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.
Marketers do so by tracing the Internet Protocol addresses, or individualized numbers assigned to each device, Google political ads account executive Andrew Roos said.
Although Facebook allows advertisers to target people by personally identifiable information, city or area within a chosen radius, such as 25 or 50 miles around a city, the social networking website does not target ads to IP addresses or small geographic regions within a city, such as Congressional districts.
Easy enough to comply with the law in South Dakota, for instance, where Rep. Kristi Noem (R) represents the whole state. Not so much in Brooklyn, where six representatives share more than 2 million constituents spread out among a few hundred city blocks.
Rep. Anthony Weiner, for example, can target ads to Facebook users who live in Brooklyn and like his Facebook profile. But it’s still imprecise to the point where the New Yorker could ensnare constituents of fellow Brooklyn-based Democratic Reps. Jerrold Nadler or Edolphus Towns.
That’s what might have happened when Weiner advertised a town hall meeting on Google and Facebook in August.
The House Administration Committee requires Members to report how many times an online ad was clicked, referred to as a click-through, and how many times the ad appeared on a website, which is called an impression.
When printed in the statement of disbursements, that information is consolidated into a lump-sum number including hard-copy franked mass mail, click-throughs, impressions and other mass mail.
In the third quarter of 2010, Weiner’s office reported more than 17 million franked items — 70 per household in his district.
A spokesman for the Congressman said the town hall ad actually drew 14,462,674 impressions online and that it was targeted to district constituents, though the office does not have the address of everyone who saw the ad. After being contacted by Roll Call last month, Weiner’s office filed a corrected franking report reflecting only the Web ad’s click-throughs. That number is 2,469.
Industry professionals said it is not beyond the pale for an ad to draw that many impressions, but no other Member got close. The Bully Pulpit Interactive, the company through which Weiner’s office bought the ad, did not return a request for comment.
A spokesman for Facebook did not comment, but a new-media political consultant speaking on the condition of anonymity said Facebook is simply trying to protect its users’ privacy.
“The information Facebook has to target from is more robust than anything else, except for maybe Google, which has what ZIP codes you order pizza from,” the consultant said. “The problem is Facebook, to protect its users’ privacy, tries to make sure no one piece of targeting can be used too surgically.”
Even Google ads are not perfect. Someone’s work computer, for instance, could have an IP address listed in Washington, D.C., when the person actually lives and votes in Virginia or Maryland.
The House Administration Committee does not require that Members report how the ad was placed and to whom it appeared.
Wood said the committee is planning to shore up the reporting requirements.
“We’re looking for a breakdown,” Wood said. “We plan to talk to the Chief Administrative Officer over the course of the next couple of weeks and try to modify that report so there will be more clarity as it pertains to what kind of communication it was.”
Clarification: May 2, 2011
The article mentioned a franking report filed by Rep. Anthony Weiner’s office that reported more than 17 million franked items in the third quarter of 2010. After being contacted by Roll Call last month, Weiner’s office filed a corrected franking report reflecting only the Web ad’s click-throughs. That number is 2,469.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.