Democracy Dies in Darkness: Voters Have Right to Know Funders of Online Political Ads

BALTIMORE, MD, September 24, 2018 – The Washington Post, Baltimore Sun and other local newspapers have sued the state of Maryland to avoid complying with the state’s campaign finance disclosure law, a measure that allows Maryland citizens to easily obtain meaningful information about groups and individuals seeking to influence their vote through ads run on their publications’ online platforms.

Campaign Legal Center (CLC) and Common Cause Maryland filed a brief in the U.S. District Court for the District of Maryland, arguing that the state should be able to enforce its disclosure law, which ensures public access to information about the sources and financing of online political advertising. It will also help law enforcement root out foreign interference in the 2018 elections and beyond.

The newspapers have asked the court for a preliminary order, preventing enforcement of the disclosure requirements, and the presiding judge has set a November 16 briefing date to consider the request. The case is called Washington Post v. McManus.

“Democracy dies in darkness. That is why the institutions that play a critical role in shining a light in our democracy should be leading the way with transparency in political advertising on their platforms,” said Erin Chlopak, senior legal counsel, campaign finance, at CLC, and former acting associate general counsel at the Federal Election Commission (FEC). “It is unfortunate that newspapers whose reporters are dedicated to informing and educating the public about who spends money in elections are now taking the state of Maryland to court to avoid disclosing who is purchasing digital ads disseminated on their websites. Maryland has every right to promote an informed electorate and protect its citizens from foreign actors seeking to influence their votes.”

“Voters have a right to know who’s spending money to influence their decisions on Election Day. Newspapers selling website space to political advertisers have a responsibility to collect and share with the public information about these ad buyers. They shouldn’t be suing the state to keep voters in the dark,” said Karen Hobert Flynn, president at Common Cause.

CLC sent a letter to Maryland Governor Larry Hogan in April, urging him to support Maryland’s Online Electioneering Transparency and Accountability Act (OETA). It became law in May of this year. OETA informs state voters by strengthening the state’s disclosure and recordkeeping requirements. The law applies to a variety of online platforms that disseminate paid political ads, and actively promotes First Amendment interests by providing public access to information about the sources, financing and distribution of paid political advertising, enabling citizens to make informed choices in the political marketplace. By passing this, Maryland recognized the dramatic shift of political advertising to online media and sought to modernize its law by closing a loophole. This loophole allowed foreign actors to engage in secret online advertising and misinformation campaigns prior to the 2016 US elections.

Because the Federal Election Commission (FEC) and Congress failed to act, Maryland is one of several states that have enacted or considered new laws or rules for online political ads this year.