If 2024 Is The Influencer Election, Where’s The FEC?

The 2024 US election is officially “the influencer election,” according to news stories that poured out of the Democratic National Convention. While their reach on platforms such as TikTok and Instagram has secured some “content creators” exclusive access to some of the country’s top lawmakers, influencers are largely flying under the regulatory radar in the US, even as other nations plod ahead with various schemes to govern their role in politics and elections.

The Federal Election Commission (FEC), which is tasked with enforcing US campaign finance laws, has so far declined to issue any requirements for the social media influencers being paid to weigh in on politics. And Congress has only thrown its weight behind election laws related to AI this presidential cycle. With the 2024 election only two months away, influencers’ growing role in politics has been subject to little to no scrutiny – putting voters at risk for deception online and threatening overall electoral transparency.

At the DNC last week, at least 200 “content creators” with a “cumulative reach of 169 million people” descended upon Chicago for the Democratic National Convention, often to the frustration of members of traditional media organizations, who reportedly struggled to gain the same level of access to the party’s innermost circle. Gen Z content creators like Deja Foxx and Olivia Julianna delivered on-stage remarks. The DNC boasted to the press how it had amassed more than 30 million views through “partner-created content” on night one alone. And after days of the DNC rolling out the red carpet for content creators, with luxuries like free airfare and hotel rooms, tiki bar parties, and a lake cruise, a select few even interviewed Vice President Kamala Harris, who has not sat for an interview with journalists since launching her campaign.

Likewise, the Republicans credentialed at least 70 influencers for their convention in July, and gave a “behind-the-scenes tour” for a select 16 influencers at its primary debate last August. The Democratic super PAC Priorities USA also committed $75 million to develop relationships with influencers to help spread campaign messages on platforms like TikTok in the 2024 presidential election.

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But despite the emphasis political campaigns place on influencers, they remain subject to few rules. Recent congressional energy has mostly gone to bills banning deepfakes and requiring disclaimers on media “substantially generated by AI” in election campaigns. On the regulatory side, the FEC recently adopted new rules on “technological modernization,” albeit with no clarification on social media influencers. In a December letter, two Democratic FEC Commissioners, Ellen Weintraub and Shana Broussard, took aim at the Commission for missing “a golden opportunity” to update definitions that include “behind-the-scenes payments to social media influencers.”

“It is not the proliferation of these digital communications, but rather the lack of transparency that is the problem,” the letter says. “No one is seeking to impede influencers from communicating with their fans or to prevent political actors from capitalizing on those channels.” Rather, the commissioners are concerned with the public’s right to know who is being paid to spread a political message. Anticipating pushback, they cited a 2006 internet communications rulemaking that exempted blogs from having to disclose payments from political committees. “Each platform has its own algorithms that are designed to show users new content that they do not already follow,” the commissioners wrote, whereas the 2006 rationale was based on a website’s information being seen only by those who actively seek it out.

The commissioners also pointed to a Federal Trade Commission (FTC) rule that requires paid social media influencers to publicly disclose when they receive payment for a product they endorse. Audiences “should have a similar obligation to inform their audience when they try to sell the American public on a candidate,” the letter says. (Although this FTC rule exists, it’s rarely been enforced in the past. However, the agency has recently begun cracking down on the food industry and nutrition influencers, which serves as a warning shot for more aggressive enforcement.)

“Requiring people to disclose the money behind their political communications is at the heart of the FEC’s mission,” Commissioners Weintraub and Broussard wrote. “Disclaimers would enable consumers to fully understand and analyze the context of an influencer’s paid political content.” The final rules modernizing FEC rules to address technological advances went into effect on March 1, with no clarification on regulating social media influencers.

The failure of the FEC to issue rules around social media influencers appears to be out of step with public opinion. US voters overwhelmingly support (80%) requiring disclosures when an influencers’ paid-content endorses or promotes a candidate, according to a recent Tech Policy Press/YouGov poll. This remained consistent across party lines, with 56% of Democratic-leaning and 53% of Republican-leaning respondents strongly supporting these ad disclosures. The poll fielded responses from 1,161 voters and was conducted between July 24 to July 26, 2024.

Regulations Abroad

Content creators have played a large role in this year’s global elections. In India, social media influencers emerged as Prime Minister Narendra Modi’s “go-to campaign medium,” with political leaders appearing on popular YouTube channels. Although some within Modi’s camp have denied “really paying” influencers, at least one influencer detailed how he made around $1,400 for a package of videos that a Bharatiya Janata Party politician enlisted him to produce for a state election bid.

An April report by the International Institute for Democracy and Electoral Assistance (IDEA), a Stockholm-based intergovernmental organization that promotes democracy, which reviewed digital campaign finance oversight in India, identified third-party spending on digital campaigns as a threat to excessive influence in its elections. Despite the Election Commission of India (ECI) issuing guidelines and voluntary codes “aimed at promoting transparency and accountability” from political actors in digital campaigns” – a baseline the US has yet to establish – monitoring campaign money diverted to social media influencers has proved difficult. The report recommends that the ECI encourage political parties and candidates to comply with voluntary guidelines, pass legislation that mandates they disclose all online campaigning expenditures, and levy sanctions against violators.

For the past few years, the United Kingdom has been at least thinking about how Britain’s election finance laws should be applied to online influencers and what social media platforms’ roles are in enforcing them. In 2019, the Competition Markets Authority published compliance guidelines for content creators around endorsements on social media and consumer protection laws. Later, in 2021, a review by the Committee on Standards in Public Life on regulating election finance highlighted a roundtable by the Electoral Commission from the previous year, where a “strong case” was made by civil society and academics for compelling platforms to disclose information about activity on their platforms, particularly around social media influencers’ activity. But there’s much to still be done, as it wasn’t until 2021 that Britain’s parliament instituted a “digital imprint regime,” where paid-for advertising must explicitly disclose who is paying for the digital political material and on whose behalf they are promoting it.

France is much further ahead in supervising its influencer economy. In January 2023, the Minister of Economy, Finance, and Industrial and Digital Sovereignty launched a public consultation to gather input on rules to “protect both consumers and content creators” across themes like intellectual property and contractual obligations between brands and influencers. This came amid an investigation by the services of the Directorate-General for Competition, Consumer Affairs and Fraud Control (DGCCRF), which found that since 2021, about 60 percent of influencers had not complied with regulations on advertising and consumer rights. These deceptive commercial practices are punishable by up to two years imprisonment and up to €300,000 in fines, according to the authority. The French government later passed a law (no. 2023-451) aimed specifically at regulating commercial social media influencers, although there was no mention made of how to oversee influencers’ political activities.

The European Union is one of the only governmental bodies to explicitly acknowledge influencers’ growing roles in the political advertising space. This March, the European Council adopted a new rule on “the transparency and targeting of political advertising, aimed at countering information manipulation and foreign interference in elections.” In it, influencers are listed among the “political consultancies, advertising agencies, ‘ad-tech’ platforms,” and others who provide a “large, diversified and increasing number of services” associated with political advertising, such as product placements and endorsements. Failure to comply with the rule can lead to fines or periodic penalty payments at the discretion of a Member States’ authorities; the rule will go into full effect in fall 2025.

What’s Next?

It appears that governments are struggling to make a distinction between what influencer content is considered to be paid-for digital campaign advertising and whether creators must disclose online who paid for it. In the US, the FEC might at a minimum consider providing additional guidance that clarifies the responsibility of influencers and campaigns to be transparent about their financial relationships. This might create a path forward for a new set of draft rules on campaign finance and content creators that could include a public consultation period. With no political interest expressed so far, and with a revised set of FEC guidelines just issued, it doesn’t appear this will happen before the November elections.