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Political Advertising: All's Fair in the 'Wild West' Aura of the Net

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Critics worry about unregulated mudslinging. Web publishers would welcome a post-convention gold rush of soft money ads. Others take a wait-and-see attitude to Web ad reform.

Web publishers would like to hope that soon after Sept. 2, their phones will start ringing off the hook with calls from groups that have lots of money set aside for advertising in the 60-day period before the Nov. 2 election and no better place to spend it than the Internet.

Those groups would be corporations, labor unions, pro-gun, anti-abortion, environmental and other issue advocacy groups. They would like to sway voters into seeing things their way but are no longer able to do so with unregulated "soft money"-funded commercials on radio and television in the 60 days prior to the election. That restriction is in place this year for the first time in a general election campaign thanks to the 2-year-old Bipartisan Campaign Reform Act, better known as the McCain-Feingold law, which doesn't cover print media or the Internet.

In fact, with just a few exceptions, none of the laws and regulations that govern political advertising applies to campaign pitches posted on the Web. For example, both the Federal Election Commission and Federal Communications Commission have promulgated tedious rules requiring television and radio stations to broadcast on-air and on-screen messages disclosing who paid for political commercials and directing them to retain public files containing more detailed information about the ad sponsors for two years. Those rules have recently been applied to direct broadcast satellite systems, but they haven't yet been extended to cyberspace.

A provision in the McCain-Feingold law that requires candidates to personally declare their approval of any commercial calling for their election likewise covers radio, television and satellite broadcasts but not the Internet. And organizations whose campaign war chests are stuffed with large lump sums of unregulated soft money raised from special-interest groups will be able to spend with abandon on ads distributed by e-mail or posted on Web sites even though they will have to hold their fire in the broadcast media after Sept. 2.

One of the few political advertising regulations that reach Web sites is an FEC rule covering public communications by authorized campaign committees. Campaign messages posted on political committee Web sites or unsolicited campaign e-mails sent to more than 500 addresses must contain a note that the message was paid for by the committee. Other than that, all's fair in political ads on the Internet.

The dearth of regulations has already made at least one difference. While the presidential candidates have publicly professed their intention to hew to the high road, some of the video spots they have posted on the Internet have had a harder edge. For example, in a video spot that briefly appeared on President Bush's official campaign Web site early this summer, Hitler appeared as one of a succession of bogeymen that also included former Vice President Al Gore. This followed an earlier appearance by Hitler in a 30-second commercial lambasting Bush that was posted by a contestant in an ad competition sponsored by MoveOn.org.

"The general conclusion about political advertising on the Internet so far is that there's much more freedom to run ads that are hotter and more controversial on the Net than you would ever, ever run on broadcast," observes Meredith McGehee, executive director of the Alliance for Better Campaigns. "It is a Wild West on the Internet. I think it has a lot to do with lack of regulation. They can have that up on their Web site, and not have George Bush saying, "I approve of this ad'," she said, referring to the Hitler ad.

The fact that political advertising on the Internet remains largely unregulated certainly doesn't bother Web publishers. Eventually the time will come when some rules may have to be imposed, but not necessarily anytime soon, says Michael Zimbalist, executive director of the Online Publishers Association. The trade group was hoping for a gusher of spending on political Web ads this year, but this hasn't necessarily materialized yet (see related OJR story 'This Isn't the Year': Politicos Cynical on Net's Role in Campaign Ads). All the more cause for concern that imposing arduous and confusing regulations now might kill the goose before it has had a chance to start laying any golden eggs.

"I come down in favor of letting it go (unregulated) a little while longer," explains Zimbalist. Discussion of rules for political advertising on the Internet should be kept on the back burner with proposals for a sales tax on Internet transactions, he says. Both will surely be imposed one day, but it would be a mistake to impose them now while the medium is still in its infancy.

"As the Internet becomes more mainstream, one would think that certain (aspects) of the basics, such as disclosures of who is behind an ad, would be appropriate," he says. "But as the medium is growing, we need to be careful not to burden it with too much." Advertising on the Internet "is a learning curve to begin with. It's not the easiest environment to work in, compared with broadcast or print. The trick is going to be striking a balance between the public's right to know and allowing the medium to flourish and not become more complicated than it already is."

While it's no surprise that a Web publishers trade group favors a laissez-faire approach to political advertising on the Internet, you might expect campaign reform activists to be raring to crack down.  But evidently, many aren't. McGehee, for one, agrees with Zimbalist that it would be better to hold off for now.

"Nobody knows the depth, the width, or the nature of what it is we would be trying to cure," she explains. "So I would be somewhat hesitant to regulate the Internet. After this campaign, and after everybody has had a chance to digest what happened, there may be more appetite in the next Congress," she added. "But it's premature at this moment to regulate (campaign advertising on) the Internet. We need to see what the problems are first. And I don't think we're there yet."

Michael Cornfield, a senior research consultant at the Pew Internet & American Life Project and author of the book "Politics Moves Online," also agrees. Noting the relatively minuscule flow of money into online political ads so far this year, he observes, "I don't see the primary question about Internet advertising as whether it needs regulation. It's whether people will embrace it and whether it will work. If nobody's doing it, why regulate it?"

Both McGehee and Cornfield noted that even if some visionary reformer tried to launch a pre-emptive crusade against political abuses of the Internet, the history of campaign finance reform strongly suggests that few would join in. "I've worked on campaign finance reform for 16 or 17 years and the same thing happened with soft money," McGehee recalls. "It was pretty clear when the FEC first created the loophole (allowing unfettered use of special-interest money) that there would be a problem. Common Cause, which I worked for at the time (as senior vice president and chief lobbyist), immediately went to the FEC to talk about it and took them to court. But we did not find the political will at that moment to create a real desire among Republicans or Democrats to go and regulate the behavior. The reason the McCain-Feingold act was upheld (by the U.S. Supreme Court last December) was because the proponents were able to go to the court and document a factual record of abuse."

McGehee adds, "Do I think that's going to come with Internet advertising? Yes, I do. Do I think I know at this moment exactly what that regulation should look like? No, I don't."

Sen. Ron Wyden, an Oregon Democrat who sponsored the "stand by your ad" amendment that was attached to the McCain-Feingold bill, has one idea about a regulation that in his view should be slapped on political Web ads sooner rather than later. In May, he and Sen. Lindsey Graham, a South Carolina Republican, introduced a bill that would extend the same provisions to ads disseminated in print, over the phone and on the Internet.

According to Wyden and at least some political analysts, the rule so far appears to be deterring the official campaigns from launching highly negative attack ads on television and radio because the candidates fear the backlash from personally endorsing hatchet jobs on their opponents.  So mudslingers are seeking new outlets, Wyden asserts. "The meanest political messages are already migrating to the Internet where Stand by Your Ad's accountability requirements don't apply," he said in his press release explaining the need for the new measure. "Stand by Your Ad is working on television and radio, and Congress should extend this success and keep the Internet, print and phone ads from becoming havens for mudslinging without accountability."

Wyden's proposal would require all video clips distributed over the Internet by campaign organizations, as well as "electioneering" messages distributed by independent groups that target candidates by name, to carry a personal statement by the candidate expressing approval of the ad. Under the proposal, either the candidate would speak on screen, or an image of the candidate and a written version of the statement would be displayed for at least 4 seconds. Audio clips distributed over the Internet would have to include a personal audio statement by the candidate expressing approval of the ad, as is now required for radio spots.

No one expects that bill to go anywhere in the current session of Congress, not even Wyden. A spokesman for the senator said the measure was referred to a committee in May, where it has sat ever since, awaiting action at some future date.

The big issues regarding political advertising on the Internet this year are threshold questions, such as how much of it there will be, who will be paying for it and whether it will have an effect.

"We have not yet seen a burst of online advertising to try to take advantage of the difference between the regulation of broadcast media on the one hand and the regulation of print and Internet on the other hand," says Cornfield. So the notion that the Internet will prove to be a loophole through which abuses will flow "is an untested hypothesis," he added.

The Online Publishers Association, which for the past year has been predicting a flood of spending on Internet ads that has yet to materialize, is hopeful that analysts will have plenty of data to pore over once this election is over. "Early indications are that political ad spending on the Internet is certainly going to be stronger than we've ever seen before," Zimbalist observes, with perhaps a touch of wishful thinking. If the Internet turns out to be a refuge for a flood of soft money ads in the last 60 days before the Nov. 2 election, he leaves the impression that Web publishers could live with that. "I think people are kind of waiting to see" if there is an influx of money after Sept. 2, he says. "It wouldn't surprise me if we did see some of that."

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Related Links
Alliance for Better Campaigns
Bush-Cheney '04 campaign site
Common Cause
FEC: Bipartisan Campaign Reform Act
Federal Communications Commission
Federal Election Commission
MoveOn.org
MoveOn.org ad competition
Online Publishers Association
Pew Internet & American Life Project
Stand by Your Ad II press release
U.S. Supreme Court: Bipartisan Campaign Reform Act Cases
Related Story on OJR
OJR: "Politicos Cynical on Net's Role in Campaign Ads"
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Sen. Ron Wyden, D-Ore.

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