How Hillary Clinton's Campaign Lawyer Helped Facebook Avoid Political Ad Disclosure

Earlier this month, the Washington Post reported that Facebook had discovered that a Russia-linked “troll farm” had purchased over $100,000 worth of ads on the site during the election. Apart from being grist for the ever-churning Trump/Russia collusion story mill, the incident serves as a reminder that America’s campaign finance laws are extremely fucked, allowing massive and untraceable spending through super PACs, fake corporations, and “dark money” non-profits.

While in this case a Republican benefitted from the lack of transparency around political spending, and Republicans in general are way less into campaign finance transparency than Democrats, the Democratic party has also benefited from and exploited this situation. Correct the Record, a pro-Clinton super PAC, openly coordinated with the Clinton campaign despite the law explicitly preventing that, because, it argued, it wasn’t spending money on election ads. (That rationale seemed to fall apart when it announced it would spend $1 million on fighting the trolls online.)

That strategy originated in a 2015 memo authored by Marc Elias, head of Perkins Coie’s political law practice and Democratic “superlawyer”—and General Counsel to Hillary Clinton’s 2016 campaign. But Elias’s work to exploit the weak enforcement of the Federal Election Commission was not limited to this impressively bold fuck-you to the spirit of the laws on super PACs. He also helped undermine rules that might have exposed the Russian ads before they, y’know, helped defeat his boss.

In 2011, Elias represented Facebook when it asked the FEC to exempt their ads from rules that require “public communications” in campaigns, like political TV ads or direct mail, to include a disclaimer saying who paid for that ad. The FEC exempts “small items” from disclaimers on who paid for them—that’s why political TV ads say who paid for them but bumper stickers don’t—on the basis that it’s impractical to have to put a long disclaimer in a small space. Facebook asked the FEC to extend that “small item” exemption to ads on their website, saying it was not feasible or possible to provide disclaimers about funding in their very tiny ads, which are limited to 160 characters.

Democrats on the commission argued that that exemption could apply to Facebook, but only if the ads led to a source that did include a disclaimer, like a rollover pop-up box or a website that contained a disclaimer. But Facebook disagreed. A link or a roll-over box, or literally any other conceivable means of displaying the sponsor of the ads, was clearly beyond the technological capabilities of the $500 billion company. Silicon Valley had apparently discovered its first un-disprutable problem.

The FEC never came to an agreement on whether Facebook ads should be exempt, meaning Facebook was free to do what it wants. That’s how it works at the FEC: In the absence of specific and enforced rules, anything goes. Had the FEC ruled against Facebook, and required advertisers to post disclosures about who paid for ads, it’s conceivable that reporters might have discovered the Russians links to these ads—ad that, again, targeted the candidate that Elias worked for—before the election, instead of months after it was too late for the revelation to help the Clinton campaign.

Let’s imagine an even wilder scenario, where the FEC actually does its job and enacts and enforces strong disclosure rules. Imagine if the FEC adopted rules like those heading to the governor’s desk in California, which would require ads to list the sponsor organization’s top donors instead of just the committee’s name, which is usually something opaque and misleading like “Americans for a More American America.” Imagine if the FEC passed a simple rule ending its internet “blind spot” and required online platforms like Facebook to disclose the same information about political ads that TV stations must. Imagine how much more we would know about who, foreign or domestic, was seeking to influence our elections!

Brendan Fischer, the FEC reform program director at the Campaign Legal Center, told Splinter that the disclosures Elias and Facebook fought against may have deterred Russia “from running Facebook ads in the first place if every online campaign ad required a disclaimer stating who paid for it. And even if foreign actors were to try hiding behind innocuously-named front groups, a disclaimer could have provided the press and public enough clues to uncover a foreign influence effort.”

Fischer also argues that the FEC should require the same disclosures for online political ads as for all other ads, and says Facebook “can find ways to make it easy for advertisers to include such a disclaimer and for users to access it.”

It is, of course, extremely funny that Clinton’s top lawyer, thanked in the acknowledgements for her new book, helped Facebook skirt rules that might have revealed the extent to which Russia was working to influence the election she lost. But these transparency rules are important whether we’re talking about Russia operatives or all-American influence-peddlers. The Kochs, or Pfizer, or Facebook itself, could drop far more than the comparatively paltry $100,000 that Russia spent on ads tomorrow to influence the political system, and thanks to the FEC’s complete inaction, it could conceivably happen in total secrecy.

Many Democrats claim that sure, they hate money in politics just as much as the next Bernie, but that they need big donors to compete with Republicans, who have no such qualms. Cases like this, where you have arguably the party’s top lawyer fighting to undermine campaign finance rules that might have revealed an unprecedented foreign effort to make sure his boss lost to Donald Trump, show the weakness of that line of thinking. You cannot work to weaken the rules that restrict the bad guys just because you are one of the good guys and they’re annoying for you too. It only ever ends up helping the bad guys.

Splinter asked Elias if he regrets representing Facebook in this case given the revelations about Russian political ads on Facebook, but has not received a response.