Corporate Regulation of Internet Politics

August 15, 2016
posted by Bob Bauer

Nate Persily has written intriguingly about the “dangers” and “opportunities” presented by the increasing prominence, and perhaps eventual dominance, of Internet platforms as outlets for paid political speech. We’re not in a television age anymore, he cautions. Now we have portals that have fundamental decisions to make about whether and how to apply policies devised for commercial speech to political communications. Those decisions concern standards of tone, fairness, accuracy and content, e.g. hate speech, but also those of transparency, such as requiring more complete disclosure than the just an organization’s name might provide of the true sources of financing for its paid ad.

The opportunity Professor Persily sees is for these Internet platforms to effect policies beyond the constitutional authority and probably the political reach of the government. The danger he points out is that private organizations may use their market power to engage in censorship practices and to do so without full transparency or accountability.

This is a timely, insightful call for attention to a transition in the political marketplace that might otherwise escape full and searching notice. A major problem is the one of trying to have it both ways. We might ask these Internet platforms to be restrained in the exercise of their power in some respects, but less in others, depending entirely on variable judgments of the worthiness of the goals. Professor Persily has suggested measures to address what he describes as “well-known pathologies of the campaign finance system.”

For example, Persily would be prepared to have the major platforms require political advertisers, sometimes operating behind uninformative or actively misleading names, to disclose in their ads, or to enable viewers to quickly identify by a “click”, their largest donors. This is a proposal that, in the legislative sphere, has been proposed and debated but has not yet met with success. It seems a serious challenge to basic expectations about the promulgation of political rules—how and by whom they should be formulated—to ask private organizations to force to a conclusion a debate that has stalled in the political process.

This challenge becomes still more pronounced if the transparency and other forms of corporate-based regulation of politics are ones that the government as a constitutional matter could not impose. In the age of Citizens United this turn of events would be more than mildly ironic. Outsized corporate influence is no less outsized, and the objections to it no less well-founded, if the influence comports with approved rather than disfavored policy objectives.

In the end, the adaptation of transparency standards to Internet political communications will depend for acceptance and durability on political debate and process. It may take a while, and there are risks, no doubt, that follow from a delayed or unsatisfactory outcome. Moreover, there are both substantive and political limits on what government regulation can and should be expected to accomplish. But for all that, the chance to shorten the waiting period by passing on responsibility to large, powerful companies, and the advantages seen in getting around the constitutional limits on state action, may be “opportunities” best passed up.

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