Longtime pending reform moves ahead, enforcement still far from clear

by Brian Leubitz

The FPPC has been looking at regulating “bloggers” and social media for a while now. For a good review of some of their early discussions, see Julia Rosen’s post from their 2010 hearing on the subject. But yesterday they passed the new regulations:

Bloggers and others who are paid to post political messages online are subject to new disclosure rules under regulations the Fair Political Practices Commission approved Thursday.

Campaign committees will now have to report who they pay to post “favorable or unfavorable” content on blogs, social media or online videos on their campaign finance statements, and report the name of the website where the content appears.

“The purpose overall is to let the public know that they can go compare what the campaign is paying for to what is showing up online,” said FPPC attorney Heather Rowan.(SacBee)

I don’t doubt that the FPPC’s heart is in the right place, but as Steven Maviglio points out, the system is unworkable from any number of levels. And as former Schwarzenegger aide Rob Stutzman is quoted in the Bee, the system creates regulatory road blocks without actually helping voters discern what is paid for communication.

Now, I should also point out that I am occasionally paid by campaigns, but I’ve been using disclosures on each and every post associated with those campaigns. Not to be too self-congratulatory here, but I think it is just the right thing to do. However, these regulations don’t require that, but rather require reporting to the FPPC. That could be useful if somebody follows up on those FPPC forms in some database, but there are certainly no guarantees of clarity.

Furthermore, the devil is in the details. The current regulation leaves a lot of room for interpretation. How will campaign employees twitter accounts be regulated? How will they manage enforcement of occasionally pseudonymous or anonymous internet postings? And are these regulations constitutional under the Supreme Court’s (rather extreme) First Amendment jurisprudence?

Those questions will likely be answered during the next campaign cycle or two. The risk is that by the time those questions are answered, a whole new set will have taken their place.