Leaving aside the question of whether or not the FEC should regulate social media ads (and personally I think they should), as a practical matter, they can't for the time being. As of a few weeks ago with the resignation of a commissioner, the FEC lacks quorum, and the administration apparently isn't planning to appoint any replacements for the time being, which means they can't issue rules governing Facebook or anyone else, nor can they initiate enforcement actions or investigations, or issue advisory opinions about what campaigns or companies should and shouldn't do to comply with existing rules.
Not saying that the current administration is trying to abuse this, but having the executive branch able to paralyze the body governing elections seems like a massive loophole.
Is this something that congress could (technically, not politically) fix themselves, or do they really depend on a nomination from the executive branch?
> Is this something that congress could (technically, not politically) fix themselves, or do they really depend on a nomination from the executive branch?
You could have any vacancy for more than X-days be filled by the minority party. (i mean even nominating an acting member -- you don't need to get an approval)
Proposal assumes two parties and would codify this. Two parties is one of the ways Americans keep getting themselves screwed. No need to codify it. Maybe one day we shall fix it?
They can't appoint people, but they could change the quorum rules to allow the currently sitting commissioners to regulate. It would require Presidential signature, though, or enough votes to override a veto.
This is a red herring - there's no law against untruthful political advertising. Such a law, broadly enforced, would likely be unconstitutional and how do you suppose that you enforce it? Also, if that was the law, it wouldn't be up to corporations to determine what is true and the responsibility would fall between the politicians and the regulatory body that decides what the truth is. That sounds to me like a totalitarian nightmare but I suppose YMMV.
I don't know why it would be any different constitutionally from false advertising in any other context. It's not a crime per se, but false advertisers can be held civilly liable for misleading consumers, and individual consumers can sue false advertisers, as can the FTC on the public's behalf (presumably it would be the FEC instead, but work similarly). The court system (so, presumably a jury) decides whether or not it's false.
Civil liability is an entirely different matter altogether but what's problematic about false advertising isn't that the claim was false, but more that you're breaking a promise. This isn't about free speech, but more about an implicit contract being violated. Political speech, on the other hand, is explicitly what the freedom of speech as a right is about.
Either way, I don't believe anyone would claim that in case of false advertisements, the responsibility falls on the publisher of ads, not the advertiser. It's not generally possible to evaluate the claims made in advertisements - if I were to say, something I'm selling will work for 10 years and will offer replacements if it breaks in the next 10 years, how would the ad publisher know if I would honor the claim several years later?
