Just what I wanted for Christmas: an Oregon election law violation! I've already unwrapped it (by opening an envelope that came from the Secretary of State office) and am "wearing" it proudly.
After all, I had no idea that there was a requirement to register as an Independent Expenditure Filer if someone spends $750 or more in a calendar year in support of, or opposition to, candidates or ballot measures independently of those officially involved in a campaign (like, the candidate, a PAC, and so on).
So I openly and happily wrote a blog post after the May primary election, "What $950 bought me in Facebook Page political post 'boosts'."
Nowadays political campaigns are making good use of social media. Heck, this is a big reason why Donald Trump got the GOP presidential nomination -- he's a Twitter Master.
So when the May 17 election for Salem Mayor and City Councilors approached, I decided to throw about a thousand bucks into supporting my favored progressive candidates -- Carole Smith, Cara Kaser, Matt Ausec, Sally Cook -- via "boosted" posts on my Strange Up Salem Facebook page.
This was part of what I thought of as my extra year of Mini Cooper payments effort to improve Salem's political landscape. The five year loan on my 2011 Mini was paid off this April, so I figured that contributing the equivalent of 12 more months of $250 car payments, or $3,000, to candidates I liked was a great idea: $1,000 went to Mayor candidate Smith, $1,000 to Progressive Salem to support the three city council candidates, and about $1,000 went to the Facebook boosts.
However, to someone in the know about the Independent Expenditure Filer requirement in the Oregon Campaign Finance Manual, that blog post was akin to a thief putting up a billboard with his name on it that said "I just stole some stuff!"
That someone was Salem City Councilor Warren Bednarz, who filed a complaint with the Election Division on August 12, 2016. In the May election Bednarz was beaten by challenger Sally Cook, who I supported in several boosted Strange Up Salem posts.
I guess Bednarz wasn't happy about this, hence the complaint against me. Which, of course, he was entirely entitled to file.
Download Bednarz complaint to Elections Division
When I got the complaint via an Elections Division staffer, I read it carefully, along with what the Campaign Finance Manual said about independent expenditures. I also Googled "Facebook post boost political expenditure," or words to that effect.
After a lot of searching, I couldn't find any example, anywhere in the country, where a Facebook post that had been boosted (by paying money to Facebook) to reach more people had been considered a political expenditure. The examples of independent expenditures in the Campaign Manual also didn't mention anything akin to a Facebook boost.
So I decided to challenge Bednarz' complaint. The letter I sent to the Elections Division made a lot of sense to me. But I have to admit, I'm me, so I've got some biases toward moi.
Download Elections Division letter 8-22-16
Mr. Bednarz obviously isn’t challenging the many other similar posts I wrote around the May election. These, like the six posts in question, reflected my personal opinion about the primary election here in Salem. Thus, the question here is whether paying to “boost” a Facebook post so it reaches more people is a “communication expressing clear words of advocacy.”
I am strongly arguing, “No, it isn’t.” To repeat: I did not pay Facebook to publish a communication. I already had published the communication for free when I paid Facebook to “boost” the post so it reached more people than it would otherwise.
Here’s a good analogy: I am standing before a crowd, exercising my First Amendment right to speak to them about a political issue. This is analogous to me writing a post on my Strange Up Salem Facebook page. Mr. Bednarz obviously is not challenging my right to do this. I did this with the six posts in question, just as I did with other posts around the time of the May election that were not “boosted.”
Returning to the analogy, I realize that my unamplified voice isn’t strong enough to reach people on the edges of the crowd. Conveniently, a guy approaches me with a battery-powered megaphone. “Want to use this for $5?” he asks me. “Sure,” I tell him. Now people in the back of the crowd can hear me.
I haven’t altered my freely spoken communication in any way. I haven’t paid the guy to write a speech, print posters, make a radio/TV ad, or anything of that sort. I’ve simply paid him for a means to amplify my freely-composed communication so more people can hear it.
This is what “boosting” a Facebook post does. It isn’t an expenditure to make a communication. It is a payment to reach more people with an existing free, no-charge communication.
The Independent Expenditure Filer rule refers to just that: expenditures to make a communication. It talks about payments for “making” a communication. I paid Facebook nothing to make a communication, such as a political ad. Rather, I paid Facebook to amplify the communication that I freely made on my own.
Well, the Elections Division final determination on Bednarz' complaint that I got yesterday didn't find my arguments as persuasive as I did.
Download Final determination Bednarz complaint
Which doesn't mean I agree with the final determination.
It bothers me that a communication made at no cost -- a Facebook post -- becomes an independent political expenditure when that post is "boosted" via a payment to Facebook so it reaches more people.
Yes, I understand the reasoning of the Elections Division. I can see how this makes sense to them:
While the original communications, the Facebook posts, were posted at no cost to you, by paying to boost a post you communicated your support and opposition of the candidates to a broader audience than what the original posts reached.
What bugs me, and I readily admit that this will sound more like an ethical/moral argument than a legal one, is how corporations, such as the Gannett Corporation that owns the Salem Statesman Journal newspaper, is able to spend many millions on reaching a "broader audience" who then can be bombarded with perfectly legal political endorsements.
Meaning, the Statesman Journal endorsed Mayor candidate Chuck Bennett and Measure 24-399, both of which I opposed in boosted Facebook posts.
So the newspaper could urge tens of thousands of people to vote for a candidate and a ballot measure, but this isn't considered an "independent expenditure" because no extra money other than the many millions of dollars Gannett has spent on the Statesman Journal was expended on the political endorsements.
This is the way our political system works: individuals and organizations who have an innate ability to reach voters (like a celebrity with millions of Twitter followers) have free rein to urge people to vote a certain way. Citizens like me, who need to pay Facebook, say, to reach more people, have to jump through regulatory hoops to do this.
Sure, it took me less than an hour to register as an Independent Expenditure Filer, and then file the transactions describing the money I spent on the Facebook boosts. But I still feel like the political voices of ordinary citizens are being unnecessarily constrained by the Elections Division ruling.