Because they gave exemptions to both Facebook and Google. A new paper shows how they were able to avoid disclosing who paid for advertisements related to the election.
The research team analyzed digitized versions of primary-source documents on the Federal Election Commission's website to understand how Facebook, Google, and the commission perceived the need for online advertising disclaimers before the election. The authors searched through advisory opinions, which are official commission responses to questions about the application of federal campaign finance law to specific situations. The team identified three advisory opinions comprising 114 documents relevant to their study.
They uncovered persistent themes. Unsurprising was that social media giants want to maximize profit and an excuse for noncompliance was technological constraints. Documents from each of the advisory opinions found that in 2010, the commission had its first opportunity to address disclaimers in digital advertising when Google requested an advisory opinion. Despite requirements developed in the 1970s that called for the reporting to the commission of paid political advertising expenditures for print, television, and radio, along with disclaimers on political advertisements identifying who paid for them, the commission allows for two exemptions.
The first exception was a small-items exemption. Lapel pins and bumper stickers don't have room for a disclaimer. Skywriting, water-tower signage, and apparel are also unworkable.
And that is what Google attorney Marc E. Elias used to argue for a Google exemption of text-only search ads - their largest profit center. Elias argued that a link to the sponsor's website where the disclosure was available was a sufficient alternative.
The Federal Election Commission agreed that Google's practice of including a link to a website containing a full disclaimer satisfied the commission's requirements but Democrats said there was no technological justification - they had benefited a lot from unchecked use of social media in 2008 - while Republicans supported an impracticable exemption. This advisory opinion provided minimal guidance on how to comply with digital political advertising.
Facebook, through Elias, then sought a small-items exemption and an impracticable exemption for its digital political ads. Following the Google experience, Facebook did not include any alternative means for the disclaimers. This only widened the partisan rift within the commission, which became deadlocked. Commission members issued no advisory and ultimately the advertisements became unregulated.
Where does this leave the American public in 2019?
Following the 2016 election, with some complaining and many in the political parties figuring out how to use the loopholes to win, the public are a lot more engaged. When the commission announced notices of potential rulemaking on internet ad disclaimers in 2010, only 14 comments were logged. In 2017, however, the commission received 149,772 comments to its updated public notices.
Companies are attempting to get their affairs in order before government does it to them. Facebook now requires a disclaimer on all ads with political content, verifies the identity and physical address of the payer, and claims to release all ads to the public in an archive. Google has put similar practices in place.
Meanwhile, Google attorney Elias continues to lobby against requiring platforms to include disclaimers on digital political ads