In 2006, nobody owned an iPhone. Most Americans got their news through television, print, or radio stations. Far fewer people had social media accounts, and Facebook users weren’t being served targeted ads or promotions from major brands. At the time, a Pew survey found that only 14% of cell phone owners used their devices to access the internet, and barely a third of them texted.

2006 was also the last year that the Federal Election Commission (FEC) substantially updated its digital advertising guidelines. In doing so, the commission amended its definition of “public communication” to include “internet communications placed on another’s website for a fee.” From that point forward, digital ads needed to include a disclaimer identifying the organization that paid for them, and, when applicable, whether a candidate had endorsed the message. With some exceptions, all types of “public communications” regulated by the FEC require such disclosures — these include television and radio advertisements, large signage, and printed materials.

While the 2006 rulemaking recognized the internet as a “unique and evolving mode of mass communication,” it didn’t successfully account for its eventual evolution. By thinking of internet ads as simply those “placed on another’s website for a fee,” the commissioners failed to predict how paid online political communications would evolve beyond a sort of digital classifieds section. Of course, the internet still provides ample opportunity to place an ad on someone else’s digital real estate, but the commissioners — likely because they didn’t see it happening very often in legacy media — failed to fully foresee the idea of digital promotion.

Imagine if you could pay to move existing newspaper articles from the second page to the front page of your local paper. Or if you could write a check to a popular op-ed columnist and have them extoll your candidate of choice. It’s possible that these exchanges did happen offline, but certainly not at the frequency (or visibility) that would lead the commissioners to believe that this would come to make up a significant portion of future online advertising. On social media, such forms of paid “boosting” are commonplace — and carry no disclaimers.

Finally, this year, the FEC has gotten around to updating its rules to accommodate these digital realities. After much deliberation and two rounds of public comment, the commissioners met in December to try and bring digital ad rules up to speed. The new rules are an undeniable improvement, expanding the definition of “public communication” to cover ads in devices, apps, streaming platforms, and so on. Unfortunately, a last-minute revision undercut some of this progress.

Two critical words were struck from the final version that the FEC voted to advance. The original draft rulecovered content that was placed “or promoted” for a fee. That distinction would have included the paid boosting of organic posts by political campaigns or Super PACs, as well as financial partnerships with influencers to create certain content. Just when it seemed like the FEC was about to correct its lack of imagination from more than a decade earlier, it backtracked — partially as a result of outside pressure.

Free speech organizations took issue with several parts of the new rule, bolstering the arguments of GOP commissioners that promotional disclaimers would “unduly burden” freedom of speech for campaigns and social media influencers — who are playing an increasingly large role in digital outreach. Trump-appointed Commissioner Sean Cooksey cited the FEC’s “internet exemption” in his criticism of the original draft, drawing on a 2002 rulemaking that described the internet as a “bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.”

The rulemaking Cooksey cited used a narrow interpretation of the Bipartisan Campaign Reform Act of 2002 (BCRA) which only applied disclaimers to political committee websites and large email campaigns; essentially, the “internet exemption” kept digital messages from being regulated as “public communications.” In 2004, that interpretation was overturned by Shays v. FEC, when the U.S. District Court for the District of Columbia ruled that Congress had intended BCRA to apply to all forms of political advertising. The concept of the “internet exemption” endures, however, and is still being used to argue that, because online communications are democratized and largely not subject to gatekeepers, they are therefore a special form of speech that has no need for the same disclosure rules as other political advertisements.

Disclosure rules exist for a reason. As influencer marketing becomes more and more popular, the lines between content and advertisement blur, and it is especially important that users are given indicators to distinguish between the two; a robust internet exemption would hinder that. Even run-of-the-mill content creators must follow Federal Trade Commission guidelines to make the appropriate disclosures and avoid violating advertising laws. But those rules apply to individuals promoting haircare products or yoga classes, not political messages.

In the closing days of the 2020 election, paid political influencers continued to operate on Meta and Alphabet’s platforms, despite these platforms implementing blanket pauses on new political ads. It’s risky for these companies to allow political advertisements in the final days of a campaign, as their automatic screening systems often fail to detect incitements to violence or harmful misinformation. Influencer advertising, however, is negotiated over email or private messages and can’t be as easily paused. Without disclaimers, paid political endorsements can masquerade as genuine content, which is especially dangerous coming from established influencers. The potential for astroturfing is immense, especially because the FEC’s final draft rule does not require disclaimers on promoted posts. A campaign or PAC could manufacture the appearance of widespread support for a candidate, and users would be none the wiser.

The FEC is at an inflection point. If GOP-appointed commissioners continue to use the “internet exemption” as their guiding star, the odds for proper digital disclaimers seem slim. However, rules for promoted content are now being considered as a separate item, which leaves the door open for future regulations. As campaigns expand their investments into political influencers and amplified content, it will be increasingly difficult for commissioners to justify any exemptions — and increasingly clear that the FEC has a role to play in the digital world.

It’s well-documented that many multi-level marketing companies (MLMs) operate suspiciously like illegal pyramid schemes. In fact, a report from the Consumer Awareness Institute found that 99% of MLM participants actually lose money. The report analyzed over 500 MLMs and concluded that their compensation plans are based on recruiting large downlines, where only those at the very top of the structure with the most recruits make any money.

If that sounds familiar, it’s because that’s exactly how pyramid schemes operate. The Federal Trade Commission (FTC) even acknowledges that some multi-level marketing companies (MLMs) are illegal pyramid schemes. The question then is: if the business models of many MLMs so closely resemble an illegal design, why does the FTC allow some of these companies to operate?

In the early 1970s, it looked as though the FTC was going to crack down hard on the industry. An important precedent was set when the agency brought a case against Koscot Interplanetary, alleging the cosmetics company to be an illegal pyramid scheme. The ruling in this case established the principle that compensation of participants in MLMs must depend on actual sales, not recruiting other participants (like in a pyramid scheme).

Although Koscot lost that case, it wasn’t long before MLMs got their break. The 1979 ruling of In re Amway Corp. determined that Amway was not a pyramid scheme (as strictly defined by law), and established safeguards for MLMs that provided a path for them operate within specific legal boundaries. These included a requirement that MLM participants must sell 70% of previously purchased products to 10 customers before placing a new order, and that companies must provide a buyback policy for unsold inventory.

Amway was permitted to continue so long as it adhered to these retail rules. While one might hope that these guidelines would prevent MLMs from returning to their pyramid scheme ways, the rules were left to be enforced by Amway itself, which means they were never sufficiently implemented and do little to stop other MLMs from following Amway’s dishonest lead.

Still, Amway has faced multiple lawsuits over its questionable business practices in the decades since, including a class-action lawsuit that resulted in a $56 million dollar settlement. While the initial lawsuit alleged Amway was a pyramid scheme, the final settlement was amended so that the phrase “pyramid scheme” was practically eliminated.

With this legal roadmap established, the FTC would now go after particularly egregious MLMs on a case-by-case basis. In the past 42 years, the FTC has filed 32 cases against MLMs for allegedly operating as illegal pyramid schemes. Specifically, the FTC accused the MLMs in these cases of violating Section 5 of the FTC Act prohibiting “unfair or deceptive acts or practices in or affecting commerce.” The cases all alleged false earning claims, and most included several counts falling under Section 5, including having an illegal recruitment-based compensation model, and perpetuating false efficacy claims of their products. In most cases, a settlement was reached that included a fine and an agreement not to violate the FTC Act again.

The FTC claims that this case-by-case analysis allows for an assessment of bad actors without directly affecting the entire industry or having unintended consequences from “one-size-fits-all industry standards.” Yet, according to the University of Pennsylvania Journal of Law and Social Change, between 1997 and 2005, the FTC received over 18,000 complaints against MLMs but brought only 20 cases. It is abundantly clear that the FTC’s hesitance to go after the MLM industry as a whole is protecting the companies themselves — not the consumers that the FTC is meant to protect.

Part of this hesitance can be explained by the tremendous political power that the MLM industry has built up through decades of lobbying. Amway has been a prominent political donor since the 1980s, becoming one of the biggest financial backers of the Republican party. In fact, in 1994, Amway made what was — at the time — the largest single corporate contribution ever recorded to a political party. Three years later, Republican House Speaker Newt Gingrich returned the favor by gifting Amway a $283 million tax break through a last-minute addition to that year’s tax bill.

Though, the political influence of MLMs is not only limited to Amway or to the political right. Herbalife, for instance, makes donations to both Republicans and Democrats. Although the company was eventually subject to its own FTC investigation, the inquiry didn’t come easy. A FOIA request revealed the FTC had received at least 188 complaints related to Herbalife, but only acted when publicly pressured by a wealthy businessman. Yet, like Amway, Herbalife was simply told to restructure their compensation plan to fit the parameters set by Koscot and Amway, and let go with a $200 million fine. It appears that like Amway, Herbalife negotiated away the words “pyramid scheme” from the final settlement.

Indeed, Herbalife had plenty of cash to go around. The company’s lobbying expenditures increased dramatically in the years preceding the investigation, from under $600,000 in 2012 to nearly $2 million by 2014 — the year the FTC formally announced its investigation. With a whopping $3.98 billion gross profit in 2014, the fine was a slap on the wrist for a company as wealthy as Herbalife. The FTC allowed Herbalife to go on its merry way without fundamentally restructuring its business model. It is possible that the company may stray from the clearly defined 1979 guardrails and face another multi-million dollar fine a few years down the road, but its army of lawyers will undoubtably do everything in their power to keep the company technically compliant. The Journal of Law and Social Change points out that high-powered MLM lawyers have become particularly adept at protecting their companies “on the basis that they disclosed their actions through hidden or generic disclaimers.”

Of course, not every MLM company can afford to hire an army of lobbyists and lawyers like Herbalife and Amway. Luckily for those lesser-resourced MLMs, the industry has the Direct Selling Association (DSA) as its lobbying arm. The DSA has made it a priority to protect the deceptive practices of MLMs from widespread scrutiny.

Perhaps the most profound impact of the DSA’s lobbying occurred with the successful weakening of the FTC’s Business Opportunity Rule. According to the aforementioned Consumer Awareness Institute report, the FTC proposed a Business Opportunity Rule in 2006 that would “require sellers of business opportunities to disclose average incomes, references, and other information crucial to a decision on whether or not to participate.” The DSA both lobbied Congress and encouraged MLM participants to appeal against the rule, resulting in 17,000 comments (largely following MLM company form letters) in opposition to the FTC’s planned action. In 2008, the agency yielded to DSA’s lobbying and introduced a Revised Rule that essentially exempted MLMs from such financial disclosure.

In 2011, the rule was officially adopted. While the FTC states that this rule does not entirely exempt MLMs — with investigations still being conducted on a case-by-case basis — the final rule hampered the FTC’s ability to investigate MLM companies for deceptive practices; the agency can only investigate after claims of false or deceptive practices are brought against a company. While the Business Opportunity Rule was originally crafted to allow consumers to assess the risks of business ventures, the FTC’s concession to the MLM industry legitimizes a business structure known for making false claims and made accountability possible only after participants have been financially harmed.

Since then, the DSA has only grown in political power — now even boasting its own congressional caucus. In 2017, some of its members pushed the controversial H.R. 3409: Anti-Pyramid Promotional Scheme Act. By its name, one might expect the bill to be pro-consumer protection in nature, but critics argued that it would actually let MLMs operate even more like pyramid schemes, allowing for purchases by participants to count as retail sales to consumers — with the participant being their own “consumer”. Thus, if the main legal distinction of MLMs from pyramid schemes relies on actual sales to retail consumers, forgoing this requirement and allowing participants to buy their own products is simply creating a compensation plan based on recruitment.

The bill was sponsored by 50 members of Congress — 18 of which were then part of the DSA’s caucus. Seven of the ten organizations registered to lobby on the bill were MLM companies — six of which are members of the DSA. The bill eventually died, but that certainly didn’t stop the DSA from continuing to fight for looser MLM regulations, broadly.

There are, however, some encouraging signs — with the FTC taking more action against MLMs in recent years. The COVID-19 pandemic saw an increase in MLM activity, and this flare-up has caught the agency’s attention. An attorney for the FTC explained that social media makes it difficult for the agency to determine whether distributors are making false claims, as most communication is done via private message on private accounts. In 2020, The FTC sent warnings to at least 16 MLMs regarding deceptive income and health claims related to the efficacy of their products against coronavirus. William Keep, a researcher who has studied multi-level marketing companies, describes the shift of FTC enforcement: “’20 years ago, the overwhelming emphasis was, ‘Is this a pyramid scheme?’ Now regulators are saying, ‘Whether this is a pyramid scheme or not, you can’t go out and say misleading things.’”

Yet, it still seems as though the entire MLM industry relies on deception. If an MLM tried to recruit under the basis that 99% of participants would lose money, nobody would fall victim to MLMs. The FTC has set precedents to control the industry, but does little to ensure these regulations are being met. In fact, rather than assert more control over the controversial industry, the FTC bowed to the power of its lobby in the case of the Business Opportunity Rule. In 2021, the FTC began reviewing this rule, with potential changes coming this year. Altering its exception for MLMs would aid in protecting consumers and allow the FTC to evaluate the claims of MLMs prior to infringement.

Further action is profoundly needed to control the powerful MLM industry. The FTC reportedly plans to ramp up its actions against MLMs. Whether or not such action comes to pass, it’s clear that the “safeguards” established in the Amway decision do little to protect consumers against MLM harm, and something stronger must be codified into law.

I will never forget the rush of unlocking the 99-rated J.J. Watt in Madden Mobile. The game — a mobile version of the popular Madden football video game series — was at the height of its popularity, and as a 13-year-old, nothing made me more excited than to see the work I had put into the game finally pay off. I returned to school the next day triumphant, ready to show the world the new player I had earned. Despite the strong temptations presented by the game to try my hand at buying a player pack, my eighth-grade budget did not allow for such splurges. My pride came not just from the card, but from knowing I had finally reached a long-awaited goal — without spending a dime.

Unlike its previous iterations, Madden Mobile is free to download, despite a wealth of features and gameplay modes. The central facet of the game, however, is to collect the League’s top players to build the best possible team. A person can build their team in one of two ways: by spending months completing challenges to gain more lucrative players (as I did), or by spending money in the game to unlock “packs” that have the chance of holding a rare player. These packs are how a game such as Madden Mobile profits — through microtransactions that seem inexpensive individually but can rapidly build up. FIFA, the immensely popular soccer video game franchise has the same model through its “Ultimate Team,” and MLB The Show has its “Diamond Dynasty.”

This form of gaming — in which gamers can gain a competitive advantage by choosing to purchase microtransactions — is known as “pay-to-win.” Like Madden Mobile, many of these pay-to-win games are free to download in order to get players hooked on the game’s dynamics before they are asked to pay for these performance enhancing perks. In sports games like FIFA Ultimate Team and Madden Mobile, these perks usually come in the form of player “packs” that offer the promise of gaining a mystery player that may or may not have a better rating than the ones already in your lineup. Yet, it is not solely sports games that have this system in place. In shooting games, players may try their luck to get new weapons, gear, or cosmetic flair. In the larger world of gaming, these are known as loot boxes.

Universal across all genres of games, these loot boxes give players a list of possible options for what they may contain, and after purchase, “randomly” unlock one of the options in the player’s account. However, the probability of unlocking each option is far from equal — more rare or valuable options will have a lower rate of discovery than more common items. Hence, despite costing real money, no individual loot box gives any level of security as to what it may contain. As a result, it can require unlocking a large number of loot boxes to finally obtain the item that a player desires.

It may seem as though there is no feeling quite like happening upon a rare item in a video game loot box, but this feeling has been around long before the advent of video games. This is because the mechanics of these loot boxes — one of the core components of pay-to-win video games — bear a striking resemblance to conventional gambling. At its core, the loot box is little more than an in-game slot machine — players are betting on probabilities stacked heavily against them with the hope that they will cash out with a desired item. Sadly, the similarities between loot boxes and gambling go beyond surface level emulation — engagement with loot boxes has been scientifically linked to an increase in problem gambling behavior.

A study published in Plos One, a peer-reviewed academic journal, found that there is a proven connection between the amount of money that players spend on loot boxes and the extent of their problem gambling behavior. By conducting a survey of 7,422 gamers, the study concluded “that there was a statistically significant effect of problem gambling on loot box spending,” with p<0.001, η2 = 0.054. A p-value is a statistical measurement used to validate a hypothesis against observed data. Generally, a p value of less than 0.05 is considered statistically significant in a study, so the result of p<0.001 fits this. Eta squared, or η2, is a statistical measurement that measures the effect size of variables, with the general rule of thumb being: 0.01 = small effect size, 0.06 = medium effect size, and 0.14 or higher = large effect size. The larger the effect size, the more statistically significant a variable is to the conclusion of the study.

The study goes on to observe that “the relationship observed here is stronger than [the] relationship between problem gambling and several common risk factors…it is stronger than the relationship between problem gambling and depression…and major drug problems. It is comparable in strength to the relationship between problem gambling and current alcohol dependence.” While these results are all significant to conclude that there is a damaging effect that comes with loot boxes, the problem becomes even worse when the focus is narrowed to examine adolescent gamers.

A 2019 study from The Royal Society analyzed adolescent gamers and found that the correlation between loot box spending and problem gambling was actually higher in this population than in adults. Through a survey of 1,155 adolescents, the researchers concluded that there was “a significant positive correlation between loot box spending and problem gambling,” with p < 0.001 and η2 = 0.120. Recalling the rule of thumb, this means that loot box spending has a medium to large effect on problem gambling behavior in adolescents.

For a population that both legally and morally should not be so easily exposed to a gambling mechanic that masquerades as an important function in a game, these results — given the preponderance of loot boxes in popular video games — are highly concerning. As the study concludes, “when video game companies allow adolescents to buy loot boxes, they are potentially exposing them to negative consequences… It may be the case that loot boxes allow games companies to monetize problem gambling in these vulnerable populations for 11-digit annual profits. We believe that both relationships may potentially lead to serious adverse consequences for younger gamers.”

Available data clearly illustrates that gaming companies stake a large portion of their revenue on this exploitative system. Loot boxes accounted for $15 billion in revenue in 2020, and in 2021, EA reported $1.6 billion in earnings from “extra content sales” in its Ultimate Team game modes alone. Activision Blizzard, creator of the highly popular World of Warcraft and Overwatch franchises, reported that 61% of its revenue in 2021 was earned via microtransactions.

There is no sign of this structure going away. This summer, Blizzard released Diablo Immortal, the latest installment in its Diablo series. Unlike previous games in the series, this newest version is available on mobile — bringing with it all of the tenants of a mobile pay-to-win game. It has been projected that a Diablo Immortal player must spend approximately $110,000 to fully max out their character’s power — which is one of the primary objectives of the game. Another report found that it would take a FIFA Ultimate Team player three years of continuous play to earn enough points to have a guaranteed shot at getting the best player without paying — a sharp increase in the pay-to-win mechanic from my Madden Mobile days.

The Entertainment Software Rating Board, the governing body which assigns ratings to video games, has stated that loot boxes do not constitute gambling, comparing them to opening a pack of baseball cards. This oversimplification fails to reconcile with the reality that loot boxes are a predatory practice targeting all age groups — with children being the most vulnerable. With large gaming companies appearing more than comfortable to profit off the impulses and desires of the youngest generation of gamers, it will likely fall on legislators to act and pare back the proliferation of loot boxes. Classifying loot boxes as a form of gambling would be a major first step in this fight and could allow the next generation of kids to experience games as I did — with the pure, untainted joy of games that have goals which can be met through merit and entertaining gameplay, instead of excessive and potentially addictive and harmful spending.

In 2021, AG Merrick Garland announced that the Department of Justice will no longer seize journalists’ records — however, there is still a need to codify his promise into a law for succeeding administrations.

In previous administrations, press freedom advocates witnessed flippant degradations of the fourth estate’s independence. Under the Obama administration, the Justice Department seized all records for 20 Associated Press telephone lines and switchboards for two months in 2012. The Trump administration went on a subpoena spree, serving subpoenas to three major news organizations in summer of 2021.

Given the bipartisan nature of federal subpoenas on journalists, there is no reason to believe future administrations will behave any differently.

Since 2005, Congress has regularly introduced the Free Flow of Information Act, with no success. The law, commonly referred to as a “shield law,” would protect journalists from arbitrary compelled disclosures in federal investigations. In 2021, Senator Ron Wyden introduced the “Protect Reporters from Excessive State Suppression Act” or PRESS Act. The bill never even left committee.

Opponents of this legislation may argue that press freedom is less important than successful criminal investigations or preserving national security. However, subpoenas on journalists threaten their credibility with confidential sources and whistleblowers, both crucial to accountability reporting.

Congress must pass a law that will narrow the circumstances under which the U.S. Attorney General (AG) may authorize subpoenas on journalists.

The current guidelines for the AG’s authorization of subpoenas on journalists are not sufficiently narrow or burdensome on federal prosecutors to safeguard the press from arbitrary compelled disclosures.

If not for whistleblowers or confidential sources, many important stories would remain unknown to the public, including the Pentagon Papers and Watergate tapes. Under the guise of national security interests, prosecuting whistleblowers and subpoenaing journalists is an attempt to discourage citizens from speaking truth to power. If the subpoenaing of journalists were a rare practice, this dampening effect on the willingness of confidential sources to contact journalists with information may be an overblown concern; unfortunately, it is not.

The U.S. Press Freedom Tracker, an archive of press freedom violations, reported that since 2017, at least 124 journalists were subpoenaed for records related to their reporting, and it is only getting more frequent. The Reporters Committee for the Freedom of the Press noted that 2020 was the third consecutive year of increases in subpoenas on journalists.

Under the current regulations, federal prosecutors are not required to demonstrate to a court that the journalist possesses information relevant to a probable violation of law or that there is a compelling national interest in the disclosure of information that overrides press freedom interests. The code provides a set of principles that the AG should follow prior to the authorization of a subpoena, although these principles are not compulsory.

The principles state that subpoenas should only be used when the information sought is considered essential to a successful investigation, attempts have been made to obtain the information from alternative sources, negotiations with the journalist have been pursued, and appropriate notice has been provided.

49 states have some form of a shield law in place as protection for journalists who are subpoenaed. Subpoenas in state investigations are not uncommon. In January, a North Dakota judge signed off on a search warrant for a reporter’s phone records in a police investigation. Currently, reporters in North Dakota are not protected by a shield law.

Maryland’s shield law is generally touted as one of the best in the country, including protections for student journalists in addition to professional journalists. Maryland’s law employs a similar test as the Code of Federal Regulations, but burdens parties seeking information from journalists with providing clear and convincing evidence to a court. While these laws provide robust protection to journalists within the walls of the state courthouse, they do not protect against federal overreach.

Therefore, a federal law modeled after Maryland’s standards is necessary to sufficiently protect journalists from unwarranted subpoenas.

Open records laws are written with the expressed intention to make the government more accountable to the people it serves. Through open records laws, concerned citizens can make requests to see anything in the public record, from a public official’s emails to how much the city spends on water treatment.

Open records give the public a window into the day-to-day activities of elected officials and sends them a clear message that they can be held accountable for their wrongdoing. However, the opaqueness of this window varies depending on where you live, as each state has its own open records law with its own set of exceptions.

Exceptions may list documents that might reasonably be withheld from the public such as medical records or communications protected by attorney-client privilege. Yet, some exceptions withhold information from the public for no compelling reason and only serve to limit public oversight.

In Georgia, members of the state legislature and offices housed therein, like the state reapportionment office, are immune to open records requests. Essentially, the window into their activities is covered by a black-out curtain and iron bars. What this means for Georgians is that their legislators have unbridled freedom for all manner of legislative skullduggery with no expectation of public scrutiny.

If nobody checked in on you at work, what is to stop you from playing candy crush for seven hours straight? Or more specific to legislators; ignoring constituent complaints.

The irony of Georgia’s open records law is that the legislators who wrote the law recognized the need for transparency among public officials but were willing to exempt themselves from that group.

In Virginia, legislators are willing to admit they are accountable to the people but only if those people are citizens of Virginia. Virginia’s open records law specifies that, “all public records shall be open to citizens of the Commonwealth.” Virginia renders out-of-state commuters incapable of asking for transparency from the Virginia government. These state-citizen-only clauses also create a problem for journalists and researchers seeking to report on Virginia from another state. In fact, matters of Virginia impact residents of the entire Beltway. CfA, as a DC-based institution, cannot submit records requests to Virginia unless we have staff based out of Virginia.

Some open records laws go even further to exclude certain groups from government accountability. Michigan’s open records law exempts people serving time in prison for a felony charge from receiving public records. But what does this exemption serve to prevent other than an estimated 33,000 people from keeping the state accountable? The law does not inhibit people outside of prison from requesting and receiving open records requests on someone else’s behalf. Therefore, the exemption is effectively useless and unnecessarily burdensome.

The ineffectiveness of other open records laws stems from poor writing and a lack of well-defined terms. Alabama’s open records law, a consistent recipient of failing grades from organizations like the National Freedom of Information Coalition and Better Government Association, is one such example.

The statute, which is five sentences in total, has no established time requirements for public officers to surrender records. Without a definite timeline, records custodians can de facto deny records requests by letting enough time elapse for the requestor to either give up or forget. The law is also silent on the appropriate amount of fees to charge for a records request, allowing agencies to render their records unreachable to low-budget requestors by charging exorbitant fees per page.

Indeed, not all public records laws are created equal. Some states have done an admirable job in implementing open records laws that uphold the principles of transparency.

Washington’s public records law specifically prohibits agencies from charging requestors fees for locating and preparing public records for inspection. This portion of the law substantially limits the ability of records custodians to overcharge for records.

In Louisiana, it is required by law that public records requestors receive a response to their request within three days. Additionally, unlike Wisconsin and West Virginia, Louisiana’s open records law does not place restrictions on how information found in records requests may be used.

As these states demonstrate, it is possible to create public records laws that support the public in their quest to appropriately scrutinize the government. In order for our democracy to function, the government must write laws that welcome this scrutiny.

Campaign for Accountability is a nonpartisan, nonprofit watchdog organization that uses research, litigation, and aggressive communications to expose misconduct and malfeasance in public life and hold those who act at the expense of the public good accountable for their actions.

As April approaches, the IRS has warned taxpayers that current staffing shortages and backlogs will translate to “another frustrating filing season,” as there is currently only one IRS staffer available for every 16,000 incoming calls. This frustrating inaccessibility to information is also felt by watchdogs like CfA who rely on IRS databases to access up-to-date filing information on the thousands of politically engaged non-profit organizations around the country.

As of February 2022, the IRS still has not uploaded many organizations’ 2020 Form 990 filings, which contain a wealth of information on these organizations’ donors, revenue, and grantees. These forms are crucial for understanding and unravelling the complex flow of money that goes between organizations, how executives are paid, and what consultants are reaping in paydays. The information backlog is particularly notable considering the delayed period covers the height of spending leading up to the 2020 election.

This current crisis is not only a consequence of Covid. Although this backlog is far higher than what the IRS typically faced before the pandemic, the agency’s struggle to keep up is nothing new. While the number of individual tax returns increased by 19 percent since 2010, IRS staffing is down 17 percent. To alleviate this strain, the Biden administration proposed an additional $80 billion over a decade for the IRS to increase its staff, technology, enforcement, and efficiency.

In addition to harming transparency, the lack of IRS funding and subsequent staffing shortage has allowed rampant tax avoidance, which costs the nation far more than the suggested budget increase. In 2017, the IRS had only 9,510 auditors, the lowest levels since 1953 when the economy was a seventh of its current size. Moreover, while the number of millionaires has nearly doubled since 2012, tax audits have dropped by 72% as of 2020. The lack of auditing disproportionately benefits businesses, as they are more likely to misrepresent their income. The IRS estimates that 56 percent of sole proprietors misrepresent their income compared to just one percent of taxpayers that receive wages and salaries, most of whom have employers that withhold income and payroll taxes. An increase in funding will allow the IRS to hire more auditors at competitive salaries and conduct more audits to crackdown on tax evasion by high-earners and large corporations.

Moreover, a staffing increase would increase the overall efficiency of the IRS. Currently, over 75% of calls never get through to an IRS employee. This leads frustrated taxpayers to take their best guess, which leads to fines and more work on the IRS’ part to identify and correct these errors. Increased funding would enable the IRS to finally invest in the required technologies and personnel to implement their plans to set up call-back technology and online assistance. This decreases the amount of confusion over tax filing, enabling the IRS to operate more efficiently and dedicate more time to auditing high-income tax evaders. It’s important in any discussion of IRS funding to understand that, according to studies, an $80 billion increase in funding over 10 years would net an additional 700 billion in tax revenue over the next decade.

The IRS has ambitious plans to modernize and increase its capabilities. Unfortunately, until it receives its much-needed investment so that it can update its technology and expand its staff, the IRS will remain unable to hold tax dodgers accountable, and provide accessible up-to-date filing information that serves as a critical tool for downstream accountability efforts.

Campaign for Accountability is a nonpartisan, nonprofit watchdog organization that uses research, litigation, and aggressive communications to expose misconduct and malfeasance in public life and hold those who act at the expense of the public good accountable for their actions.

Last week, Facebook announced that it would be changing its policy to ban advertisers from targeting minors based on interest categories. Going forward, advertisers will only be able to target underage users based on their age, gender, and location. This followed criticism from advocacy groups, including CfA’s Tech Transparency Project (TTP), which published research showing that advertisers were able to target thousands of teens in countries around the world that Facebook had determined were interested in ‘alcoholic beverages’ and ‘smoking.’

It appears Facebook determined it would be an easier fix to eliminate interest-based advertising for teens altogether rather than determine why so many were tagged with age-inappropriate categories in the first place. Regardless, it was an obvious problem that needed to be fixed.

Yet, while this change marginally increases the protection of minors from harmful, targeted advertisements, it exposes the broader issue of the risks that similar ads pose to the rest of us. What about the countless adults struggling to break away from addictive vices like alcohol, smoking and gambling, whose internet searches allow Facebook to serve them up on a silver platter to advertisers wanting to draw them back in?

The harms of surveillance advertising go far beyond addiction. It has also fueled political divisiveness, which, arguably, has become one of the gravest societal ills. In the “old days,” political ads were shown mostly to broad television audiences, requiring at least a partial appeal to the middle. Attack ads were certainly common, but to be effective they generally were grounded in some sort of commonly accepted truth. Now, ads can be micro-targeted to vetted partisans who are ready to wholeheartedly accept vitriolic lies about their perceived political enemies. Last May, Congresswoman Anna Eshoo (CA-18) introduced the Banning Microtargeted Political Ads Act to address this growing malice.

The problems with surveillance advertising don’t stop there. The practice can also be used to promote pseudoscience, enable discrimination, and fuel violent extremism. While the general public may not be aware of these clear harms, the fact is, most people are uncomfortable with the way that Facebook and Google make their money. A 2019 Pew Research poll found that 79% of Americans are concerned about how companies use the data they collect on them, and 81% said that the potential risks of having data collected on them outweigh the benefits.

In an attempt to mitigate this discomfort, Big Tech has launched numerous PR campaigns to convince the American people that our uneasiness is a necessity of living in a prosperous society. Tech companies do this by framing Big Tech regulation as harmful to small businesses. This strategy seems to be a direct response to public sentiment. A 2020 survey revealed that 75% of Americans have “a great deal” or “quite a lot” of confidence in small businesses, with only 19% expressing that degree of confidence in big businesses. Put simply, while most Americans couldn’t care less about a dip in Facebook’s stock price, they maintain strong empathy for mom-and-pop businesses at risk of financial hardship.

While it’s true that thousands of small businesses use surveillance advertising to maintain a competitive edge, the framing of tech reform as a small business killer is disingenuous. Take for example, the case of Missouri-based Morgan Miller Plumbing, which TTP highlighted in a recent report about Big Tech’s use of small businesses as a PR front. The local plumbing company — whose CEO sits of the board of the Big Tech funded Connected Commerce Council — appeared in campaigns from both Facebook and Google, arguing that surveillance advertisements are crucial to small business success.

It’s likely true that Morgan Miller Plumbing’s efficient use of surveillance advertising gives them an edge over their local competitors, but it certainly doesn’t mean that the practice is helping the small business plumbing community as a whole. Every customer gained through surveillance advertising is one that a competing plumber loses.

This is by no means an indictment of any individual small business that engages in surveillance advertising. It is undoubtably effective, and choosing to take an ethical stand against it risks falling behind competitors who do not. But there are other options. Businesses can purchase contextual advertisements on platforms like Yelp to place their listing at the top of results when customers are searching for a specific service or product. It’s perfectly reasonable to ask businesses to meet the consumer where they are instead of following them everywhere they go.

Last year, TTP joined a coalition of advocates in calling for an end to surveillance advertising altogether. It may seem like a hefty task to dismantle the practice that serves as the fundamental business model for some of the world’s largest tech companies, but the current harms are too great not to try. It’s important to remember that surveillance advertising is only the status quo because Big Tech made it that way. Businesses succeeded long before surveillance advertising, and they will continue to succeed when the practice is ended.

The Federal Election Commission (FEC) is the independent federal regulatory agency that holds the all-important responsibility of enforcing campaign finance laws. Because of its inherently partisan structure, however, the FEC is failing utterly to meet its mission.

The FEC is composed of six commissioners, all appointed by the president, and Senate confirmed. To carry out most of its regulatory duties, the FEC needs an affirmative vote of approval from its commissioners. Four votes are required before the FEC takes action, so if the six commissioners split a vote in a 3–3 deadlock, the FEC does nothing and closes the case.

Because Congress anticipated that the FEC could be levied as a partisan weapon, the law that established the FEC decreed that no more than three commissioners could belong to the same political party. While this prevents one of the parties from taking control of the FEC and using it to attack its political adversaries, it creates a different problem — partisan deadlock that prevents the FEC from effectively enforcing campaign finance law. This has only gotten worse over time; from 1975 to 2007, the commission deadlocked on 4.9 percent of all votes, but from 2008 to 2018, that number shot up to 24.1 percent. In 2019 and 2020, the FEC even lacked a quorum of the four commissioners needed for the agency to operate, because then-President Trump failed to nominate replacements after several commissioners had resigned or retired. In short, the partisan nature of the FEC has crippled its regulatory power, sometimes rendering campaign finance laws virtually unenforceable.

Campaign for Accountability (CfA), as a public interest watchdog group, has had first-hand experience with the unfortunate realities of the FEC’s inability to act. In 2016, for instance, CfA filed an FEC complaint against unsuccessful New York Congressional candidate Andrew Heaney, alleging that his campaign illegally coordinated with New York Jobs Council, a super PAC that Heaney seemed to have created. The facts of the case were straightforward — three companies owned by Heaney donated tens of thousands of dollars to New York Jobs Council, and the Federal Election Campaigns Act prohibits candidates from coordinating with their Super PACs or transferring their own money to them. Since Heaney almost certainly directed his companies to donate to their owner’s super PAC, he appeared to be in clear violation of campaign finance law.

It took over three years for Campaign for Accountability to receive a response from the FEC, and the outcome was predictable — the FEC was deadlocked on whether Heaney broke federal law, despite the unambiguous nature of the facts presented. As a result of the “equally divided” commissioner vote, the FEC closed the case, allowing probable campaign finance violations to go unpunished.

Just last week, CfA filed an FEC complaint against the National Rifle Association, alleging that the organization had possibly violated campaign finance law by soliciting and accepting donations from foreign entities. This is not the first such complaint against the NRA. A 2018 complaint alleged that Alexander Torshin, a deputy governor of the Central Bank of Russia, funneled money to Donald Trump’s 2016 presidential campaign via the NRA, while a second complaint alleged that the Trump campaign knowingly used foreign donations run through the NRA. The FEC ultimately deadlocked on both complaints, turning what should have been a simple matter of enforcing campaign finance laws into a partisan issue. This time, CfA hopes that the commission will reconsider its stance, fairly consider the new evidence and base a decision on the facts, not political or ideological considerations.

Ultimately, enforcement of campaign finance laws is crucial to maintaining the fairness of our political system. It is unfortunate that the current state of the FEC has created, as prominent campaign finance lawyer Robert Kelner puts it, “an environment in which there has been virtually no enforcement of the campaign finance laws.” At a time when political polarization, partisan infighting, and eroding democratic norms have weakened public trust in the political process, it is more important than ever for Congress to pass legislation addressing the dysfunction, and turn the FEC into the effective, apolitical regulator of campaign finance that it was meant to — and needs to — be.

If you don’t watch certain news, it may seem like “critical race theory” became a cultural flashpoint seemingly out of nowhere. Pundits on cable news have railed against critical race theory as “neo-Marxist rhetoric,” “mandatory indoctrination,” and “a disease born from the hateful halls of left-wing academia.” In state legislatures around the country, lawmakers introduced bills implicitly or explicitly banning the teaching of critical race theory in public schools, with those bills becoming law in six states (and counting). In Republican-led states, state boards of education have enacted various policies aimed at restricting teachers from covering critical race theory or other topics surrounding racism and sexism, as seen with an amendment passed by the Florida State Board of Education in June that apparently equates critical race theory with Holocaust denial.

Those who get most of their information from Fox News or other conservative outlets may hold some strong opinions about critical race theory. But just what is critical race theory, and why have so many people been talking about it?

Critical race theory, in short, is an academic movement that posits that racism is a social construct that is reinforced by laws and public policy. Originating from the work of a small group of legal scholars in the 1970s and 1980s, it has been around for decades in academia as a theoretical framework used to understand how racial inequality and racist structures remained in the United States despite the efforts of the Civil Rights Movement. Social scientists and other academics have long unremarkably used critical race theory to explain the persistence of racial inequality in American society. Over the past year, however, critical race theory has evolved to become a focal talking point of the American right, who levy the term as a weapon to derail discussions about race and tap into the animosity of the raging culture war between liberals and conservatives.

Much of the recent controversy stems from the work of activist Chris Rufo, who first earned himself a name in conservative circles in 2020 by going after the city of Seattle’s implicit bias trainings, which he claimed endorsed “principles of segregationism, group-based guilt, and race essentialism.” Riding off his newfound publicity, Rufo started a new project taking aim at diversity trainings within the federal government. He began soliciting tips from federal employees who participated in those workplace-mandated trainings, and from the various pieces of evidence that he gathered, Rufo noticed that many of them cited a select group of scholars who studied racial inequality in the United States and called their work “critical race theory.” With this information, Rufo saw an opportunity to push an elaborate argument — that critical race theory was an un-American plot to erode the country from within.

On September 2, 2020, Rufo appeared on Tucker Carlson Tonight on Fox News. “Critical race theory,” he declared to Fox News’ primetime audience, “has pervaded every aspect of the federal government…. Conservatives need to wake up. This is an existential threat to the United States, and the bureaucracy — even under Trump — is being weaponized against American values.” That night, millions of Americans were first exposed to the idea of critical race theory and were told to think of it as an existential threat to their country and their way of life.

One of those Americans was Donald Trump. He heeded Rufo’s call to action — two days later he issued an executive order banning the federal government from conducting all employee diversity trainings based on critical race theory or “white privilege.” His order went on to state, “the divisive, false, and demeaning propaganda of the critical race theory movement is contrary to all we stand for as Americans and should have no place in the Federal government.” During that month, Trump relentlessly pushed the issue of critical race theory as a political weapon, using it to fire up his conservative base in time for upcoming presidential election. Over a span of six days in September, Trump retweeted posts from right-wing personalities about critical race theory 14 times; his account had never mentioned the term before that month. Following Trump’s lead, conservative media pounced on its new target, with various conservative personalities from Breitbart, Fox News, and other right-wing outlets decrying critical race theory as the left’s newest attempt to destroy America. A perfect villain for the conservative movement was born.

It’s important to note that much of the outrage surrounding critical race theory is not organic, but rather manufactured and weaponized as a deliberate political tool. At a time when the nation is undergoing a racial reckoning, pundits and politicians see an opportunity to throw around the term “critical race theory” to distract and detract from real discussions about race. Chris Rufo has admitted as much: in a tweet thread from last March, he boasted that this deliberate strategy to craft a political weapon had paid off. He tweeted, “we have successfully frozen their brand — “critical race theory” — into the public conversation and are steadily driving up negative perceptions… the goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’”

Today, conservatives have fully embraced the strategy of using “critical race theory” as an election-winning tool. As Rufo conveniently explained, the ultimate aim of the anti-critical race theory movement is to drive up the issue’s salience with the American public, because conservatives believe that it will help them politically in the future. It’s why conservative activists and politicians have appeared on Fox News to whip up fear about critical race theory in their conservative base and why public officials from across the country have gone through such an effort to ban critical race theory in public schools.

The recent uproar over critical race theory is nothing more than a political trick, and every second spent talking about critical race theory, and not about racism, is a win for those seeking to distract from the real issues at hand.

Campaign for Accountability is a nonpartisan, nonprofit watchdog organization that uses research, litigation, and aggressive communications to expose misconduct and malfeasance in public life and hold those who act at the expense of the public good accountable for their actions.

By Nathaniel Hylton

Earlier this month, Sinclair Broadcast Group was thrilled to share with the world that the telecommunications company, after decades of growth, had finally made its way into the coveted Fortune 500 list. What Sinclair’s self-congratulatory press release failed to mention was that this rise to the top was achieved on the backs of struggling local news outlets across the country.

Local news is being destroyed. Over the past decade, media consolidation has significantly decreased the number of news outlets operating across the United States. Since 2004, over 2,000 newspapers have closed for good. Consequently, the majority of counties are now served at most by a single newspaper. The lack of local news coverage reflects a troubling trend of the nationalization and consolidation of news, and it’s not just happening to print media.

It’s been reported that just five companies now own nearly 40% of broadcast TV stations nationwide. The largest amongst these is Sinclair, which owns 193 stations across 89 markets, allowing it to reach 39% of American viewers each day. When media companies get acquired by larger entities, it’s only natural for some programming restructuring to occur; but when Sinclair gobbles up local stations, the news they report tends to get considerably less local. After the conservative broadcast group purchased 14 local television stations, researchers found a 25 percent drop in local news coverage.

These acquisitions also promote homogeneity in reporting, which the nation saw firsthand in April of 2018, when a clip of local news anchors all reading the same news script word for word went viral. After the local news anchors introduced themselves and stated their devotion to reporting stories about their respective communities, they all continued on to say they were “concerned about the troubling trend of irresponsible, one-sided news stories plaguing our country,” seemingly unaware that they were currently a part of one. The anchors furthered that media outlets publish “fake stories” that “just aren’t true, without checking facts first,” and that people use the media and their “platforms to push their own personal bias[es] and agenda[s],” again, not acknowledging the fact that their own platforms were, at that very moment, being used to push Sinclair’s.

Source: Deadspin.com

People watching from home in their respective news markets likely didn’t know that Sinclair required these local news reporters to read these scripts as part of a larger message to viewers that other, liberal news outlets were controlling what people think. The fact that this particular script about the dangers of mass manipulation was the one chosen to expose forced homogeneity among Sinclair stations was the height of irony, but it ultimately did nothing to lessen the corporation’s influence. Sinclair’s centralization of a singular viewpoint combined with the continuing obligation of its local subsidiaries to repeat and promote those messages with no room for dissent is beyond worrisome.

Sinclair has long produced these “must-run” segments for its local stations, dispersing them to its various subsidiaries and requiring the local stations to run controversial, typically conservative commentary promos alongside their regular news coverage. These mandatory segments included a 2016 package stating that voters shouldn’t support Hillary Clinton because the Democratic Party was historically pro-slavery, and exclusive interviews with Donald Trump after Jared Kushner struck a deal with Sinclair.

Sinclair’s messages are not just politically slanted, but highly targeted as well. It now owns more local news stations in electoral swing states than any other company. The company’s executive chairman, David D. Smith, even met with Donald Trump during his 2016 campaign, reportedly telling him that “we are here to deliver your message. Period.” Without disclosing the company’s biases and power to direct programming, Sinclair should not have such a strong, direct influence over local news messaging. Given their direct, scripted, partisan messaging, it should come as no surprise that in the 2016 election, voters in areas with a high average concentration of Sinclair stations chose Donald Trump over Hillary Clinton by an average of 19 points.

Sinclair’s takeover of local news stations has not only accelerated the downfall of local news, it has also created a right wing echo chamber among media outlets. In a 2017 analysis of local news coverage of 743 stations nationwide over a nine-month period, researchers found that local stations showed a rightward political shift after Sinclair acquired them. The conclusion was based on an analysis of the language used in national news segments that aired on these local stations nationwide.

But why is the downfall of local news coverage so troubling? Notably, the weakening of true local journalism can lead to more corruption. There are far too many municipalities across the country for even the largest national news outlet to keep an eye on, so it falls to local news outlets to serve as monitoring agents that can keep their local officials accountable. Investigative reporters employed by local stations often expose mismanaged projects, act as government watchdogs, and provide the type of homegrown transparency that outside reporters simply cannot. Ultimately, independent local news coverage is a necessity for keeping local officials and businesses accountable.

Moreover, the replacement of local news with political messaging means that frayed communities are kept in the dark without access to crucial information about where they live. The absence of local, non-political TV news is especially devastating, considering a 2016 Pew Research study found that tuning into their local TV station remains the most common way for people to get news. In order to ensure that the public maintains access to accurate, localized information, these local stations must see their independence restored.

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Campaign for Accountability is a nonpartisan, nonprofit watchdog organization that uses research, litigation, and aggressive communications to expose misconduct and malfeasance in public life and hold those who act at the expense of the public good accountable for their actions.