Washington Journal of Law, Technology & Arts


Digital political advertising is a large and growing segment of political advertising. Despite this, it remains largely unregulated. Attempts to regulate digital political advertising have been state-based and have broadly fallen into two models: a candidate or committee-based disclosure model which demands disclosures from advertising purchasers, and a commercial-advertiser-based disclosure model which requires disclosures from advertising sellers. The former struggles to provide information to voters and advertising consumers that is not already otherwise available and provides little benefit to regulators and enforcers; the latter provides both additional information to voters and a clear enforcement benefit to regulators. In 2018, Maryland established a commercial-advertiser- based disclosure model; this iteration of the model was quickly declared unconstitutional on First Amendment grounds. However, applying the Supreme Court’s campaign finance disclosure precedent to Washington’s long-standing version of the commercial-advertiser-based disclosure model leads to a different outcome. While regulators and legislators should be conscientious when creating and enforcing commercial-advertiser-based disclosure models, these schemes appear to support the informational, enforcement, and anticorruption interests described in the Supreme Court’s campaign finance precedent. The models thus appear to fit within the limits of constitutionally acceptable campaign finance disclosure laws.

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