Regulating the Political Wild West: State Efforts to Disclose Sources of Online Political Advertising

Abstract

The problem of disinformation in online political advertising is growing, with ongoing and potential threats to campaigns coming from both within and outside the United States. Most scholarship in this area has focused on either disclosures and disclaimers under the proposed Honest Ads Act or other fixes aimed at a gridlocked Federal Election Commission (FEC). With federal reform at a standstill, states have jumped into the void. Since 2016, eight states have passed legislation to expressly regulate online political advertising for state candidates and ballot measures, including Maryland, whose state law was declared unconstitutional as applied to a group of media plaintiffs by a federal appeals court. This article examines these state laws as well as the one federal appeals court opinion as a springboard for thinking about efforts at the national level to address the problem. We raise important considerations for future legislation in light of the appeals court decision. We propose that independent record-keeping bodies, similar to what the state of New York has established for independent expenditure committees, are more likely to pass First Amendment scrutiny than requiring record-keeping of platforms or websites.

Keywords: Online Political Advertising, Election Law, First Amendment, Honest Ads Act, Misinformation, Disinformation