Federal Election Commission Makes The Right Call Allowing A Dumb Program By Google To Whitelist Political Spam Into Your Inbox
Over the last few months, Republican politicians have been working on a nonsense plan to force their spam into your inboxes. This kicked off following some Republican operatives misunderstanding (whether through their own cluelessness, or on purpose) a study about political spam and how different email providers deal with it. Since then, Republicans have been screaming about how Google is trying to silence their campaign emails - even though their emails tend to be a lot more spammy. And then you have GOP digital marketing people being so clueless that they misconfigure their email settings, and blame Google for it, rather than realizing it was their own fault (the party of personal responsibility is no longer, it seems).
Anyway, faced with so much misplaced anger over all this, Google caved, and introduced a pilot program to whitelist political spam. It requested that the Federal Election Commission bless the program to make sure that it was not deemed an unauthorized in-kind political contribution. Like any such request, this was opened to public comment, and the public absolutely hated the idea. I mean, really, really, really hated it.
It turned into one of the most active items ever on the FEC's docket, with over 2600 comments on the initial proposal, and another 100 on the draft opinions the FEC released (one in favor of the program, and one rejecting it) and almost all universally spoke out against political spam and asked the FEC to reject the program.
Except, of course, the petition was not about whether or not political spam is good or bad, or whether or not Google's whitelisting plan was good or bad. It was just about whether or not it constituted an in-kind contribution that would trigger campaign finance laws. And there's really no reasonable way to argue that it should trigger such laws. And, so, the FEC has (quite reluctantly) given its blessing to the program.
This is the right call, legally speaking. This kind of service shouldn't be seen as an in-kind contribution, and it sounds like all but one of the FEC commissioners realized that. Ellen Weintraub disagreed, calling it an in-kind contribution, and pushed forth the draft opinion rejecting the program. Weintraub argued that this kind of thing - avoiding spam filters - seems like something of value that lots of others would want, and to only offer it to campaigns suggests that political actors are getting something special, which (to her) is an in-kind contribution. Google responded to that in noting that this is being offered equally across the board to any campaign, and the issue of in-kind contribution tends to be one that is focused on trying to influence an election one way or the other - and this is not designed to do that.
Other commissioners noted, correctly, that even as they disliked the very idea of the program, there was no legal basis to block it. You can see the discussion in the video below, starting at 5 minutes and 40 seconds.
It's actually pretty interesting to watch the discussion. Commissioners repeatedly try to dig down on just why Google is doing this, and even ask Google's lawyer directly if it's in response to Republicans whining about this. The Google lawyer diplomatically tap dances around that, even though that's obviously what's going on here.
Since Google keeps insisting its trying this pilot program for commercial, not political reasons, one commissioner asks Google's lawyer if she's aware of the universal anger in the comments to the program - leading her to note that they're paying attention to all sorts of feedback and that's why this is a pilot" program, to see how users actually like it.
Of course, that all feels like a smokescreen. Google is doing this to try to calm down technically ignorant, but very angry, Republicans. Of course, saying that then makes this feel more like a political move - not necessarily to benefit one party, but to stop it from attacking the company so much (not that that will actually work).
It would be nice if people could just admit that the Republicans pushing for all this are a bunch of tech-clueless children, but apparently that's not allowed to be part of the discussion.
One commissioner, Dara Lindenbaum, who only recently joined the Commission, noted that she was supporting the approval of the pilot program even though I don't want to, and it is for the same reason all the commenters don't want to." But, as she notes, the precedents all support the program, and she (rightly) fears that rejecting it could hinder future innovations and pilot programs for politicians that would be useful. So, even though this program is about spam - and people rightly have a negative feeling about spam - that's not really the issue for the FEC to decide. Rather it's whether or not this program is a problematic in-kind contribution, and all but Weintraub couldn't see how it could be seen as one.
Again, this is annoying, but it's right from a legal standpoint. One hopes that Google quickly discovers that with this program users absolutely loathe it and political spam, and they decide not to expand this program, but to shutter it.
But, congrats to the technically clueless Republicans out there who are forcing more spam into everyone's in-boxes. I hope that Democrats start campaigning on just how much you want to seize people's inboxes for your annoying spam.