Adav Noti

This isn’t an NPRM! An NPRM describes planned agency action for public comment. The FEC's document doesn't say what the FEC plans to do, just what the Dem and Repub Commrs each (separately) want to do.

It’s two opposing & incompatible proposals under one cover: The rarely seen CNSPRMP (Combined Notice of Separate Partisan Rule Making Preferences).

Next, there’s basically zero empirical evidence presented to support any of the rules being proposed by either side. That’s a problem because agencies are prohibited from making laws without evidence. They can be sued for doing that.

Minor but representative example: The Dem version wants disclaimers to be in black text on a white background. Why? No evidence is given that black on white is better than, say, white on black -- which is what California requires. Or fuchsia on navy. Or whatever.

More important example: The Repub version proposes a rule for certain ads and then says, I kid you not, “Do such ads exist?” (p.55) So the NPRM is proposing a national regulation for specific activity -- activity the FEC admits it has literally no evidence about.

Some parts seem to have popped out of a pre-smartphone time warp. The doc continues a decade-long FEC fascination with “rollover” text. You know, the box that used to come up when you used a mouse in IE6? Leave it to the FEC to get around to ruling on desktop browsers in 2018.

One bad substantive problem: Both proposals would allow an advertiser to force you to visit the advertiser’s website to get the full identifying info to which you’re entitled by law.

You’d have to go to their website, be subjected to whatever more ads & solicitations they want to throw at you, and scroll down to the bottom of the page to get the disclaimer – the one that the statute says must be included on the original ad.

(For a much better approach to this, see the bipartisan Honest Ads Act, page 14, lines 1-6: https://www.congress.gov/115/bills/s1989/BILLS-115s1989is.pdf ….)

Finally, the worst part: Neither version does the one thing that this rulemaking was supposedly going to do, which is explain whether digital advertisers get to use FEC-created disclaimer exceptions. We’ve been waiting for that answer for 15 years.

The Dem version gives a modified exception in one specific situation and is oddly silent about all others. The Repub version says the exceptions don’t apply, but then replaces them with a new exception that’s functionally identical. Frustratingly, neither resolves the question.