It was the story that rocked the online consulting world—sort of. A case of online space allotment jettisoned a low-profile St. Petersburg mayoral race onto the national consulting stage when the Florida Election Commission said first-time candidate Scott Wagman’s pay-per-click ads on Google violated state law because they omitted required disclaimers. Wagman is fighting the ruling and consultants are saying that if the Florida Election Commission upholds bans on Google ads, it could be the death knell for text-based Facebook and Google political advertising.
“We thought that we were running a cutting-edge campaign,” says Brian Bailey, president of Rearden Killion Communications and a consultant to the Wagman campaign. “We were apparently testing the boundaries in doing so.”
The Google text ads, which pop up on the right hand side of the screen under “Sponsored links” when you type in campaign-related keywords, cap the ad’s characters at 95, in addition to the URL. The disclaimers required by Florida law usually exceed 100 characters, making the disclaimer longer than the ad itself. “This is a case where Florida law just hasn’t caught up with the technology,” Bailey says.
The Federal Election Commission lumps Google text ads into its exemption category, which says things like bumper stickers and pens don’t have to display impractical disclaimers for space issues. The Florida Elections Commission law is murkier, making no exception for text ads, but allows campaign messages designed to be worn and novelty items with a retail value of $10 or less to run without a disclaimer. “The scariest thing about this case is that this is the first situation of its kind, so on a state-by-state basis, whatever precedent this sets in Florida could be fodder for elections across the nation,” says Bailey.
But Josh Koster, a Florida partner at the digital consulting firm Chong + Koster, calls the flap a Chicken Little issue with the consulting industry yelling that the sky is falling, when in actuality all the situation requires is an updating of an archaic state law. “Nationally, this will have absolutely no impact,” says Koster. “Florida is 49th in the country for education and by any metric, the state government is just an abject failure.” Koster does concede however, that partisan politics could make the issue cross state borders. “I suppose there could be copy cats, and ripple effects in other states if one side is using it effectively and their opponents latch onto this and use it as a gimmick,” he says. “But from a policy standpoint, no one takes Florida seriously. We’re the punch-line of other governments.”
Several Florida state legislators have already jumped on the issue, trying to one-up each other, introducing legislation to modernize Florida’s online election laws. Mark Herron, a Talahassee-based attorney who concentrates on election law, said that Google-ads didn’t sprout onto the local radar until recently but are beginning to take root and will be standard in upcoming elections.
In 2008, text ads on Google and Facebook were used by almost every top-tier campaign, from Barack Obama to Barbara Boxer. According to an article in The Wall Street Journal, of the $4.8 billion spent on political advertising in 2008, $20 million was spent on search ads.While this case is garnering national attention, many are saying that the doom and gloom scenario for online-based consultants is mere hype. Bailey says that while this case is groundbreaking from a legal standpoint, for the consulting industry, it’s a non-issue. “Soon, we’ll all look back at this and say ‘it’s about time,’” he says.