Republican Drew MacEwen definitely likes running Facebook ads. A Navy vet and four-term state representative from Union, Washington, which sits at the southern bend of Hood Canal, MacEwen bought Facebook ads to help his re-election campaigns in 2014, 2016, and 2018.
In all, he's reported paying the social media giant more than $5,600 to run ads that trumpeted his accomplishments and, during the 2018 campaign in particular, tore down his Democratic opponent for allegedly wanting to "take away your right to bear arms."
MacEwen won his 2018 race by fewer than 1,600 votes out of more than 65,000 cast in Washington's 35th legislative district, and in the lead-up to that election he ran 52 different Facebook ads to help him secure a victory.
Those Facebook ads were seen—at a minimum—204,000 times. The entire population of MacEwen's district is only about 137,000 people, according to the last census.
So it's not surprising that MacEwen noticed when, shortly after his narrow 2018 win, Facebook announced it would no longer sell political ads targeting local elections in Washington state.
The reason for Facebook's decision: Washington's uniquely strong requirements for transparency in ads that influence this state's voters.
Now MacEwen is hoping to entice Facebook into lifting its political ad ban. To that end, he's introduced two bills for the coming legislative session that would upend this state's nation-leading disclosure rules, altering them in ways that would let companies like Facebook take a pass on providing the public with significant details about the financing and reach of the local political ads they sell.
For example, under MacEwen's proposed bills, companies like Facebook would no longer have to disclose the exact amount paid for local election ads, nor would they have to disclose the street address of the person who actually paid Facebook to run an ad.
MacEwen said he decided to act because he believes Facebook and Google (which also bans local political ads in this state) have developed negative views of Washington's current transparency regime.
“Right now they don’t want to comply with our existing law because it’s too burdensome,” MacEwen told The Stranger.
Neither Facebook nor Google responded when asked about MacEwen's comments and his proposed revisions to Washington law.
But Anne Levinson, who recently finished her term as Chair of the Washington State Public Disclosure Commission, said MacEwen's bills would have negative impacts if approved. MacEwen's proposed legislation, she said, "weakens the required reporting by digital, print, broadcast, and others who sell campaign ads."
Levinson worked during her tenure to modernize and strengthen Washington's political ad disclosure rules for the digital era, and she said the change of course that MacEwen is advocating "would result in less transparency and accountability for the public and voters."
First a Lawsuit, Then the Bans
MacEwen's bills and the tech companies' political ad bans in Washington state are part of a long chain of events, all of them revolving around a central question: How much responsibility must digital platforms take for the political ads they sell?
Google's attempts at wrestling with this question led the company to announce a ban on all local political ads in Washington on June 7, 2018, three days after Washington State Attorney General Bob Ferguson decided to file lawsuits against both Google and Facebook.
Ferguson's suits, which cited The Stranger's reporting, accused the companies of ignoring a long-standing state law that requires all commercial advertisers to provide the public with significant details about the origins and distribution of any political ads they've sold to influence Washington's local elections.
Newspapers, television stations, and radio stations in this state have long complied with this rule, but Facebook and Google have refused—even as their top officials have claimed to want to protect democracy by increasing transparency in online election ads.
In December 2018, not long after MacEwen narrowly won his most recent election, Google and Facebook paid a collective $455,000 to settle Ferguson's lawsuits without admitting any guilt. Soon after that, on Dec 27, 2018, Facebook announced that it, too, would ban political ads targeting Washington state elections.
Then, in an odd twist, both companies kept right on selling local political ads in Washington state throughout 2019.
They also kept on refusing to follow state disclosure law.
As a result, the Washington State Public Disclosure Commission in October charged Facebook with multiple violations of state campaign finance law.
Google, for its part, has been under formal investigation by the PDC for the last six months with no charges yet announced.
How both cases will be resolved remains to be seen, but those resolutions could involve fines and even trial-like proceedings in Olympia.
Wading Into a "Huge Problem"
Amid all of this, there has been significant alarm about the "huge problem" Facebook in particular is creating with its ongoing, confusing, and law-flouting practice of selling significant numbers of political ads that target Washington's local elections.
Back in October, as the fall elections approached and political ads on Facebook (and, to a lesser extent, Google) continued to be aimed at this state's voters, the Seattle Times editorial board accused both Facebook and Google, "two of the largest information companies on Earth," of "making a mockery of Washington state campaign law."
While MacEwen is now arguing for a change to that law because Facebook and Google find it "too burdensome," the Times editorial board wrote in October:
It defies belief to see companies that make billions of dollars from organizing millions of Americans’ online lives claim they cannot adequately track the advertising.
A similar point was made in November, at a public hearing in Olympia, by State Senator Patty Kuderer (D-Bellevue), the Vice Chair of Senate's Government, Tribal Relations, and Elections Committee. She said she'd spoken "extensively" with Facebook about this issue and come away baffled.
“I have yet to get a clear answer as to why a multi-billion dollar tech company can’t come up with an algorithm to figure out what’s a political ad and what isn’t," Kuderer said. "I'm just curious why this is such a big lift for them."
Peter Lavallee, executive director of the Public Disclosure Commission, responded at the November hearing: "That is something that troubles us as well."
He added that whatever feelings Facebook and Google may have about Washington state's current law, if the companies continue to run local political ads in Washington state, they'll have to comply with current state disclosure rules.
"It's that simple," Lavallee said.
Unless, of course, MacEwen succeeds in changing state disclosure rules.
“I Might Not Have Everything Answered Exactly as We Need It to Be”
In a December interview with The Stranger, Rep. MacEwen claimed repeatedly that the aim of his proposed legislation is not to make life easier for Facebook and Google—"although I acknowledge it does," he added.
He also denied being lobbied by the tech giants in regard to these issues.
Asked whether the staff who helped him produce this legislation has been lobbied by the tech giants, MacEwen responded: "Not to my knowledge."
His issue, MacEwen claims, is that with Facebook and Google banning local political ads in Washington state, "you can’t even do a simple promotion to get more likes."
Such limitations, he said, hurt challengers who want to take on entrenched incumbents but can only afford the cost of online ads, which are often much cheaper than ads in traditional media.
“I hear frustration from candidates, and also officeholders, that this has drastically curtailed the way a candidate can communicate to potential constituencies about issues," MacEwen said. "And social media today is the main source of information… whether that’s right or wrong.”
As the Seattle Times editorial board, the Public Disclosure Commission, and Sen. Kuderer have all suggested: Isn't one simple solution for Facebook and Google to just drop their supposed bans and start following state disclosure law? Don't these massive companies possess the technical sophistication and engineering prowess to identify the political ads they're selling to influence Washington state elections and then make the appropriate disclosures about them?
“I think that’s a fair question to ask," MacEwen said. "And, you know, maybe we can get a better answer to that out of the legislative process.”
He continued: "I'm not saying that the companies—could they create some method to do this? Yeah. But is that reasonable? I’m just thinking out loud here…”
He trailed off.
At another point in the interview, MacEwen said: "I might not have everything answered exactly as we need it to be.”
MacEwen's Own Facebook Ads Demonstrate Potential Problems in His Legislation
To tour through the 52 Facebook ads MacEwen purchased in 2018 is to see both the source of one of his frustrations, as well a case study in how his proposed bills would decrease the amount of information online political ad-sellers have to disclose to the public in Washington state.
The first thing one notices is that all of MacEwen's 2018 ads have been marked as "against Facebook Advertising Policies"—although during the 2018 election cycle it was not against Facebook policies to run political ads in Washington state. (The company announced its ad ban later, putting it into effect on Dec 27, 2018.)
Still, the markings are a reminder that if MacEwen or anyone else now tries to purchase political ads aimed at Washington state's elections, official Facebook policy is that they won't be allowed. (As mentioned, Facebook's actual practice is another thing.)
In addition, the ability to call up MacEwan's Facebook ads from 2018 using Facebook's publicly accessible online archive is a reminder that the company has taken some real steps since the 2016 Russian election interference debacle to increase transparency. Google, in contrast, still lacks a useful archive of state and local political ads.
But part of the reason Facebook keeps running into serious trouble with this state's election regulators is that its ad archive doesn't go far enough. It doesn't, for example, follow state requirements to provide the public with "the name and address of the sponsoring person or persons actually paying for the advertising." Instead, it only provides a link to a Facebook page associated with ad purchases.
Interestingly, one of MacEwan's bills specifically changes state requirements so that merely providing a "social media page," as Facebook does, is enough.
A number of MacEwen's other proposed changes are notably in synch with the current failures of the Facebook ad archive to comply with Washington state code.
Facebook's archive doesn't disclose the "manner of payment" for each ad, although state law requires it to do so. MacEwen's legislation gets rid of that requirement for political ad-sellers.
In addition, Facebook's archive only provides a range of possibilities for each political ad's cost, rather than the "total cost" of each ad as required by Washington state law. MacEwen's legislation says that "total cost" may, in fact, be expressed "as a range" if a political ad-seller such as Facebook desires.
For each of these potential rollbacks, there are potential consequences to the public's ability to follow the money behind local political ads.
Levinson, the former Chair of the PDC, said that as a general principle transparency requirements "should not be going backwards."
She pointed to the huge public interest in Amazon's recent spending in Seattle's city council elections as a validation of the importance of keeping current campaign finance laws strong, while at the same time working to strengthen such laws further for the digital age.
A similar point was made by Democratic State Representative Mike Pellicciotti, who has a long track record of work on transparency issues in the legislature.
This session he'll once again try to close the so-called "revolving door" that allows lawmakers to turn on a dime and become lobbyists (a revolving door that played a role in Amazon's recent election spending, which was directed partly by former State Senator Guy Palumbo). Pellicciotti said he hasn't read MacEwen's proposed bills yet, but added: "I would have a concern with anything that does not encourage more transparency in our political campaigns."
It's hard to see how transparency would be increased by MacEwen's proposal to, for example, allow Facebook and other commercial ad sellers to present the "total cost" of local political ads "as a range."
Here, MacEwen's own Facebook ad purchases in 2018 are again instructive.
According to the wide ranges provided by Facebook's ad archive (which would have to tighten up a bit under MacEwen's bill), the cost of MacEwan's Facebook ads in 2018 was somewhere between $1,600 and $11,548.
That's a pretty broad range and, as a result, it's not very transparent.
So, exactly how much did MacEwen really spend on Facebook ads in 2018?
It's a small and somewhat intricate mystery.
While Facebook's archive does currently offer a "total" for the amount spent on all political ads MacEwen has run since May 2018, that's not what Washington rules require (Washington mandates that companies like Facebook disclose the total amount spent for each individual ad). In addition, Facebook's fine print says its "total" is really just an estimate.
But, given that the only Facebook ads MacEwen has run since May 2018 are his ads for the 2018 election year, we can say that Facebook puts MacEwen's "total" (meaning estimated) ad spending for 2018 at $3,860.
MacEwen's disclosures to the PDC, meanwhile, put his total Facebook ad spending for 2018 at $3,631.
Those numbers are close, but they don't match—which gets to another interesting facet of MacEwen's proposed legislation.
An Intriguing Aspect of MacEwen's Bill: A State-Controlled Online Ad Archive
As part of lightening up this state's supposedly "burdensome" disclosure requirements for Facebook and other political ad-sellers, MacEwen's legislation shifts disclosure responsibilities in two directions.
One is toward the purchasers of political ads, who under McEwen's rules would become the sole parties responsible for disclosing things like the "total cost" and "manner of payment" for ads. That change, Levinson said, undermines "a tremendously valuable backstop."
Right now, both the purchasers and sellers of local political ads are required to disclose things like an ad's "total cost." As Levinson explained, comparing the disclosures from two parties to the same transaction allows "the public and the media to check on the veracity of information."
As illustrated by the mystery around the true amount spent on MacEwen's own 2018 Facebook ad purchases, it's not unusual for there to be a discrepancy between what an ad purchaser says was spent and what an ad seller says was spent.
Investigating such discrepancies can lead to useful discoveries and expose false reporting by campaigns and elected officials.
But if the ad purchaser is the only party required to disclose things such as an ad's "total cost," then the ad purchaser can lie or otherwise mislead the public and there will be no real-time "backstop." In the rush of fast-paced campaigns, this could mean certain kinds of election manipulation aren't discovered until well after the voting's over, if they're discovered at all.
The second direction that MacEwen's legislation shifts disclosure responsibilities is onto the government itself.
He wants the state's long-underfunded Public Disclosure Commission to compile all the disclosure reports from ad purchasers, combine them with the newly less-"burdensome" disclosure reports from ad sellers, and then host all of that information in a publicly accessible political ad archive.
In the abstract, a government-run archive of political ads is not a wild or even novel idea.
The New York City Campaign Finance Board hosts its own online archive of ads purchased by independent expenditure campaigns in that city, and an even more robust and comprehensive archive could certainly be hosted in Washington state by the PDC.
Levinson actually proposed such an online archive herself back in October 2018, and the PDC is currently studying what it would take to create one.
At the November hearing in Olympia, Peter Lavallee, executive director of the PDC, said he thinks "the best possible tool is for the state to have its own archive."
But, Lavallee cautioned, "it's a heavy lift."
MacEwen's bills don't allocate any money toward building such an archive.
Moreover, in lightening the disclosure and reporting requirements for companies like Facebook, MacEwen's bills set up a potential "garbage in, garbage out" situation in which the state ends up hosting an archive filled with incomplete or even downright false information.
“It's not enough to just say there should be a database," Levinson said. "It’s critically important that the legislature ask the agency what it would cost to build this ad archive out in the way that it should be, and to do it on the soonest possible schedule that can be done. It shouldn’t be an unfunded mandate.”
She continued: "Creating an advertising database has to fulfill the purpose that there is heightened transparency into the targeting and funding of ads that’s meaningful."
The PDC would need to have the power to compel useful reporting to the database by both ad-purchasers and ad-sellers, Levinson said, and the state-run archive would need to include copies of the ads themselves (including any disclaimers that ran with them), ad targeting information, each ad's "total cost," each ad's "total number of impressions," and more.
When it comes to digital ads, Levinson said, it's become clear to her that they're "particularly problematic in terms of disinformation and manipulation of voters."
At the same time, Levinson added, she hopes the state's regulatory approach to digital ads ends up valuing their real "power to mobilize" while simultaneously remaining clear-eyed about their power to "polarize, confuse, and dissuade.”
"Big Data, Big Dollars"
Kim Bradford, spokesperson for the PDC, said the agency has not yet taken an official position on MacEwen's bills. But she praised the state's existing disclosure rules.
"Washington state’s commercial advertiser disclosure law is one of the strongest in the nation," Bradford said. "We’re proud that our law has been on the books for so long and vests power with the public directly. The Commission is committed to ensuring compliance so that the public has accurate and meaningful disclosure about political advertising."
In addition, Bradford said, the PDC "is committed to listening to anyone who is concerned that regulations may not be effective or workable."
On January 16 in Olympia, the agency will be hosting a forum on digital political advertising that is titled, "Big Data, Big Dollars."
The event will feature disclosure experts from around the country and digital advertising geeks, and it's likely to explore many of the fundamental issues that connect to MacEwen's bills.
"I expect," Bradford said, "that some of the panelists will raise the question of who should be responsible for disclosing information about political advertising."
The Public Disclosure Commission invites you to a public forum on disclosure of online political ads. The meeting, which will stream live @TVWnews, will examine the growing influence of online political campaigning. https://t.co/CJI2J9W5XV pic.twitter.com/GCAVZoUsEV
— WA PDC (@Wa_PDC) January 2, 2020