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We don’t know the extent of Russian meddling in the 2016 election. But a Klobuchar bill seeks to prevent a repeat in 2018

Almost a year after the 2016 election, the specter of Russian influence in U.S. politics still looms large in Washington. A lot of that has to do with the ongoing investigation, now under the care of a special counsel at the FBI, into ties between the Russian government and the presidential campaign of Donald Trump.

Time will tell what, if anything, comes of that probe. But with crucial midterm elections just a year away, some D.C. lawmakers want to do something right now to counter an election-meddling strategy that Russia used in 2016, and that they fear could be used again if no action is taken: the anonymous purchasing of online political ads by foreign entities.

In the past few months, tech companies like Facebook and Google have released details about how individuals linked to the Russian government took advantage of their platforms to advance a disruptive political agenda in the run-up to the 2016 election.

Facebook revealed in September that Russian entities purchased $100,000 worth of ads on the platform, which the company said amplified “divisive social and political messages” on charged topics like race relations and gun rights. Google reached a similar conclusion earlier this month in a review of its products, like YouTube.

Unlike a typical political ad on television or the radio, which requires a disclaimer saying who paid for it, the Russian-bought online ads carried no such information, leaving consumers in the dark as to who was behind it.

A group of lawmakers, including Sen. Amy Klobuchar, want to change that. Last week, they introduced a bill that would establish new rules aiming to make online political ads more transparent, and to make it harder for foreign agents to buy those ads.

Their bill, dubbed the Honest Ads Act, could prove a good start in establishing regulation in a mostly unregulated area, but experts are skeptical it would accomplish one of its major goals: making it significantly harder for a determined, clever rival to manipulate the internet to influence U.S. politics.

An honest effort

The Honest Ads Act is a product of work between Klobuchar and Virginia Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee and an important figure in the ongoing Russia-related investigations.

At a press conference last week, the two Democrats made the case for their legislation. They argued it would help curtail future foreign interference in U.S. elections, and they framed that as a national security concern — not a political one.

Beyond that, the lawmakers argued it was past time for online ads to face the same kind of regulatory scrutiny as do ads on TV, radio, and in print, in the name of transparency and consistency.

The Honest Ads Act would amend the Federal Election Campaign Act, passed in 1971, to expand regulation of “electioneering communication” — a broad category of election-related political communication — to online ads, putting it in the same regulatory category of TV, radio, and print.

The vast majority of electioneering communication include a disclaimer that they are paid for by a certain candidate or group, as required by law. The Honest Ads Act doesn’t require all online ads to have that kind of disclosure; it just extends existing disclosure requirements to the online space.

That means platforms like Facebook and Google could fight for exemptions: for example, they could plausibly claim some ads are too small to warrant a disclaimer, so that not every ad you see online would carry information saying who paid for it. 

But the legislation puts a system in place so that, under certain conditions, the public can find out who bankrolled an online ad campaign, along with some other key pieces of information.

The bill requires platforms with at least 50 million monthly “viewers” to maintain a file of all political ads purchased by an entity that spends more than $500 on ads on that platform per election cycle. That 50 million monthly viewers threshold includes the web’s giants — Facebook, Google, Twitter — along with widely-used resources like Yelp and WebMD, and traditional media outlets like the Washington Post and the New York Times.

Under the law, the platforms would have to make public a copy of the ad, along with information about who the ad targets, how many views it got, when it was published, how much it cost, and a way to contact the purchaser of the ad.

That last part is important: a significant element of the Honest Ads Act is that it requires platforms to “make all reasonable efforts” to make sure foreign entities are not purchasing political ads, and could subject the platforms to hefty fines if they don’t comply.

Under current law, foreign individuals and foreign governments cannot spend money to influence any election in the U.S., and they are barred from purchasing political ads and contributing to candidates’ campaigns. The Russian operatives got around that by creating fake Facebook accounts and posing as American entities.

‘Do we want to get suckered again?��

In justifying the urgency of their legislation — at the top of her press conference, Klobuchar reminded reporters how many days there were until the 2018 election — the senators have leaned heavily on evidence that Russian-linked entities manipulated platforms’ lax ad rules to manipulate American voters.

During the 2016 election, a total of $1.4 billion in political advertising was spent on digital platforms, according to media tracker Borrell Associates. Facebook says that the $100,000 spent by entities linked to the Internet Research Agency, the secretive Russian online interference squad, was good for 3,300 ads, which ran on the platform from 2015 to 2016. Further reporting revealed the Russians were able to micro-target those ads to who and where they would be most effective: voters in swing states like Michigan and Wisconsin, both of which were narrowly won by Trump.

Google found that Russian operatives purchased “tens of thousands” of ads on Gmail, YouTube, and Google Search in an effort to meddle in the U.S. elections. Reuters reported that the company does not believe it was targeted by the same agency that bought ads on Facebook.

It’s unclear how big an impact these ads had in influencing the outcome of the election. Facebook estimated that Russian-purchased ads reached 10 million eyeballs in the lead-up to the 2016 election, which seems significant, considering Trump won battlegrounds like Michigan by a quarter-percent margin.

New York Magazine, in a report on the ads, quotes a former Facebook engineer who argues it is “ridiculous” to claim that the Russian ads had any impact on the outcome of the election.

The ads in question have not been released to the public, and the exact content and message of the vast majority of them remain known only to the companies and a handful of officials. CNN reported one example, however — an ad run by a Russian-linked account posing as a Black Lives Matter group that targeted people in Baltimore and Ferguson, Missouri.

The Honest Ads Act’s backers maintain that action is needed now, and that if nothing is done, Russia — and perhaps other rivals with internet savvy, like North Korea — could continue to exploit online platforms ahead of the 2018 midterms.

Klobuchar told MinnPost that the 3,000-plus Russian Facebook ads constitute only what is publicly known. We’re not likely to ever know the full extent of the impact of the 2016 ads, Klobuchar said.

“What we have to ask ourselves,” she says “is, do we want to be suckered again?”

Starting somewhere

In general, Klobuchar and Warner’s effort is being received by experts as a good first attempt at regulating a totally unregulated area — a veritable Wild West of election and campaign finance law.

“You have to start somewhere,” says Larry Norden, deputy director of the Democracy Program at the Brennan Center for Justice at New York University, which has endorsed the Honest Ads Act.

“It is a gaping unregulated area,” Norden explains. “The current regulatory framework dates back to the 2002 McCain-Feingold law, and that, unsurprisingly, didn’t deal much with the internet. Its focus was on communications and media like TV and radio, and really left the internet out, particularly as it applied to what we call electioneering communications.”

Norden says that if Honest Ads passes, it should be much more difficult to be so blatant about posing as an American to purchase online ads in the future.

Still, he says, “there are lots of ways that, even if this passed, if you’re a foreign government and you want to spend on an American political election, you still could… We still have a lot to fix in the campaign finance system.”

According to Nicol Turner-Lee, a tech policy expert at the Brookings Institute think tank, “at the end of the day, they’ll figure out a way to get around the system… I don’t think it will stop them from doing what they want to do.”

Turner-Lee still said the intent of the Klobuchar-Warner bill is good, and that it is a worthwhile legislative effort. “At some point, we have to figure out how this vulnerability in the media ecosystem allowed for such activity to transpire in a way that was diffused to the American people without them knowing who was the messenger,” she says.

“That is the craziest thing — we all looked at this content and did not question where it came from. We consumed it, liked it, shared it, ignored it, but it was disseminated.”

There are ways, however, that a determined group of foreigners could circumvent the regulations established by the legislation.

Leonid Bershidsky, a Russian journalist writing in Bloomberg View, says that Russian operatives could evade getting caught by being more disciplined about using U.S. phone numbers and IP addresses, which make it harder for the platforms to detect that a foreigner, not American, is behind an ad buy.

“Under the Honest Ads Act, a troll cleverly disguised as Jane Doe or John Smith, and ostensibly based in Random Location on Google Maps, U.S.A., will still be able to buy and run any kind of political ad — all from the outskirts of St. Petersburg,” he writes. “The transaction will be clearly recorded under the fake name and stored in a vast archive in which no one but a dedicated investigator will be able to find anything of value.”

Klobuchar said that the bill’s proponents aren’t pretending it will solve the whole problem, but that having a public record and basic disclosure requirements is an important start.

“There’s no record,” she says. “If there’s a record, there’s a bigger chance people are going to be able to trace who did it. How can they trace it if they don’t know what the ad is? What the disclosure will do is police everyone that puts out political ads, and give a fighting chance for journalists and campaigns to see what’s going on.”

Almost impossible to stop

Regardless of the merits and flaws of the Honest Ads Act, it only targets online ads — which, the public now knows, constituted just one element of Russian efforts to influence the U.S. elections.

There was, for example, the so-called troll army: Russian operatives from the Internet Research Agency posed as Americans on Facebook groups and discussion threads, seeking to advance a specific set of political messages designed to sow discord and undermine trust in U.S. politics. As Russian media has reported recently, in their efforts to make Hillary Clinton look as unpalatable as possible, professional trolls schooled themselves on U.S. politics, an education that included watching the Netflix TV series “House of Cards.”

Russian operatives also set up social media accounts, which appeared legitimate, in order to distribute fake news from a misleading source.

A prominent example is the @TEN_GOP Twitter account, which appeared to be an account run by the Tennessee Republican Party but was actually run by Russians. The account spread inflammatory articles, memes, and conspiracy theories to over 130,000 followers — including top Trump staffers — before being found out, and shut down, in August.

Most experts agree that legislative method of countering these kinds of efforts would be almost impossible to engineer. According to Rick Hasen, an election law expert at the University of California at Irvine, the Honest Ads Act is a good first start, “but it would not come close to dealing with some of the more important ways that Russia or other foreign governments and entities could try (again) to influence our elections.”

Proponents say that the legislation, though imperfect, lays the groundwork for dealing with some of these other issues in future elections. “Disclosure,” Klobuchar said, “at least gets you the ability to identify the next big thing.”

The Honest Ads Act is far from certain to pass in a Congress where anything Russia-related remains a lightning rod for controversy. Arizona Republican Sen. John McCain has joined as a co-sponsor, but willingness among the broader group of Senate and House Republicans to back the legislation is unclear.

The tech companies — for whom this legislation could mean a new regulatory burden — have not exactly jumped on the bill’s bandwagon. The industry has already retained high-powered D.C. lawyers to shape the legislation so that disclosure requirements are as lax as possible.

In a possible attempt to preempt any government regulatory efforts, Twitter announced on Wednesday that it would begin labeling political ads and establish a database — a “transparency center” — where much of the information required by Honest Ads, like who paid for the ad and who the ad targets, would be available to the public.

Klobuchar maintained that her legislation remains necessary to establish an even standard across all platforms, and to place oversight of political ad transparency in the hands of a third party, not the tech companies.

“This is really all about money in politics,” she says. “You want to know where it’s coming from… You want to know that people are trying to use the sophisticated cyber world to manipulate you, and you can decide whether you want to be manipulated, or whether you agree or not.”

Comments (5)

  1. Submitted by Ilya Gutman on 10/29/2017 - 09:10 pm.

    First, let’s make it clear: Russian ads couldn’t affect elections if we consider that its spending was 0.01% of the total spending. Second, again, let’s stop pretending that people care who paid for the commercial – they just watch it and never pay attention to small print at the bottom of the screen. Third, let’s think of the constitutional rights: if everyone has rights granted by the Constitution, I would guess that the First Amendment would be the first one they would have; so Putin may just send his deputy to visit America and place an ad – no fake addresses required.

    So really, we have just two choices to limit the influence foreign governments may have. First, teach people to ignore all political commercials and go for the actual sources. And second, have GOP and DFL agree that they would not be placing any commercials on TV or internet except one saying that they disapprove all messages other than the ones on their official websites. Can it work?

  2. Submitted by ian wade on 10/30/2017 - 05:17 pm.

    Yes…let’s be clear.

    127 million people saw the Facebook ads alone. Trump is occupying the White House because of 78,000 votes across three states. Let’s also dismiss your assertion that people don’t care who pays for ads when, time and time again, ad content is dismissed by people strictly based on the PAC presenting them.

    • Submitted by Ilya Gutman on 10/31/2017 - 10:24 pm.

      “127 million people saw the Facebook ads alone.” Yes, and they also saw hundreds if not thousands (based on the amount spent on these ads) of other ads showing the same stuff so the effect of those “Russian” ads was negligible.

      “assertion that people don’t care who pays for ads” When you see a political commercial on TV, do you try to read the small print at the bottom or you generally know which side paid for this ad anyway?

      “Trump is occupying the White House because of 78,000 votes across three states.” No, Trump is occupying the White House because 60 million people voted for him. And they voted for him because Obama was occupying the White House for 8 years and because Clinton wanted to occupy it for 4 more years…

  3. Submitted by Jon Kingstad on 10/30/2017 - 09:06 pm.

    A good beginning

    Most likely voter suppression in states like Wisconsin with “voter ID laws” had more of an impact but that’s not the point. The point is that right now, there’s really nothing preventing any foreign group from buying candidates and elections. Or preventing foreign groups or their agents from having a major influence on candidates and elections.

    I appreciate Mr. Gutman’s ideas and proposal. But we tried getting GOP and Democratic Parties to agree on campaign finance reform. It was called “McCain-Feingold” and the “brilliant” Supreme Court gutted that law because scoundrels like Mitch McConnell have convinced them that “money is speech” which corporations-especially corporations- have a lot of. Hopefully, before Trump and his ilk have totally destroyed what’s left f democracy and liberty in this country, the Supreme Court will come to its senses and recognize that regulation of elections no different than any other regulation that imposes constraints on time, place and manner of speech, if money is speech at all. Not to forget, the Chinese have gobs of US dollars.

    Meanwhile, the Honest Ads Act is a good beginning. Maybe some briefless lawyer will attack it for violating his or her free speech and some percipient court will recognize that protection of the electoral system from hijacking by foreigners is itself a compelling interest that might justify other restrictions on “money as speech.”

    • Submitted by Ilya Gutman on 10/31/2017 - 10:23 pm.

      “The point is that right now, there’s really nothing preventing any foreign group from buying candidates and elections. Or preventing foreign groups or their agents from having a major influence on candidates and elections.” The problem is that the First Amendment doesn’t distinguish between Americans and visitors, the way I understand it. So Putin may send his guys to come to the White House and shout that Trump is a fascist and the First Amendment will protect them. But, since there are enough Americans already doing it, Putin would most likely ask his guys to organize some protests or place ads on websites or create websites with “fake news.” I don’t think there is a legal way to prevent them from doing it. And really, does it matter that much who paid for the ad: Putin, Soros, or the Koch brothers?

      The Supreme Court decision to prevent limitations on money in politics was one of its worst. But I was talking about voluntarily agreement between the GOP and DFL not to place any ads and commercials anywhere and discourage everyone else from doing it. Obviously, they can agree on that even if placing the ads is legal. To limit the influence money has, they should also agree not to use any signs or door knocking unless done by volunteers. Informative websites (with cross fact checking) and several debates should be all that would be needed to give people enough information to vote.

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