Ensuring compliance with the regulatory agencies that oversee campaign donations can be especially difficult—especially when it comes to new communications technology. As any large campaign with a significant mobile fundraising arm is familiar, the existing fundraising rules have been outpaced by technological advancements. In order to remedy this problem, some have proposed that the FEC establish an ongoing advisory panel specifically devoted to communications technology as it relates to political campaigns. 

Starting with the 2008 Obama operation, campaigns have made great strides in mobilization and fundraising through mobile technology. However, current laws seriously restrict their ability to take full advantage of mobile devices in fundraising. While non-profit charities can receive anonymous donations of up to $50 via text message, political campaigns are barred from doing so. During the 2009 Haitian earthquake crisis, for instance, texting the word “donation” to a specified SMS code would trigger an automatic contribution charged to one’s cell phone bill; the would-be donor to a political campaign circa 2010, on the other hand, has to do it the old-fashioned way, by providing credit card information and having the donation charged to their account.

Some campaign professionals have begun to chafe under these restrictions. John Aristotle Phillips, CEO of Aristotle, Inc, a political technology and consulting firm, sees storm clouds on the horizon. “Fast forward ten years and you can see these challenges playing out,” he says. Aristotle, Inc. recently called for the FEC to establish a transparent advisory panel to advise campaign professionals on the appropriate use of evolving technologies.

“It is often the case, in any regulated industry the people do stuff not anticipated by the regulators,” says Phillips. “They are not bad; they are just different from what was done before.” Phillips says that limiting new technologies not only handcuffs campaigners, it also disenfranchises younger voters who spend the majority of their time online or on cell phones.

                                 

There is resistance to Aristotle’s proposal from both the FEC and campaigns and their technology providers. Dave Mason, former FEC commissioner and Aristotle, Inc.’s vice president of compliance services, believes that the FEC is reluctant to provide broad advice out of concern that it will be misused to justify potentially improper behavior. Campaigns and technology providers, for their part, are apprehensive about disclosing their methods to the FEC out of fear that they will end up in the hands of a competitor.

“A lot of times, the FEC is in the dark on how campaigns use technology,” laments Mason. “A lot of campaigns are in the dark about how the FEC thinks things should be done. It is frightening, distracting and costly [for both parties].”

Illustrating the challenges of regulating fundraising with new communications technology, the FEC endured some criticism of its recent ruling on whether disclaimers from the sponsoring political organization should be required in Google ads and how long they would have to be if required.

The argument against requiring disclaimers was that they would swallow up the limited space available in such ads and potentially apply as well to ads via text message or tweet, in which space is also very limited. The FEC ruled that Google ads can remain disclaimer free under a “small items” exemption, at least for the time being. Critics argue that the ruling was too vague and provides no guidance for future advertisers and technology providers. Disclosure advocates also believe that this ruling could provide a road map for political advertisers in traditional media to sidestep disclosure guidelines by simply making the ads short enough to be justified as “small items.”

“People in the business of campaigns, not just candidates but the people planning these efforts, they want to be compliant,” says Phillips. Despite the current sluggish state of the regulatory agency, Phillips is optimistic that in the future the FEC will become more responsive to the campaign industry’s evolving demands. “To stay relevant and responsive and foster the maximum amount of speech and transparency, the FEC should look outside the walls of the building,” he says. “I think they are willing to do that.”

Nonetheless, the FEC has not yet responded to Aristotle, Inc.’s calls for the establishment of an advisory panel on campaign technology.

Noah Rothman is the online editor at C&E. Email him at nrothman@campaignsandelectoins.com