Brief Digital Political Ads

What is a Digital Political Ad?

The answer may not be as simple as you think. State definitions—as well as online platforms’ definitions—for political advertising vary, and not all states explicitly mention digital or online advertising. Some examples:

Arizona: Political advertising is “information or materials, other than nonpaid social media messages, that are mailed, e-mailed, posted, distributed, published, displayed, delivered, broadcasted or placed in a communication medium and that are for the purpose of influencing an election” (A.R.S. § 16-901).

New Hampshire: Political advertising is “any communication, including buttons or printed material attached to motor vehicles, which expressly or implicitly advocates the success or defeat of any party, measure or person at any election” (RSA 664:2).

Washington: Political advertising “includes any advertising displays, newspaper ads, billboards, signs, brochures, articles, tabloids, flyers, letters, radio or television presentations, digital communication, or other means of mass communication, used for the purpose of appealing, directly or indirectly, for votes or for financial or other support or opposition in any election campaign” (RCW 42.17A.005).

An online platform’s definition can also intersect with a state’s definition, potentially causing confusion about what content is allowed or what meets campaign finance disclosure requirements. Google, for example, defines political ads as those purchased by or about current elected officials or candidates for state or federal office or for ballot measures. Facebook’s definition is similar, but includes ads about “social issues.” And Twitter, which banned political ads in 2019, defines them as relating to “a candidate, political party, elected or appointed government official, election, referendum, ballot measure, legislation, regulation, directive, or judicial outcome,” though cause-based ads are allowed. (Many of these platforms also have rules about mis/disinformation, an issue closely related to digital political ads, but not addressed here.)

Legislators may want to examine their state’s definition of digital political advertising to ensure it meets their state’s needs in the current technological landscape.

Approaches to Digital Political Ads

By virtue of NCSL’s mission, this page focuses on legislative options for managing or regulating digital political ads. Many observers may not see a legislative imperative. Those on the right may advocate for little legislative involvement in online political advertising, arguing that regulation curbs free speech and limits access to the low-cost and democratic space of online advertising.

Lawmakers may also argue that industry players, rather than legislators, are in a better position to manage digital political ads because they understand the complexity of online advertising. The Digital Advertising Alliance’s Political Ads program offers a self-regulatory approach to increase transparency and accountability in digital political advertising. Such programs could work in tandem with legislative regulation.

Legislative Options

For those who are interested in regulating digital political ads, there are two main types of legislation on digital political ads: disclaimer requirements and database requirements.

Disclaimer legislation addresses how required disclaimers are applied to digital ads. The shape, size and format of digital ads can vary widely across platforms, so legislators may wish to think about how or where disclaimers can be located—are they on the ad, shortened, available with a click through or accessible through an icon? California’s "Social Media DISCLOSE Act" (2018), for example, requires that ads include the text “Who funded this ad?” and a link to a separate webpage that provides the answer. Even so, the act makes provisions if such text won’t fit on the ad. 

With disclosure requirements, lawmakers will also need to think about who is responsible for imposing those requirements—platforms or advertisers. In 2018, Maryland passed the “Online Electioneering Transparency and Accountability Act,” which required that online newspapers and media outlets publicly disclose the names and contact information of anyone who purchases online campaign or issue ads. Yet, many online platforms do not know who their advertisers are, and this issue was at the core of the legal challenge to Maryland’s bill brought by newspaper publishers and the regional press association. The court found that asking advertisers to self-identify to publishers would not effectively limit foreign involvement in political advertising or meet the intent of the law.

Another legislative option is to require a database of digital political ads, including information about who paid for it, when the ad ran, a copy of the ad and more. Legislators interested in this option will need to consider where the database will exist and who will be responsible for maintaining it. New York has successfully enacted and implemented a public database. Facebook, however, has chosen not to run ads in the Evergreen State because the social media giant does not collect the required information or make it publicly accessible.

The legislation of digital political ads may occur on the city or federal level, as well as the state level. In Seattle, for example, anyone who sells or produces political advertising must maintain public records that include the ad buyers’ names, addresses, a copy of the ad, cost of the ad, the name of the candidate or elected official mentioned by the ad, the relevant election and more. In 2017, Senators Amy Klobuchar, Mark Warner and John McCain sponsored the Honest Ads Act, the first federal-level effort to subject internet ads to the same regulations as radio and television ads and to make publicly available the identity of the ad purchaser. It failed and was reintroduced in 2019, where it died in committee again.

The table below captures all significant introduced state legislation on digital political ads.