It makes sense that Americans – and not foreign actors – should decide the outcome of U.S. elections. What does not make sense is stripping Americans of their First Amendment rights, including free speech, in order to protect our elections from foreign interference. Yet this is precisely what Congressional Democrats aim to do with their Honest Ads Act.

Under the guise of protecting future elections from foreign interference, Democrats first introduced the Honest Ads Act as a standalone bill in 2017; they have since continued to introduce the bill – both as a provision within the mammoth “For the People Act” of 2019 and 2021 as well as separate bills in each of the last three Congresses. Expanding on the Federal Election Campaign Act of 1971, which was 1) limited to paid speech ads for television, radio, and newspaper, 2) pertained to a particular candidate, and 3) required a disclaimer that included the name of the organization paying for the ad, the Honest Ads Act extends to digital platforms and alters the definition of an electioneering communication to include any paid speech ads concerning “national legislative issues of public importance.”

By creating an extremely broad definition of paid political speech, and whether or not it triggers a complicated and vague set of reporting requirements, organizations nationwide that are engaged in advocacy, including nonpartisan voter education, registration, or other grassroots outreach, will be silenced under the Honest Ads Act.

21st CENTURY TOWN SQUARE

Over the past 25 years, the internet has become the go-to destination for millions of Americans to learn about the issues of the day as well as to share their own views and to seek out the views of others. Whether someone resides in a small rural community or large metropolitan area, the internet enables everyone to find ways to get involved in issues and causes they care most about, from organizing and participating in marches to signing petitions to volunteering at local community events.

For organizations of all sizes, the internet provides an effective and inexpensive platform to reach large audiences and keep them informed about issues that matter to them and their communities. Under the Honest Ads Act, free speech across the online marketplace would be chilled by confusing and rigid disclaimer and disclosure requirements that both the organizations placing ads and the platforms accepting ads would need to follow. Inevitably, American organizations working to effect political or social change will struggle and as a result will be silenced as their voices are heard by fewer and fewer people.

NAVIGATING MURKY WATERS

Whether focused on political or social issues, organizations that run issue ads on any digital platform would be forced to navigate broad and confusing government requirements or risk hefty fines. In addition to basic disclosures about who paid for an ad, organizations would be required to maintain lengthy “public files” on ads pertaining to “national legislative issues of public importance” – an undefined category that seems to include most speech about government, public policy, and political controversies. For those organizations working on social issues, from racial justice and gun rights to environmental protection and reproductive rights, the path to comply with the requirements set forth in the Honest Ads Act is murky at best. And when confronted with employing a lawyer to ensure compliance to avoid fines, it’s reasonable to expect many organizations, especially smaller ones, will withdraw from online public discourse on issues that impact many within their communities.

Platforms or websites that run the ads are in an equally damning position. Like advertisers, they would be required to warehouse data about ad buyers in public files, including the ad buyer’s name, address, amount spent, viewership, a copy of the ad, dates and times the ads are first and last displayed, etc. The cost to collect, store, and report this amount of data is significant. Not only will it drive up the cost for organizations to run ads, it will also limit the number of platforms on which to display the ads and the number of individuals that can be reached. While larger platforms are better positioned to navigate the onerous requirements and to absorb the costs to comply (it’s no surprise that Facebook supports this legislation because it protects their competitive edge), when legislation inspired by the Honest Ads Act was passed in Washington state, some platforms ceased running political and issue ads statewide due to the confusing requirements of the law, leaving nonprofit organizations with fewer options for spreading their message and decreasing public debate about issues that are important to the state’s citizens.

In addition to the labyrinth of compliance requirements, all platforms hosting political or issue ads would be required to make “reasonable efforts” – another vague criteria – to ensure that any political or issue ads are not being purchased by foreign nationals. Failure to comply would lead to fines and potentially legal action by the government.

A WOLF IN SHEEP’S CLOTHING

In no way, shape, or form does the Honest Ads Act protect U.S. elections from foreign interference. Does anyone honestly believe that bad foreign actors determined to undermine democracy and sow division will be deterred by an expansion of electioneering laws? Instead, this legislation chills the free speech of law-abiding American citizens by imposing broad and vague disclosure and reporting requirements on organizations doing good work across the country.

For those few organizations that are able to correctly discern and comply with the confusing and costly requirements, they can expect to have a target on their backs as other groups, activists, and lawmakers who disagree with their message will file complaints that will trigger investigations, fines, potential legal action, and ultimately the silencing of those groups as well. The Honest Ads Act does one thing and one thing only: it silences causes and organizations in the United States – and the Americans they represent – from engaging in public debate online.