Trump’s midterms ad is racist, but there’s a bigger problem with it

Jason Mojica
Nov 3, 2018 · 5 min read

I woke up the other day full of piss and vinegar, excited to file a complaint with the FEC over the now-infamous ad that Donald Trump Tweeted out on Halloween. You know the one.

While there are no shortage of issues with the content of the ad, the thing that I honed in on was the lack of a disclaimer stating who authorized and paid for it. Now, clearly President Trump stands behind the content of the ad–that’s not in question. But a CNN report has White House sources confirming to Jim Acosta that the ad was made for Trump’s campaign, and that makes it different than if it was some fan video he simply picked up and reposted: it becomes subject to federal election law.

The FEC requires candidates and committees to include disclaimers on their ads, telling American voters where the message is coming from and who coughed up the dough to produce and distribute it. Makes sense, right? They spell out what needs to be stated aloud and by whom, as well as what additional information must appear in print, how big it needs to be, and how long it must appear on screen. Over at IXNAY PAC we’re forever sweating these details to make sure that we’re in compliance with the law, so the absence of this disclaimer stood out like a sore thumb to us.

Example of an IXNAY PAC ad with FEC-required disclaimer

In the grand scheme of Donald Trump’s offenses, his failing to have included a 4-second on-screen message stating who paid for the fear-mongering ad that he personally distributed is quite minor. But since IXNAY PAC’s mission is to get Donald Trump and his allies out of American politics, we’re happy to take a “death of a thousand cuts” approach to eroding Trump’s power. Besides, we figured, if a little organization like ours has to adhere to these regulations, so should the president!

But as we started writing up our complaint about how Donald J. Trump and his campaign had violated the Federal Election Campaign Act of 1971, we realized that, at least from our initial reading of the law… they hadn’t! While we initially thought we had caught them failing to jump through some hoops, it turns out that what they had actually done was pass through a giant, gaping loophole in FEC regulations.

Donald Trump published this video and accompanying inducement to vote Republican on a third-party internet platform to an audience of millions, but the FEC doesn’t consider it a “public communication.”

The FEC’s requirement that all public communications made by a committee must carry a disclaimer is quite specific about what constitutes “public communication.” In the FEC’s book, public communication is defined as “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” We figured that surely Trump disseminating a commercial via the internet would fall into that “other form of general public political advertising” catch-all, but we were wrong. The letter of the law says that this last category “shall not include communications over the Internet, except for communications placed for a fee on another person’s Web site.”

So just to be clear: the Trump campaign can create an advertisement that the President of the United States disseminates to millions of people via a medium that is more prominent in the lives of Americans than television, radio, or newspapers and it is somehow not considered “public communication” by the FEC.

Alright.

What this also means is that a group other than the President’s campaign could produce commercials for the president (or other political candidates) to distribute on social media without having to disclose to the American people who paid for them.

Just to double check that I wasn’t mistaken in my reading of the regulations, I rang up the information division of the FEC and, on behalf of IXNAY PAC, asked if we could indeed create and publish video advertising online without the same disclaimer that would be required if we ran them on TV. The FEC staffer confirmed that this was correct, but said that a new regulation was forthcoming.

“When?” I asked.

“I don’t know.” she said.

The FEC has been in the process of trying to figure out what changes, if any, should be made to disclaimers on internet advertising since 2011, when it first called for public comment on proposed rulemaking. Five years later and less than a month before the presidential election in 2016, the FEC reopened the comment period “to receive additional comments in light of legal and technological developments,” then reopened it again at the end of 2017. In March of 2018 the FEC indicated for the first time that it was going to consider changes to the definition of “public communication,” including possibly applying the same “stand by your ad” disclaimers required for TV commercials to video ads distributed online and via social media. In June, the FEC held a day-long public hearing in Washington, DC at which little was agreed upon.

And now it’s November 2018. Seven years after the FEC started working on updating its regulations to bring them in line with how people actually disseminate and consume information, there’s still no telling when or if it will actually happen.

Perhaps the real-world example of the president personally riding this nuclear missile of a campaign ad through this long standing loophole will finally motivate the FEC commissioners to close it before 2020. But then again, since President Trump won’t fill the existing vacant spots on the commission it would take a unanimous decision by the existing Republican-heavy leadership to make that happen, which seems… unlikely.

If you think this is a problem, we’d suggest writing your member of congress, and maybe even the FEC commissioners themselves.

But more importantly… vote!


IXNAY PAC is a non-partisan group devoted to getting Donald Trump and his allies out of American politics.

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IXNAY PAC

Working to get Donald Trump and his allies out of American politics.

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