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.