To promote his recent campaign for mayor of St. Petersburg, Fla., Scott
Wagman bought an ad that popped up online when anyone ran a Google search for
his opponents' names.
He was hardly the first to employ the tactic, which didn't stop a rival
campaign from complaining the ad did not have a "paid for by" disclaimer. The
Florida Elections Commission ordered Wagman to remove it and pay a $250 fine,
even though the required disclaimer was longer than the 68 characters allowed in
the text of the ad, which wasn't "paid for" until someone clicked on it.
Wagman is fighting the complaint, and his case adds to an ongoing debate
about how "old media" rules governing campaign spending should apply to the "new
media" of the Internet age. When does a blog connected to a campaign need to
disclose its allegiance? Does a candidate's personal Facebook page need a
disclaimer if it is updated by a staffer? Can a campaign-related tweet — a
message posted on social media site Twitter — even be regulated?
"Policing this is going to be a tremendously difficult thing, let alone
writing the rules," said Edwin Bender, executive director of the National
Institute on Money in State Politics, a nonprofit group in Helena, Mont.
Citing the Wagman case, Wisconsin's Government Accountability Board this
month ordered staff to draft guidelines outlining the circumstances under which
the public needs to know who is paying for an online ad or Web site. Wisconsin
appears to be one of the first states where regulators are drafting such
guidelines, several political experts say, and they expect others to follow.
Many states currently require political ads to include disclaimers saying who
paid for them, although some exempt small items such as bumper stickers, buttons
and T-shirts where a disclaimer is impractical. Paul Ryan, a lawyer with the
Campaign Legal Center in Washington, said text messages and small pay-per-click
online ads might become "the campaign buttons of the Millennium Era."
So far, the Federal Elections Commission has taken a mostly hands-off
approach, as campaigns still spend far more money reaching voters through
television, radio and direct mail. The commission ruled in 2006 that campaign
regulations do not apply to most Internet activity, except for paid political
advertising on someone else's Web site. Bloggers are exempt as long as they
write voluntarily and are not paid by a campaign.
In California, the state's Fair Political Practices Commission has formed a
task force to study the issue and make recommendations. Gubernatorial candidates
there are facing questions about whether they must report Twitter Inc.'s
recommendation of their Twitter feeds as in-kind campaign donations, a scenario
not covered by the state's current rules.
"These are some of the types of issues we're going to be looking at," said
the commission's executive director, Roman Porter.
The retired judges on the Wisconsin board seemed divided during a recent
meeting when discussing regulating Internet communication while also protecting
free speech. At times, they puzzled over what they are and how they work.
"I've been in government for 45 years and this is the first meeting I've ever
been to where we've discussed tweets and widgets," said board member William
Eich. Widgets are applications that can be embedded on Web sites and PC
desktops, displaying news from a campaign or a blog.
Board lawyer Shane Falk said he believed the pay-per-click ads on Facebook
and Google need not have disclaimers as long as the sites they link to do. Based
on its discussion, the board may require other sites, including Facebook pages
for campaigns and candidates, to have them.
Wagman's ads on Google and Facebook touted his background as a businessman
and endorsements from local leaders, said Brian Bailey, president of Rearden
Killion Communications and a campaign consultant. He said he was optimistic that
the Florida commission would reverse itself in its final decision on whether to
fine Wagman, who lost in last month's crowded primary for St. Petersburg
Bailey said other states should approve similar guidelines before the 2010
election cycle, saying they will otherwise be inundated with complaints about
online campaign activity.
"States are really going to have to deal with this," he said. "It would be
easy for candidates in partisan races to attack the opponents for breaking rules
and throw a wrench into the campaigns. I think voters would get really turned
off by it."