Unfriending the FEC

Only 18 people like the FEC on Facebook.  It is, perhaps, the federal government agency with the fewest Facebook friends.  And a new draft Advisory Opinion from the Federal Election Commission won’t win it anymore.

In Draft AO 2011-09, the FEC would deny Facebook’s request for recognition that small, character-limited advertisements purchased by federal candidates are excepted from the authorization disclaimer requirement because either the ads are too small to include the disclaimer or because including the disclaimer would be impractical.  The FEC still would permit Facebook to display the ads, however, provided that the ads link to a site that contains the proper disclaimer, and that each ad and the site it links to were paid for and authorized by the same person.

Perhaps Facebook’s team will take this half loaf of an opinion because the end result is the same:  an “Authorized by John Citizen for Congress” disclaimer will not eat up precious letters in a 100- or 160-character ad, but instead will appear on the candidate’s webpage where space is virtually unlimited.

In a world of technological possibility, however, the reasoning behind the draft AO is troublesome and problematic, if not for Facebook, then for others.  Consider the humble No. 2 Pencil, long a favorite of candidates campaigning at county fairs and high school football games across the country.  Former Virginia Fifth District Congressman Virgil Goode handed these pencils out to young and old alike long after the rest of the world had upgraded to mechanical pencils, erasable pens and, eventually, computer keyboards.  A vintage Goode for Congress pencil is practically a collector’s item now in Southside Virginia.

A pencil large enough to bear a “Goode for Congress” message would have to be large enough to include an “Authorized by Goode for Congress” disclaimer, would it not?  Technology certainly would not prohibit it.  If you can print on one side or facet of a pencil, you certainly can do it on another side or facet, right?*

Well perhaps the pencil is too small, or Goode’s message too large, to fit the disclaimer.  Couldn’t Goode’s message be printed smaller, to make room for the important authorization disclaimer?  Alternatively, couldn’t the pencil manufacturer simply make the pencil larger?  Is it not just a business decision by the manufacturer to limit its pencil to a certain size that research and experience have proven consumers are most likely to purchase and use?  Aren’t manufacturers of novelty items still making jumbo pencils?

These questions are important because these two facts — (1) the fact that technology would permit inclusion of the disclaimer, but for (2) the fact that Facebook had made a business decision to limit the size of its ads — appear to have sunk Facebook’s request for an exception.  Indeed, according to the draft AO:

“The limitation on the size or the number of characters that Facebook allows to be included in a Facebook ad is not mandated by the physical limitations of the display medium or Internet technology.  Neither is the limitation on the size of the ad set by a third party who established the technological medium and its use.  Rather, Facebook indicates that it has set the small sizes for its ads because of Facebook’s business decision that ‘larger ads would disrupt the social networking experience for Facebook users.’  Facebook’s business decision in favor of small ads does not justify elimination of the statutory disclaimer requirement given that it remains physically and technologically possible for Facebook to increase both the size of its ads and the number of characters that may be included in its ads.”

Is the FEC preparing to take away the long-standing regulatory exceptions to the disclaimer requirement in 11 CFR 110.11 for “bumper stickers, pins, buttons, pens, and similar small items” and “skywriting, water towers [and] wearing apparel”?**  Of course not, although I bet there are some whose hearts flutter at the very thought of it.  Should former Rep. Goode go into hiding until the statute of limitations runs on his disclaimerless pencils?  No.  But at the same time, Draft AO 2011-09 (and 2010-19 (Google) before it) easily could have opined that, like a lapel pin or a small campaign button, a Facebook ad is simply too small to include a disclaimer, or that inclusion would be impractical in light of the 100- to 160-character limit.  (In fact, one draft (Draft B) of the Google AO reached just that conclusion, but failed to obtain four votes.)  Instead, what Draft AO 2011-09 shows is that even as Congress refuses to expand it and courts are slashing away at it, there are those at the FEC who still take the most expansive view of the agency’s regulatory jurisdiction and aren’t prepared to cede an inch — or in this case even a character — of it.

* Have a hard time getting upset about a disclaimerless “Goode for Congress” pencil?  What about a pencil printed with the following — disclaimerless — message:  “John Smith lied. Write in Jane Doe on Nov. 5.”

** The “wearing apparel” exception has always struck me as especially curious.  It seems that all but the tiniest item of apparel would have ample room for a small disclaimer, and that a disclaimer on a piece of clothing bearing a political message would serve the same interest as a disclaimer on any other item, and in fact would be especially important if the clothing item bore a negative message.  Nevertheless, as it stands, an extra-large t-shirt with a negative message is excepted from the disclaimer requirement, but a tiny Facebook ad with a positive message is not.