Can new law stop foreign-bought election ads?

In the wake of reports of Russian nationals purchasing campaign ads on popular social media sites, Congress is considering legislation that would require digital platforms to disclose information about political advertisements.

However, at an Oct. 24 hearing of the IT Subcommittee of the House Oversight and Government Reform Committee, members raised questions about the likelihood of passing legislation to govern ads on digital sites and if it would even prevent similar interference in the future.

Ian Vandewalker, senior counsel for the Democracy Program at the Brennan Center for Justice at the New York University School of Law, expressed concern about the U.S.'s ability to limit foreign nationals purchasing online advertisements.

"There are gaping holes in our regulation of paid political ads," he testified. "We should close the doors we know we should close."

The law currently governing the disclosure and disclaimers of election advertisements, the 2002 Bipartisan Campaign Reform Act, requires mass media companies to disclose information on ads costing more than $10,000. Digital platforms are not similarly covered by the law, Vandewalker pointed out.

Subcommittee chairman Will Hurd (R-Texas) pointed out "where there are obvious holes" is in the Foreign Agents Registration Act, which requires actors representing foreign governments to disclose those ties and related activities or finances.

"If we're looking to make sure our democratic institutions are resilient from influence from foreign actors, [FARA] is one area that we should look," he said.

The Honest Ads Act, sponsored by Sens. Mark Warner (D-Va.), Amy Klobuchar (D-Minn.) and John McCain (R-Ariz.), aims to close up at least one of those holes, by requiring sites with 50 million or more unique U.S. visitors per month to disclose information about any ads purchased on their sites in excess of $500.

Interactive Advertising Bureau President and CEO Randall Rothenberg argued that "durable reform can only happen when the digital advertising community adopts tougher, tighter, comprehensive control for who is putting what on its sites."

But Vandewalker expressed skepticism that online platforms would adopt such self-regulatory measures.

Rothenburg said that legislating disclosure requirements for the digital sites to publish that information, rather than the purchasers of the ads, would be overly burdensome.

However, Hurd said, "I don't understand ... where that burden is."

Twitter seemed to agree. The social media company announced in a blog post that it was standing up a Transparency Center to publicly provide more information about ads that run on its sites.

After the hearing, Hurd withheld support for the Honest Ads Act, which has a companion bill in the House, introduced by Reps. Derek Kilmer (D-Wash.) and Mike Coffman (R-Colo.), instead suggesting a "joint effort" from the government and the private sector.

"I don't know that the Honest Ads Act is the solution to this problem," he said. "Legislation is introduced all the time, and legislation that goes nowhere. But I think my colleagues on both sides of the aisle want to make sure we do everything we can to defend our liberal -- little 'l' -- institutions against foreign actors."