Congressmen in major metropolitan areas who place ads on Facebook run the risk of violating the Constitution.
No, they are not seizing anyone’s FarmVille or quartering troops on someone’s wall. But they could run afoul of a 20-year-old court ruling designed to prevent incumbents from having an unfair advantage in elections immediately following redistricting.
Franking statutes forbid House Members from using official resources to send mass mailings outside of their district. But Facebook’s advertising platform is too imprecise to prove with certainty that only a Member’s constituents would receive an ad placed on the social network.
Up until the early 1990s, Members could send official franked mail to residents of new areas added to their districts after new maps were drawn but before they were elected there. In 1992, however, the U.S. Court of Appeals District of Columbia Circuit ruled that the allowance violated voters’ and nonincumbent candidates’ First and Fifth Amendment rights to fair elections.
“In essence, every 10 years the statute provides federal funding to incumbents to send mass mail to voters whom they do not yet represent, but who might vote for them come November,” Circuit Judge Laurence Silberman wrote at the time. “Because the statute, which operates only in an electoral context, provides financial assistance to incumbents against major-party challengers, I believe it to be unconstitutional.”
That year, Congress codified a restriction satisfying the court’s qualms. As it stands now the U.S. Code reads: “A Member of the House of Representatives may not send any mass mailing outside the Congressional district from which the Member was elected.”
But the intersection of franking law and the Internet is very much new terrain.
The law and court ruling were both written before the Internet became ubiquitous and neither specifically addresses online ads. The Member’s franking handbook, which lays out the dos and don’ts of franking, categorizes online ads on par with newspaper and radio advertising, which have less stringent regulations concerning who views the material.
“Members are authorized to purchase only advertisements ... on webpages that serve the Member’s district,” the handbook states. The content of online ads is also restricted in a way that more resembles radio and newspaper ads than mailings.
When Members are asked to report the results of their ad, such as how many people viewed it, it is reported to the public in the quarterly House statement of disbursements as a mass mailing.
House Administration Committee spokeswoman Salley Wood said the intent of the law extends to the Web.
“This committee would advise Members to adhere to the spirit of this law and not send mass communication outside their Congressional district,” Wood said.
The trouble is that without precise targeting, Members could do so without trying.
Before 2009, Members were prohibited from buying online ads altogether. The restriction was eased only after Facebook, Google and companies such as CampaignGrid, which sell Web ads to Members, proved they could geotarget, or limit an ad’s scope to a specific geographic area.
“We could prove to them that we can geotarget and serve ads only to constituents in a Congressional district,” said Jeff Dittus, CEO of CampaignGrid, by mapping each Congressional district online and making sure the ads pop up only on Web-enabled devices therein.
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.