This file contains archived live captions of the open meeting of the Federal Election Commission held on September 14, 2017. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission. >> STEVEN WALTHER: We'll convene the Open Meeting of the federal election committee for Thursday, September 14, 2017. I apologize for the delays that have occurred, but I think they have allowed us to communicate constructively on a couple of these matters that hopefully will move us along a little quicker than if we hadn't had that opportunity. I wanted to mention that on one of the agendas, the Draft Advisory Opinion 2017-10, that will take place next Wednesday morning. That's going to be continued. There is item number 7, that simply is made part of this record for purposes and to make a draft available to people who may wish to see that, but there will be no discussion or vote on that today. The next item I think because we can take it so quickly is going to be Draft Advisory Opinion 2017-09, Libertarian Association of Massachusetts. And I think we're preparing to vote without any presentation in favor of the recommendation. So would someone like to make a motion? >> Sure. I'll do it. >> STEVEN WALTHER: Very well >> Thank you, Mr. Chairman. With respect to Draft Advisory Opinion 2017-09 I move approval of agenda document No .17-38-A, the only draft we have in response to that request. >> STEVEN WALTHER: Thank you. Any discussion or debate? All in favor? Aye. Opposed? Thank you. Now we'll take the next matter Draft Advisory Opinion 2017-06, Stein and Gottlieb by Jonathan Berkon and Tyler Hagenbuch. And Draft Advisory Opinion 2017, draft A and B are documents before us. Counsel. >> Good afternoon, commissioners. Agenda Document No. 17-35-A and 17-35-B are alternative draft responses to advise request Stein and Gottlieb, rounded up change from purchase to federal candidates. They ask questions about structure of their mobile app. And both drafts conclude that the proposal is permissible and complies with the act and Commission regulations. We received three comments on the two drafts and none on request. Thank you. I'm happy to answer any questions and requester's counsel is here. >> STEVEN WALTHER: Okay. Thank you. Are there any questions of counsel? Mr. Petersen. >> MATT PETERSEN: There's being going back and forth I think in an agreeable direction. Just trying to narrow down any differences that we had, and it's all down to a footnote regarding the difference between the proposal here and the proposal on FYP. My colleague consideration Weintraub proposed a footnote. Have you had a chance -- I'm assuming -- >> I don't know that he's seen this. >> No, I haven't. >> MATT PETERSEN: The footnote that -- >> Let me back up a second. >> MATT PETERSEN: I will yield the floor. >> Thank you. >> STEVEN WALTHER: Consideration Weintraub. >> ELLEN WEINTRAUB: So first the first issue that I had, and we're trying to get to a yes for you, which should make you happy, was that the -- both of the drafts still relied on two advisory opinions that the chairman and I had not supported, the AO and the refledge AO, but neither one was necessary to the conclusion. They usually come up in string sites and in one place there was a longer discussion. So my initial edit was to just delete all the references to those two AOs, and that, I think, was agreeable to my colleagues and didn't change the result in any way. Then there was the issue that Mr. Petersen was referring to, is on draft B Page 7, line 16-22, the division between this and the FYP AO, which is important to some of us and not important to others of us, but I didn't want it to be interpreted as whatever we do here, meaning that, oh, now we resolved the issue. We still have the same disagreement over FYP, but the facts are different here. I suggested moving line 16-22 into a footnote, taking out the beginning, and importantly, because it's obviously not important to some people, and that's where Commissioner Petersen picked up a different edit. >> STEVEN WALTHER: Commissioner Petersen. >> MATT PETERSEN: I would propose we end the following two sentences. Some commissioners did not consider this to be legally significant, while others did consider it legally significant. There were not votes. >> And a site to the advisory opinion. >> That seems quite reasonable. >> I think that that kind of preserves our positions. It doesn't tilt the playing field to one side or the other and makes it clear to anybody who is reading this to know exactly what the issue was. >> There were a couple other sentences we took out, one at your behest and one at mine. We were working off of Draft B. Just so we're clear on what we're voting on. I think we know because we've been internally circulating the documents, but that's not terribly useful to you. >> I have Draft B here. I'll follow along. >> ELLEN WEINTRAUB: I think Page 10... >> The draft we've been working on... >> ELLEN WEINTRAUB: This may not line up. We're going to give you a copy. You can follow along. I apologize to the reporters in the room. We would be happy to make extra copies for you guys too. So on the revised draft that counsel now has, it's on Page 10. And it's in the -- it's part of the answer to question 2, may the project limit the available pool of recipient committees, in the paragraph that starts similarly, businesses that provide services to contributors, blah, blah, blah. We have deleted the phrase -- this really goes to the same issue we were just talking about. We've deleted the phrase, which is on lines 3-4 of this draft -- well, what is left is a sentence that reads "although the project will allow users to make contributions only to the featured candidates, it will..." then we delete "not consider offers or proposals from candidates that wish to be featured on the app but rather will." And resumes "select candidates increase user participation based on user analysis and user feedback." And we deleted the last sentence in the feedback. And then it goes into the conclusion, using reasonable criteria and other -- I think that summarizes all the changes from draft B. It was persuasive to me that you're basically offering kind of a mass level the same kind of donor advice that high-end end donors pay for. If they're organized through corporations or LLCs to offer advise that would be problematic. I don't know if it's distinguishable, not that it's done through an app as opposed to in-person consultations. And in your client's proposal, they're selecting candidates, but they are showing people a group of candidates that they're recommending, and there are three ways of doing it, three different baskets and ultimately it's the donors, the users who are going to be making that choice to sign up for that supporting those candidates under those circumstances. So that's important to me, it's the donor making that choice. They're not just sort of giving your client a blank check to support which ever candidates they think are good candidates. >> That is correct. >> STEVEN WALTHER: Commissioner Petersen. >> MATT PETERSEN: I think we're in agreement and we can probably move to motions. >> STEVEN WALTHER: make a motion? >> In consideration of 17201706, I move approval of Agenda Document No. -- I'll move Draft B as modified by Commissioner wind further modified here at the table, so approval of Agenda Document No. 17-35-B, known as draft B as modified by a draft last circulated by Commissioner Weintraub's office. I add 12:10 p.m. today. And as further modified here at the table. I would just ask the secretary that we discussed at the table, if you understand those or if it there's further questions you have. >> Yes, sir, I understand. >> STEVEN WALTHER: Okay. All in favor? [ ayes ] Opposed? Myself. I'm not there yet. Commissioner Weintraub, Vice Chair, Commissioner Petersen voted in favor. I voted against. Thank you. >> Thank you for all your work on it. We appreciate it. >> Thanks for your patience. >> STEVEN WALTHER: Draft Advisory Opinion 17-5, Great America PAC and committee to defend the president, Mr. Backer is here, and on the agenda are Agenda Document No. 17-30-A, draft A and Agenda Document No. 17-30-B, which is draft B. Welcome, Mr. Backer. >> Good afternoon. >> STEVEN WALTHER: Good afternoon. >> Thank you. Agenda Document No. 17-30-A and B are draft responses submitted by Great America PAC and community to defend the president. The commission considered this request at the Open Meeting of July 13th and since then there have been no new drafts though there were edits circulated this afternoon or comments. I'm happen to answer any questions you have. >> STEVEN WALTHER: Thank you very much. >> I believe we submitted a public comment after the first draft, or sorry, after the first meeting. >> Sorry, one comment after the first -- >> STEVEN WALTHER: Should that have been mentioned in here? Any comment? Commissioner Weintraub. >> ELLEN WEINTRAUB: Thank you, Mr. Chairman. I think draft A and B are similar with respect to the answer to question 5. Counsel will correct me if I'm wrong about that. >> That's correct >> ELLEN WEINTRAUB: Question 5 being whether there's requirement for a disclaimer on Twitter profile pages for political committees. And my own view is that unless you're mark Zuckerberg, you're always using someone else's platform. Political committees might have their website on -- they might have a website on Twitter -- a web page on Twitter, a web page on Facebook. They might use Word Press to set up their web page or they might have multiple platforms. And they don't own those platforms. They're not their personal platforms, but they have control over the content. I have a Twitter page. It's the Twitter profile and it describes -- gives all sorts of information about me, notably that I'm an FEC Commissioner, but also I'm a New Yorker and a mother and dog lover and all sorts of other things that one can say about one's self, and I think there is room there for disclaimers and it's important they be there so that if somebody is reading a tweet, you know, admittedly there's only 140 characters in a tweet, but anybody who wants to know who is behind that tweet has an easy mechanism of finding out. They click on the photo or avatar or whatever the person is using, and then you can go to the profile page and learn more about whoever is behind it. And since political committees, you know, not everybody needs to have a disclaimer on web pages, but political committees do, and I think these are web pages and it's feasible and is required under the regulations. >> STEVEN WALTHER: Any further comment? Ready for a vote? >> Draft A first, just so we're... >> Mr. Backer, we gave a lot of thought to your branding and your communication objectives. At the end of the day, we felt bound by the plain language of the statute and reg on what is required of a disclaimer. The draft A that I support makes very clear, however, that you can add -- you can augment your disclaimer to include your Twitter handle. And how you feature that, how you say "contact us at," I appreciate your concerns about having cross-identifiers, but if it's a P. O. Box at 123 Washington Street Alexandria, Virginia, it's part of the required disclaimer under the black letter law. I think you can still feature your Twitter handle quite prominently to drive traffic there. So I think you can meet your objectives and I think Draft A tells you you can augment that disclaimer to meet your objectives of driving people to a Twitter page. So at the end of the day, although we tried mightily, we didn't feel comfortable varying from the plain language of what is required in the law. I just wanted to let you know that we gave it a lot of consideration. We considered the distinctions in the regulations, between the difference of the website of a political committee versus a World Wide Web address, and whether a Twitter address could be a World Wide Web address but not the website of a committee. We want to let you know we worked very hard through that issue. At the end of the day, though, I think we felt bound by the plain language of the statute. I know you had advisory opinion a few years ago with a long JFC name and we found bound at that time too. But I want you to know we did investigate other legal interpretations to try to relax the standard. At the end we didn't feel comfortable relaxing the standard of the disclaimer, and I just want to let you know that. So with that, Commissioner, Mr. Chairman, I move approval of Draft A in Draft Advisory Opinion request 2017-05, Agenda Document No. 17-30-A. >> STEVEN WALTHER: Thank you. All in favor? [ ayes ] >> STEVEN WALTHER: Opposed? >> No >> STEVEN WALTHER: . Commissioner Weintraub. >> ELLEN WEINTRAUB: Thank you, I guess I should have explained that the answers to 6 and 7 are dependent on the answer to question 5, so there's a ripple effect. With respect to advisory opinion, I move approval of Draft B as the answer set forth in Agenda Document No. 17-30-B. >> STEVEN WALTHER: Thank you. Discussion? All in favor. Aye. Opposed? No. Commissioner Weintraub and I in favor Vice Chair and Petersen against. >> Mr. Chairman? >> Commissioner Goodman >> I would like to inquire general counsel if they believe from the votes we just had if they can cobble together what was in common and provide a draft the commission cannot agree on the issues not in common between those two drafts? >> Yes. >> You need a motion for that? >> STEVEN WALTHER: I think we voted on the substance enough. We probably don't need it. It's probably a matter of doing it. Agree with that? Thank you very much for being here. >> Do you guys need another extension of time within the response period to put that together since it would be tomorrow? >> STEVEN WALTHER: Probably a day -- >> Give us a couple of days, that would be much appreciated >> STEVEN WALTHER: So what would be the end of the week? >> Thanks. >> STEVEN WALTHER: Thank you very much again. >> STEVEN WALTHER: Vice Chair. >> CAROLINE HUNTER: I move the Commission add to agenda consideration of reg 2011-2 Internet communication disclaimers and the draft campaign. Steve, you don't want to talk about the draft campaign guides today, do you? Or do you want to -- >> STEVEN WALTHER: I'm missing something. I don't want to talk about what? >> CAROLINE HUNTER: The draft campaign guide. >> STEVEN WALTHER: I mentioned at the beginning. >> CAROLINE HUNTER: I'll take that off then. >> STEVEN WALTHER: Try and save time today >> CAROLINE HUNTER: Commission that business still requires no early public announcement possible. I further... yeah. >> STEVEN WALTHER: All in favor. [ ay es ] Opposed. Passed unanimously. Commissioner Weintraub. >> ELLEN WEINTRAUB: Thank you, Mr. Chairman. I surprised we needed a motion. >> CAROLINE HUNTER: I see the look on your face. We made the motion because the agenda was already sunshined when the document was received. >> ELLEN WEINTRAUB: Thank you for the clarification, Madam Secretary. So here we are again. Last week we learned that Facebook acknowledged that some 100,000 to $150,000 in political advertising was placed on their platform during the 2016 election by foreign nationals, specifically by folks operating out of Russia. And that's troubling for a variety of reasons, and there are a lot of people in this town who are concerned about that, and I think on a bipartisan basis and looking into various aspects of that. But one aspect of it that jumped out at me was that the fact that political ads are being placed and nobody knew where they were coming from is an issue that is squarely within our jurisdiction. That's what we do. We make sure that political ads have appropriate disclaimers so that, as the Supreme Court has said, we can have an informed electorate and the voters have access to the best information about the candidates and their supporters. Now, of course, I've been talking about the need for us to do some kind of rulemaking in response to the continuous revelations about potential Russian influence in the last election, and what we can do about it going forward. This is not -- this is not backwards-looking. This is forwards-looking, because we have another election coming up next year and many commentators have pointed out that -- including some fairly high government officials from other agencies, that we have every expectation that these kinds of activities are going to continue, that we're going to see them again. So I don't -- I don't feel comfortable with us sitting on our hands and not doing anything between now and the 2018 election, particularly because there is a very modest step that we could take that -- because this is an issue, the issue of Internet disclaimers is one that the commission has looked at repeatedly over the year and has put out an Advanced Notice of Proposed Rulemaking. Staff drafted an outline for us as far back as 2012 on what a Notice of Proposed Rulemaking might look like. We did not act on that. In some ways this issue goes back to the Internet rulemaking that we did between 2004 and 2006. Now, that's really a long time ago in the world of the Internet. Back in 2004 to 2006, nobody had an iPhone. We didn't have all these smart phones that we're walking around with, you know, carrying the potential to learn the equivalent of what used to be housed in whole libraries. Now we hold it all in our pocket, the ability to find information about all sorts of subjects. And now pretty much everybody carries these things around and, indeed, gets a lot of political information off of this platform. Off of this device. Or similar devices. So back when we did the Internet rulemaking in 2004 to 2006, we were really in a whole different world in terms of what technology was capable of doing. But back then we decided that the one thing we wanted to make sure we covered was paid political advertising on the Internet in our regulations, and there was general agreement on that. There was not a lot of pushback at the time and, in fact, the rulemaking was very well-received. We invited a lot of room for people to engage in advocacy online but wanted to make sure that political advertising on the Internet was still covered by our regulations. This got a little bit confused in 2010-2011 when we had a couple of AO requests where we just didn't really agree on exactly how those -- that regulation was going to interact with another regulation that said that if things are really small, then -- or it's impractical, then you don't have to put a disclaimer on it. Now, that was -- those regulations were designed for things like pens and bumper stickers that tend to be either physically handed to you by a person with a face that you can see or plastered on a car where you can see the car and the driver and you know who is promoting that message. When things come over the Internet, you really often have no idea where it's coming from, and indeed it appears we diplomat have any idea that these ads were being placed by the Russians in the last election, and needless to say there is a prohibition on foreign nationals spending money in our elections. Now, you know, what is a small item in relation to the Internet is a really interesting question. And I think it's one that we can benefit from some guidance from folks like Google and Facebook and Twitter. I'm just talking about Twitter disclaimers a few minutes ago. I think they could be very helpful to us. Again, I'm not looking to do some kind of inquisition as to what happened in the last election. What I want to know is what can we do going forward? How can we address the problems going forward to ensure that when people are seeing ads on the Internet or picking up their phone and seeing it on small devices, that they know where the information is coming from. Because in the one -- on the one hand, this is pretty small, you know, what I read on my phone is written in I suppose relatively small print, but, on the other hand, as I said, it contains the capability of providing the answers to a library's worth of questions. So is this too small or is, in fact, nothing too small anymore to provide information to the American people? Are we actually always getting information from small places? Now, we had -- because of this conflict in the way commissioners were interpreting the regulations, we put out an advanced notice of rulemaking in 2011. We got comments but not a lot of them. We tried the end of last year and, again, we got some comments but not a lot of comments. I don't think -- I think either people thought we weren't going to do anything, so why bother, or they didn't really focus on the importance of this issue. Right now I think people are very focused on the importance of this issue, and that's why I am recommending that we put it out for comment again for another 30 days, see what people think about this issue now in light of what we are learning about what happened in the last election and that we schedule the hearing that we already agreed to have. At the end of last year we put out a Federal Register Notice and scheduled a hearing for February 1st and decided to postpone that hearing but never actually rescheduled it. I think we should reschedule the hearing and invite in, as I said, experts who can really help us come up with the best possible rule given the technology, given both the capabilities and restrictions on the technology to provide information to the American public so that when they click on things they know where it's coming from. You know, people can choose different sources of information, and people do. You might choose to get your news from New York Times.com or you might choose to turn on FOX News or you might choose MSNBC. When you make the choices, they're informed choices. You know you're going to get a different perspective from those sources, but you know what perspective you're going to get. You click on an ad that is being placed by -- in some cases Russian bots, these aren't even human beings, you have no idea where that information is coming from or whether to give it any credibility or whether it's worth clicking on at all. And I think that this is information that the American public deserves. And if we can find a way to provide it to them we should. I'm not suggesting that by redoing our Internet disclaimer regulations we're going to solve the whole problem. Obviously, we're not. But we're going to solve a piece of it. We would be taking a small constructive step in the right direction towards trying to address a very serious problem. It really should not be viewed as a partisan issue. Foreigners are mucking around in our elections and likely to do it again and they don't care about parties. They care about causing disruption. That's what they're trying to do. And they'll support whoever they think will sway things in their direction or cause the most disruption and nobody should be under the delusion that this is going to benefit one party over another in the long term. One country gets away with it last time, other countries may try it again, and I think it really behooves us to take whatever steps we can to try and address any piece of this. I'm willing to go as big or little as people want to go. You want to launch a broader rulemaking and address more issues, then I'm happy to do that, but even if all we can do is take up this issue of Internet disclaimers on public communications on the ads that are placed on the Internet, I think it would be a step in the right direction. The last time I raised the issue earlier this year of launching a rulemaking, addressing foreign spending, my colleagues put out a statement saying there is no evidence of a concerted effort on the part of foreign nationals to make contributions or expenditures within the purview of Commission jurisdiction. Opening a rulemaking on the subject thus is not necessary. If new evidence emerges that changes the factual predicate we would of course consider whether to engage in a rulemaking. Well, I think we have new information now. We have new evidence. We have the revelations from Facebook from last week and as I said, inviting the information about who is behind political advertising is in our jurisdiction, within the statute, within our regulations. And I hope that we can agree to, as I said, it's a small ask. Let's put it out for comment for another 30 days and let's find a date, schedule a hearing, invite knowledgeable people in to help inform us and see if we can come up with a rule that is going to address this problem. >> STEVEN WALTHER: Thank you. Any comment? Commissioner Goodman. >> LEE GOODMAN: I'm not averse to going out for further comment. But before we do that, I guess I want to understand the logic of -- we put this out twice, and we all understand the -- we all understand the problem of small items. We've run across revolution messaging, claims of technological problems. We all understand the landing page solution, you know. So I just kind of want to understand the logic before I leap to reopening it. About the justification for doing so. Because if we're doing so under the name of -- or for the stated purpose of addressing foreign national advertisements, I guess I'm -- we can discuss that for a minute. But I'm more concerned how we're going to impact on American citizens who communicate on the Internet, and I'm not for reopening the 2006 exemptions with respect to American citizens. Or imposing greater or more onerous burdens on American citizens when they speak online to address what may be a unique or discrete problem of foreign national advertising. So that's one concern I have. Even if we go out for further comment, and maybe this is for public consumption as much as it is for the Commission, I want to be clear, if the logic or the rationale for reopening this is to address foreign national spending, I hope that we can keep it focused there. Granted we still have small items to deal with and those issues that we have grappled with for American citizens, but I don't want to restrict American citizens' ability to speak unnecessarily just to reach that foreign national expenditures. Now, my second observation about the logic of addressing foreign national expenditures through the mechanism, the regulatory mechanism of the disclaimer is sort of two or three-fold. The first is, if the expenditures are prohibited in the first instance, why would we fashion a disclaimer rule to require disclaimers on what are prohibited expenditures anyway? The last thing I want to do is perceived as endorsing prohibited expenditures by crafting a disclaimer rule for them, and I don't think it's realistic to think that people or bots from anywhere in the world are going to post disclaimers saying "we are violating American law the foreign prohibition and we are hereby disclaiming it." So I'm testing the logic here of whether or not disclaimers are the right mechanism to get at foreign national spending. I think we also have to recognize that all political information and propaganda in America funded by foreign nationals is currently the subject of a legal obligation to include a disclaimer under the foreign agents registration act. And that goes far beyond our narrow jurisdiction on express advocacy. Any political discussion directed into the United States by foreign nationals is technically subject to registration at the Department of Justice and then -- there is a standard disclaimer, slightly different than ours, but identifies who the spender is, and you will see this disclaimer, for example, in some foreign newspapers published in the United States. It's right outside our doors here. There's a box where you can buy the China Daily for 25 cents. And every edition of the China Daily, because it is owned and operated by an organization in China, even though it now operates in the United States, includes that foreign -- the foreign sponsorship disclaimer required under the Foreign Agents Registration Act. So if it's within our jurisdiction, the expenditure is already prohibited. But if its issue speech, and what we read in the newspapers was about decisive social issues. I don't know what they all were, but if it's issues speech, Congress made the determination that foreigners may freely communicate about political issues in the United States. Not expenditures and contributions in connection with a federal election but issue speech is committed under the Foreign Agents Registration Act. The only requirement is that those American agents of those foreign sponsors register with the Department of Justice, file regular disclosures of all of their activities on behalf of the foreign nationals, and post disclaimers on all materials they publish stating that the source or the funding of this was the foreign national. So I guess I want to be sure -- again, by the way, I'll go out for further public comment and maybe this can inform some public comment we get. Because if I'm missing something, I'm all ears. But I guess what reaction do you have to that, if we're going to go from revelations in the newspapers last week about Facebook ads to using the disclaimer mechanism to reveal those foreign sources? I just think we ought to understand the rational, we've already gone out for public comment twice on disclaimers. I think the implicit understanding, we were discussing American citizens speaking, because foreign speech would have been prohibited anyway. I guess I think we ought to feel comfortable with our objectives in reopening this for comment. >> STEVEN WALTHER: Commissioner Weintraub. >> ELLEN WEINTRAUB: Thank you, Mr. Chairman. I appreciate your willingness to consider going out for further comment and I'm perfectly happy -- like I said, this is -- I'm not -- I would be happy to do something larger, but what I'm here today is to make a small ask. I'm not proposing that we -- you know, if you're interested, I'm happy to talk with you about it, but I'm not here proposing we reopen the rulemaking from 2006. I think that's something we might want to talk about at some point because -- if only because the technology has dramatically changed since then. And, you know, what the state of play back then and the state of play today is just very different, and that might have some ramifications that we might want to think about. But that's not what I'm suggesting today. I want to focus in on this project that we have, you know, put on the shelves, taken off the shelves, put on the shelves, taken off the shelf, and whether that could help us address a small piece of this very serious threat to American democracy. Now, we don't have jurisdiction over FARA, so if the people -- I guess it's the justice department that has jurisdiction over that, and if they want to beef up what they're doing under FARA in response, that's their call. That's not something we can do anything about. But, again, we're talking about disclosure behind political ads, which is something we can do something about, and the Supreme Court has told us, as far back as Buckley, I believe, there are three purposes behind these kinds of disclosure requirements. One is to inform people, to inform the electorate. One is to deter bad conduct, and one is to detect bad conduct. You know, so two-thirds of it goes to trying to prevent bad things from happening or find out about them, because if you don't require any information, then it's harder to find out. And I think that is part of what happened in the last election. Nobody knew where these ads were coming from. And what I want to reopen is an examination of whether we can do a better job of providing to the American people the information about where these ads are coming from. And I think that to some extent that will have a deterrence function and to some extent it will help us stay on the road -- not only us, other folks in town -- in detecting when illegal conduct happens. It was illegal and it happened and we didn't find out about it until much later. Maybe we would have found out sooner if there were disclaimer. There would have been a trail that people at least would have been able to try to follow. Now if there's no disclaimer, there's nowhere to even start. We found out about this because Facebook came forward and revealed this. We know that the disclosures that are provided under all aspects of the Federal Election Campaign Act are scrutinize by all sorts of people and they find things in them and they find things that journalists look into them and do their own investigations and often this leads to complaints down the road that we can then dig into and try and find out what happened. But, again, if we're not asking for any information on the front end, we're just opening the door. You know, if we say, this is illegal, but we're not going to have any kind of mechanism where anybody could tell where this stuff is coming from. We're leaving the door wide open and I just don't think we ought to do that. As I said, it's not going to solve the entire problem, but I think we can solve a little piece of it >> Mr. Chairman -- >> STEVEN WALTHER: Mr. Goodman. >> LEE GOODMAN: I guess I'm questioning whether it even solves a small piece. Because already we have a disclaimer requirement even for online ads, and the only disagreement has been -- for paid online ads, and you say you're not looking at going back on the 2006 rulemaking for volunteer -- the volunteer exemption, the unpaid ones, but -- so I already have a disclaimer requirement for paid ads that expressly advocate or defeat a candidate. So technically if a foreign national funds one of those they're already subject to that disclaimer requirement. And, second, I guess I -- are you proposing that we make clearer that foreign nationals, when you fund ads expressly advocating American candidates you must include the disclaimer that all Americans must include? Hold aside the small items exemption for a moment. That almost distracts us from the core issue. Are you suggesting that we clarify in our regulations that disclaimers are required on prohibited online advertisements paid by foreigners? I mean, I think they already are. I mean... >> STEVEN WALTHER: Ms. Weintraub. >> ELLEN WEINTRAUB: I'm proposing that we make clear that the disclaimer is always required, but you said put aside the small items. I don't think we can put aside the small items because that's the whole -- that's the reason why it's unclear now. I'm delighted to hear that you think that it's, you know, all paid advertisements on the Internet require that express advocacy and require disclaimers now, because that was not my impression of what your position was. >> LEE GOODMAN: I think it's been very clear and we had advisory opinion some time ago from Mr. Backer about emails and things he wanted to send on behalf of this large joint fundraising committee and it was going to be very cumbersome and we said, yep you have to include your disclaimer even in electronic messages because it's not character limited. The only areas where I think we sort out where the disclaimer has been required versus not required is if it's not posted for a fee, okay, so if it's posted on Twitter or YouTube or your own blog or your own website and you didn't paid a third-party fee, I think the 2006 rulemaking says no disclaimer is required. You pay a fee to a third party online and you have to have a disclaimer. And most large banner ads carry that disclaimer. The second area -- and I don't think there's been any disagreement on that. Well, there has been -- there have been a few where we've disagreed on whether or not something was posted for free on YouTube. But secondly was the small items. So we had a disagreement with Revolution Messaging, there may have been disagreements before I came here on Google -- >> Google and Facebook. >> LEE GOODMAN: Because the space that was allowed for advertising was character limited. And Google was marketing an advertising product at that time that was limited to -- was it 90 characters, 100 characters? Something very small. And it was -- so there was a small items exemption disagreement there. But we are in agreement that if the space allows for the disclaimer and you pay a third party a fee, you have to post the disclaimer even if it's online. The disagreement has been where the very small banner ad on your cell phone simply cannot accommodate it. And so is your objective to address small items by foreign nationals that would be prohibited in any event? Is that the purpose of reopening the disclaimer mechanism as a way to address what we read in the newspapers, is to get at foreign national expenditures for small ads? Is that what you're concerned about? Because those ads if they expressly advocate are prohibited anyway. I guess I'm just trying to get the logic of the end game here. Where we might land before we put ourselves and a bunch of people through a long process to make them think we're going to address foreign national spending, which is already prohibited, through a disclaimer mechanism. I'm trying to understand that logic before we undertake a lot more work on an issue that is already going out to public comment twice. >> STEVEN WALTHER: Ms. Weintraub. >> ELLEN WEINTRAUB: As I said, I don't think people were really focused on this aspect of disclaimers and the fact that without the disclaimers -- and I think most ads that are being posted on Facebook and on a variety of other platforms actually are not carrying disclaimers. We may have a basic factual disagreement here and maybe we should do some research on that and maybe we can get our friends at Facebook and Google to help ups out and provide some data on that. You know, one of the issues that has come up in the context of the recent news is that when ads are posted -- are broadcasted, the FCC has databases where people can go and find out -- find all the ads, and they know exactly what the ad said and where they were and how long the ads were and there's hard data on that. There is no such database for ads that go out on the Internet. So we may have just a basic factual lack of agreement on what is going on out there. But it is my understanding that a great deal of ads that are being posted on places like Facebook and Google, that there's a -- that there are lawyers out there who are advising their clients based on the positions that some Commissioners took in if Google and Facebook AOs that they don't have to have disclaimers. And I hear what you say that it's already illegal for foreign nationals to be running these ads, but we don't have a mechanism for finding out who is behind the ads if we don't have any disclaimers. As I said, the Supreme Court has upheld the disclosure functions to deter, detect and inform, and deterrence and detection are two important functions that are -- we're not getting the benefit of when we don't have any information. If you want focus the comments -- if you want to say when we put this out for 30 days of extra comment and give the American people an opportunity to weigh in on this, in light of current events, if you want to say we want to focus -- we ask you to focus your comments on -- >> Foreign national use. >> ELLEN WEINTRAUB: I've got no problem putting that out. >> STEVEN WALTHER: Mr. Goodman >> LEE GOODMAN: If they're small items, I think you're right, a lot of people are not including the disclaimer because they use the click-through guidance from a prior advisory opinion and it goes to a landing page where there is a disclaimer. I think if it's large enough, I often see the disclaimer on a larger advertisement on my computer screen. I often do see it. But I think a lot of people in the small items, yeah, they allow you to click-through and a lot of lawyers rely on the Google advisory opinion and I believe it's adequate that the disclaimer shows up when you end up at a landing page. >> ELLEN WEINTRAUB: That's fine if that's happening, but I don't think that -- my concern is there's a lot of advertising going on out there that isn't having a click-through. >> LEE GOODMAN: The last thing, I don't think we have statutory authority to do what the FCC does, which is to require publishers, whether it's The Washington Post or Facebook or any other online advertising -- publisher that sells advertising to collect that data for us ongoing. I think that requires a statute, it's statutory at the FCC. As a condition of having a broadcast license you have to keep the records of the political advertisements. That's why the FCC has it, because there's a legal requirement that the broadcasters keep it. We have never made broadcast -- excuse me, broadcasters, radio stations, Facebook, people who sell advertising, we've never made them responsible, legally responsible for either keeping records or in any way legally responsible for the posting of the disclaimers. The disclaimer has always been legally the responsibility of the person who is paying for the advertisement. There's a long 30-some-year history of cases the Commission dismissed against radio stations and others for an ad's failure to have a proper disclaimer. So I don't want to make -- it wouldn't be my objective to impose on advertising companies, television stations, radio stations, newspapers some legal obligation to keep records of that. But let's go back now to the Foreign Agents Registration Act -- >> Before we do that, can I respond to what you said? Because otherwise -- >> STEVEN WALTHER: Ms. Weintraub. >> ELLEN WEINTRAUB: Thank you, Mr. Chair. I'm not suggesting that we initiate the kind of database here that the FCC has for broadcasters. I agree that if we wanted to require that, that would require statutory change, and Congress might want to consider that. What I was suggesting was that since we seem to have -- we seem to be operating on different assumptions as to what is actually going on out there, that we could ask, not that we could require, but that we could ask people who have access to that kind of data if they would like to share not the -- not the in the weeds proprietary information but more a generic sense of scope and scale of how many ads are run with disclaimers, what percentage of ads are run without disclaimers. You know, they might say, oh, we can't -- we don't know. We have no idea. Or they might say, we actually do have a pretty good sense of that and we can tell you at least within a range what going on out there. And at least we would be operating on the basis of the same factual predicate. I'm just setting -- >> LEE GOODMAN: But largely with respect to American citizens. And, you know, I've been comfortable with the Google construct, you know, for many years. I think most people have, as long as you land at the landing page, I think that's been a pretty safe place for lawyers to advise people to provide people with adequate information. But, again, all the ads that I read about last week, they discussed issues. So I guess my next -- >> Not all of them >> LEE GOODMAN: Okay, but I've seen no report of express advocacy. But the -- if it's issues, I guess I remind you, those are supposed to carry a disclaimer right now. And if they didn't carry a disclaimer under the Foreign Agents Registration Act, they're supposed to-the Department of Justice provided FAQs and said if you are directing materials in online into the United States you're supposed to include that disclaimer. There's legislation pending in Congress right now to make that more explicit in the Foreign Agents Registration Act itself. But the guidance pre-dates the proposed legislation. So I guess I come back to -- let me ask you one other question then. Leading from the fact that I don't think that many foreign advertisers are adhering to the Foreign Agents Registration Act already in the disclaimers required there, how do you propose that this agency enforce a disclaimer requirement on prohibited expenditures, things prohibited in the first instance, if a foreign national posts something online on a foreign computer through a foreign server on foreign soil and yet is as accessible to be read by American citizens online in the United States? How do you propose -- how do you propose addressing that problem? Do you look to see whether advertising payment was paid to a company in the United States? I guess that's a -- again, you're going to get a "yes" on going back out for comment. Before we do, I guess I think it's important that we flesh out the logic of doing so. >> STEVEN WALTHER: Commissioner Weintraub, I do have a question. If we're going to have the likes of Facebook and Twitter and Google to come here, I'm wondering if we shouldn't in the 30-day period see what they have to offer us and find out if they'll come and what they have to offer that would be advantageous for us to know going forward. Because I don't -- what we're talking about doesn't seem to necessarily have a fix from any kind of -- I don't know, a new application of communication but maybe that is -- I don't know how to use the language, but basically I think we're talking about, you know, things that might require somebody to report, but not necessarily -- but the new technologies will do for this -- we'll call it a dilemma.. What is your thought on that? >> ELLEN WEINTRAUB: I agree with you, Mr. Chairman, I think we should absolutely have the comment period first and then have the hearing. I think that would make the hearing much more useful. And as to what technological fixes might be out there, I would hope to learn as part of this process. I don't -- I'm not sitting here today saying, oh, I've got the solution all mapped up for you. I know exactly what we ought to do. That's what emerges in the information gathering and in the hearing process and the comment process. As I said, we put out an Advanced Notice of Proposed Rulemaking. If you want to start an actual NPRM, as I said, lawyers started to draft something in 2012, and we never gave them the go-ahead to actually put together an NPRM. You want to start with an NPRM and then have the comment period and hearing, I'm open to that. What I was originally suggesting, although open to other ideas, is we reopen the comment period for 30 days and hold a hearing and then that would inform a potential Notice of Proposed Rulemaking. >> Mr. Chairman... just following on both of those, here is what I would propose. That we go out for -- I don't know, 30, 45 days, pick the number of days. So I take it there will be about a week, Jessica, to write -- I'm asking. I'm not asserting. But it will take a little time to re-write a new advanced notice of public rulemaking. Will it be a new advanced notice or the same one but an extension of the comment period. >> It could be any of those options, whatever we decide. >> LEE GOODMAN: And then that goes to the Federal Register and take a couple days and start the clock from the day published, 30 days, 45 days, okay. We've done this twice before. And one reason we didn't hold the hearing, my rec election is because we didn't -- my rec election is we didn't get comments that would justify a hearing on this topic. We wait to receive the comment and then decide whether we're going to have a hearing based on the comments we receive. As you say, the interest in this may be heightened, Commissioner Weintraub, and it may -- it may be deserving then of a hearing. And especially if these issues are focused on the foreign national problem and it may be a very focused hearing based on what we receive. So what I would suggest is that we agree to go out for another public comment period and then based on the comments we receive decide whether we're going to have a hearing at that time. In the meantime I'll be exploring with the Office of General Counsel further analysis of the Foreign Agents Registration Act and how it may overlap with some of our disclaimer rules, and we can become better informed about that as well. >> STEVEN WALTHER: Commissioner Weintraub. >> ELLEN WEINTRAUB: I would rather -- I think a hearing would be informative, particularly if we -- historically when we hold hearings we put out a notice and we say, hey, anybody who wants to come and comment, anybody who wants to testify, let us know in your comments, and we just kind of let whoever wants to testify show up and testify. I'm suggesting that we should take a more proactive approach and, yes, let anybody who wants to say they'd like to come in and testify but also to reach out to certain folks that we think might be particularly illuminating to have before us. And I think that personally I'm willing to make that commitment right now. If you're not willing to go that far, I will accept a half-measure. I would like -- I would like to get a commitment that if we decide to have a hearing, we're going to try to schedule it -- you know, once the comments come back in, let's say -- I think really I'm torn between wanting to have a long comment period and to enable people to give us thoughtful comments and the fact that I do think this is something that is very time sensitive, and we've put it out before. The issues are, I think, not going to be hard for people to grapple with. So I would suggest that we keep it to 30 days in order to keep the process moving, and that we then make a decision on a hearing within two weeks of the close of the comment period and if we decide to have a hearing that we try to schedule it for this year. >> LEE GOODMAN: I'll agree to the comment period. I'll agree to ask Office of General Counsel to expedite it. I think that when it's redrafted for republication, I should focus -- the American public and comments on the foreign national issue, because I think that's the impetus for going back out. I'm not prepared to be placed on terms at this point because I don't know what I'm going to receive. I don't know the depth of them. At this point I'm not wholly convinced that the disclaimer mechanism is the proper regulatory or going to be an effective regulatory mechanism to address the problem of foreign nationals spending in American elections if that is a bona fide problem. And so I want to see the comments before I agree to take the next step, which is to go to public comment. >> STEVEN WALTHER: Madam Vice Chair >> CAROLINE HUNTER: My understanding is to reopen the comment period, so the same notice that has been sent out before, maybe just with a cover memo explaining that it's been sent out on this date, this date, and we're sending it out again for 30 days. My understanding is the same document that we've already put out for comment. >> ELLEN WEINTRAUB: I think that's correct and I think that would be the most expeditious way to do it and I would -- since Commissioner Goodman wants to focus on the foreign national issue, then I think we need to highlight that in a brief discussion. And, you know, point people to the Facebook story, because that is the thing that has changed and that is prompting it. We know that foreign nationals are placing political ads because Facebook has told us. They don't even know what the full scope of the problem is yet, but they know that it's there. >> News reports? >> STEVEN WALTHER: I'm reluctant to getting into naming names. I'm a little curious to know, what are we going to ask people for? I'm not particularly of the mind that if we fill this room of people who are mad and want us to do something that we're going to benefit from us as Commissioners. I'm thinking of what we can do and get the people here that can help us with that. So, I mean, in that mind, I think we should make sure that we're going to be able to get the Googles or some of the people who have the technological expertise to help us move in a constructive direction. But I have just a bunch of placards here and people are upset, which is fine, I understand that, but we have a limited role here. Commissioner Weintraub. >> ELLEN WEINTRAUB: Personally, I'm -- I'm happy to hear from anybody who wants to comment on this, and I think we're the last people in the world to say we don't want people to show up and express their view at the Federal Election Commission for heaven's sakes. You don't want to mention Facebook, that's in the notice, fine, I think we have to say something about the foreign national issue if we want to focus the comments in the way Commissioner Goodman wants to focus them. I think we should specifically invite Facebook and Google and Twitter and any other similar entities that my colleagues can come up with to provide us with comments. I agree, we want to hear from those people. Goods I think notice in the federal Federal Register is enough. If theyn't two supply information, they know how. Many have been before us before on advisory opinion requests. Some are under a great deal of scrutiny right now in other forums. And frankly, as the chair said, I'm not prepared to name names based on some newspaper articles because I haven't read the ads. I don't know what those -- I've drawn no conclusions by the way about what the ads said or if they're even under our jurisdiction. Because I have no idea what the text of those ads said. So before we start pre-judging matters that may be before us, I'm prepared to go out for further public comment on the existing NPRM can particular interest on foreign national spending and then wait and see whether those comments convince me that there is enough logic that the disclaimer mechanism is an appropriate or suitable regulatory response to what may be a problem. >> ELLEN WEINTRAUB: What may be a problem. >> STEVEN WALTHER: Commissioner Petersen. >> MATT PETERSEN: I just wanted to add my voice. I hope my comments, sir, are -- don't step on my colleague Commissioner Goodman's toes, because I think understand what his concern is in terms of focusing the message that we put out there with respect to this issue. I know that you're concerned about taking actions that could in an effort to attack one problem put impediments on American citizens to be able to engage in online political discussion and use that for a vehicle for all the various political activities, and I am -- I very much agree with that. However, I don't want to necessarily restrict the scope too much. And let me explain the reason why. You know, in the last what, 11 years, since the 2006 rulemaking, there's no question about the extent to which the Internet has revolutionized the way in which we receive political information, consume it. I mean, the number of political ads, it's now -- I would guess it's maybe overtaken almost any other vehicle for fundraising. It's revolutionized the way in which people can raise money through small dollar increments, mobilization efforts are executed through the Internet, that's the way citizens are gathering news and information about candidates and evaluating respective positions and so forth. And I think that the position that the Commission took back in 2006 has given a little bit of regulatory space for the Internet to flourish, and I think in a very positive direction. Not to say that everything that happens on the Internet with respect to politics is positive. I mean, politics is politics, there's going to be mud slung and other things that are going on, but I think that the development as a tool and as a vehicle for information gathering, fund raiding, mobilization so on and so forth has been a very positive development and with respect to the issue regarding disclaimers, my concern has been making sure that that ability is still there and that we don't in some way impede that continuing development. And so as we consider this issue in the Google advisory opinion, the Facebook advisory opinion, revolutionizing messaging -- this was before my time but the issue that regarded character-limited text and whether or not they would require disclaimers on them. You know, my primary concern was ensuring that we are not doing something to unnecessarily impede the ability of these sorts of platforms and others similar to those to be vehicles for individuals to be better informed about the political discussion about candidates, about issues. And so it's -- this one has really intrigued me about how does the online political environment interact with our small items in practicable disclaimer requirement, and one of the things that I would -- that I'm most interested this is to what extent has technology evolved where this is no longer the same concern, when we -- I've just got me copy of the opening up of the comment period and it talks about some of the basic facts, some of the advisory opinions, the Google advisory opinion that we considered. We were dealing with a 95-character limit on the ads or available Facebook 160 characters. Revolution messaging was banner ads that pop up on your phone. Discussion I've had with others, it's really a kind of fascinating and very complex environment in the sense that how this disclaimer requirement and the possible small items exception would interact with that really depends not only on whether you're viewing something online or whether or not you're doing it through traditional media, but how you're viewing something online. Are you viewing through a computer, desktop, laptop, through a tablet, through a cell phone? If you're doing it through a cell phone, Apple, Blackberry, motorola? Is it a recent model, older model, is it more advanced? Is it a more basic? Because the different operating systems and the different software and hardware badges may impact the technological possibilities or the technological limitations. And so having the ability to learn what the current state of technology is in this, that could inform where we're going in this to a very large degree to ensure that whatever decision we make we don't unnecessarily impede the Internet as a tool for political engagement. I know that one of the suggestions or developments that has happened in the past is that some of these ads, if you're -- you know, if you were to just put your cursor on the length and maybe a disclaimer would pop up, which, again, works when you're on a laptop, works on your computer, but how does that technology work when you're on a phone or on a tablet? And maybe it does now. I don't know. But I think getting a sense where the current state of technology is would be helpful for allowing us to know whether or not technology has now advanced to a point where the small items exception is no longer necessary because it's simple enough for the characters to be put on the advertisement, to put on the necessary disclaimer or whether or not there still are limitations or there are so many distinctions between different platforms and different phone providers, tablet providers, that it would be very difficult to have a one size fits all rule. So I would ask that we not unnecessarily restrict the scope of this, but I think I'm doing it in the same spirit as Commissioner Goodman expressed in order to make sure that the Internet and the availability of information isn't impinged and citizens continue to be able to use this. Whatever we discussed is a -- facilitates greater transparency and availability of information rather than puts, you know, a little bit of a hurdling or a road block. I just wanted to put my two cents why this has been an issue that I found interesting and to the extent that we get some of this information in the comment period I would be -- I would be interested to see what sort of information and comments and feedback we get and then once we get that then make a decision if we want to move forward with the hearing. >> STEVEN WALTHER: Commissioner Weintraub. >> ELLEN WEINTRAUB: I completely agree with everything that Judge Petersen just said. I can tell you from experience when we did the Internet rulemaking ten years ago it was the most fascinating hearing that I have ever sat through in this building. We had all sorts of fascinating people who came in and gave us that kind of information about technology. We had people from Daily Kos and red states sitting side by side and sharing their perspectives with us. We had tech nerds that came and I think it was -- it would be a fascinating hearing and it would I agree very informative to find out what the latest technology is. We might want to get our IT folks involved to help us prepare and understand what it is we're learning about, but, you know, you go back to the Target Wireless AO, before my time, that's how long ago it was -- I know! -- and one of the facts they talk about, if we have the disclaimer in a second message, people have to pay for an extra text message. Who pays by the text message anymore? Everything in technology has changed so much. And provides opportunities for us to help create a better informed electorate and provide the transparency that you're talking about that facilitates discussion online and through other fora. So, yes, let's -- by all means, let's do it. >> STEVEN WALTHER: All right. Further comment? Do we want to put this in front of some kind of a motion or have an understanding what we're going to do? Mr. Goodman. >> LEE GOODMAN: Mr. Chairman, I'll take my shot at a motion. I move the Commission reopen the public comment period in reg Number 2011-02 to invite public comment on the issues originally stated in reg 2011-02. Is that sufficient, Commissioner? For an additional period of 30 days. >> STEVEN WALTHER: Any further thoughts on that? Commissioner Weintraub? >> ELLEN WEINTRAUB: I will support the motion. I will -- I don't know whether this fits into the motion, but I -- it's my understanding that the Commission is making a commitment to consider holding a hearing once we get all those comments in. >> Yes, after I've read the comments and had an ability to analyze them and whether I think a hearing is justified, yes. We were there last year. >> ELLEN WEINTRAUB: We were >> LEE GOODMAN: I don't think the comments justified the hearing. Maybe this time the comments will justify the hearing. >> ELLEN WEINTRAUB: Okay. >> LEE GOODMAN: But we'll make the decision after we get the comments. >> STEVEN WALTHER: Further comments? Ready for a? All in favor. [ ayes ] Opposed? Motion passes unanimously. I don't think there's anything left on the agenda. I think we have done a good job to get there by 3:00 o'clock. And is there any matters no longer to an exemption? >> Management and administrative question, Mr. Chairman. >> STEVEN WALTHER: Administrative matters? >> Mr. Chairman, there are no such matters. >> STEVEN WALTHER: Thank you. Meeting is adjourned.