Ecf 24

Case 1:18-cv-02527-PWG Document 24 Filed 09/12/18 Page 1 of 45
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
THE WASHINGTON POST, et al., *
Plaintiffs, *
v. * Civil Action No. 1:18-cv-02527-PWG
DAVID J. McMANUS, JR., et al., *

Defendants. *
* * * * * * * * * * * * * *
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
BRIAN E. FROSH
Attorney General of Maryland
JULIA DOYLE BERNHARDT

Federal Bar No. 25300
Andrea W. Trento
Assistant Attorneys General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
jbernhardt@oag.state.md.us
atrento@oag.state.md.us
(410) 576-7291
(410) 576-6955 (facsimile)
September 12, 2018 Attorneys for Defendants

TABLE OF CONTENTS
Page
BACKGROUND ................................................................................................................. 3
Already Existing Records, Reporting, and Disclosure Obligations ......................... 3
The 2016 Election..................................................................................................... 5
The Legislative History of the Act ........................................................................... 7
The Requirements of the Act.................................................................................... 9
Procedural History .................................................................................................. 12
ARGUMENT..................................................................................................................... 13
I. STANDARD .............................................................................................................. 13
II. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THEIR

CLAIMS. .................................................................................................................. 13
A. The Act is Subject to “Exacting Scrutiny”—a Form of Intermediate

Scrutiny Applicable to Election-Related Communications. ....................... 15
B. The Act’s Disclosure and Record-keeping Obligations Do Not Violate

the First Amendment. .................................................................................. 17
1. The Act’s Disclosure and Record-Keeping Duties Are

Substantially Related to Important Government Interests. .............. 17
2. The Act Does Not Burden More Speech Than Is Necessary. .......... 19
C. The Challenged Provisions are not Unconstitutionally Vague. .................. 23
1. Plaintiffs Lack Standing to Challenge the Definition of QPDC,

Which Is Not Vague. ........................................................................ 23
2. Online Publishers’ Duties Under the Act Are Not Vague. .............. 26
D. The Injunctive Remedies Authorized by the Act Are Not Unlawful

Prior Restraints. ........................................................................................... 28
E. The Act’s Record-Retention Requirements Do Not Give Rise to

Unlawful “Seizures.” ................................................................................... 30
F. The Act Is Not Preempted by the Communications Decency Act. ............. 32
III. THE OTHER FACTORS THAT WOULD SUPPORT INJUNCTIVE RELIEF ARE NOT
PRESENT. ................................................................................................................. 34
CONCLUSION ................................................................................................................. 35
ii
TABLE OF AUTHORITIES
Page
Cases
Arizona Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) ..................................................................................................... 15
Bartnicki v. Vopper, 532 U.S. 514 (2001) ......................................................................... 30
Buckley v. American Constitutional Law Found., Inc., 525 U.S. 182 (1999) ................... 15
Buckley v. Valeo, 424 U.S. 1, 64 (1976).......................................................... 15, 16, 17, 19
California Teachers Ass’n v. State Bd. of Educ.,

271 F.3d 1141 (9th Cir. 2001) ..................................................................................... 23
Center for Individual Freedom v. Madigan,

697 F.3d 464 (7th Cir. 2012) ....................................................................................... 18
Center for Individual Freedom, Inc. v. Tennant,

706 F.3d 270 (4th Cir. 2013) ........................................................................... 14, 15, 23
Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981) ..................................................................................................... 18
Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) .......................... passim
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) ........................................................ 31
Dahlstrom v. Sun-Times Media, LLC,

39 F. Supp. 3d 998 (N.D. Ill. 2014) ............................................................................. 30
Dahlstrom v. Sun-Times Media, LLC, No. 12 C 658,

2013 WL 6069267 (N.D. Ill. Nov. 18, 2013) .............................................................. 29
Davis v. Federal Election Comm’n, 554 U.S. 724 (2008) ................................................ 15
Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017) ................................................. 13, 34
Donovan v. Dewey, 452 U.S. 594 (1981) .......................................................................... 31
iii
Finkle v. Howard County, Md., No. CIV. SAG-13-3236,

2014 WL 6835628 (D. Md. Dec. 2, 2014) ................................................................... 28
Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................................................... 23
Griffin v. Bryant, 30 F. Supp. 3d 1139 (D.N.M. 2014) ..................................................... 29
Independence Inst. v. Federal Election Comm’n,

216 F. Supp. 3d 176 (D.D.C. 2016) ............................................................................. 19
Independence Inst. v. Williams, 812 F. 3d 787 (10th Cir. 2016) ....................................... 26
Iowa Right to Life Comm., Inc. v. Tooker, 133 F. Supp. 3d 1179 (S.D. Iowa 2015) ........ 30
John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ............................................................ 15, 16
Kenny v. Wilson, 885 F. 3d 280 (4th Cir. 2018) ................................................................ 24
LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261 (4th Cir. 2012) ......................... 32
McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) ........................ 16, 17, 18, 23
McCutcheon v. Federal Election Comm’n, 573 U.S. 185 (2014) ..................................... 18
National Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) ................................. 15
New York v. Burger, 482 U.S. 691 (1987)................................................................... 31, 32
New York v. Ferber, 458 U.S. 747 (1982) ......................................................................... 24
North Carolina Right to Life Comm. Fund for Indep. Political Expenditures v. Leake,
524 F. 3d 427 (4th Cir. 2008) ...................................................................................... 20
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations,

413 U.S. 376 (1973) ..................................................................................................... 29
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .............................................................. 16
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ...................................... 29
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489 (1982) ..................................................................................................... 24
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ..................................... 13, 35
iv
Worley v. Cruz-Bustillo, 717 F.3d 1238 (11th Cir. 2013) ................................................. 15
Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) ..................................... 33, 34
Constitutional Provisions
U.S. Const. amend I .................................................................................................... passim
U.S. Const. amend IV .............................................................................................. 2, 12, 13
U.S. Const. amend XIV ................................................................................................. 2, 12
Statutes
47 U.S.C. § 230 ................................................................................................................. 12
47 U.S.C. § 230(a)(3) ........................................................................................................ 33
47 U.S.C. § 230(b)(2) ........................................................................................................ 33
47 U.S.C. § 230(c)(1) ........................................................................................................ 32
2018 Md. Laws ch. 833 .............................................................................................. passim
2018 Md. Laws ch. 833, § 2 .............................................................................................. 12
Md. Code Ann., Elec. Law § 1-101(gg) (LexisNexis 2017) ............................................... 4
Md. Code Ann., Elec. Law § 1-101(h) (LexisNexis 2017) ................................................. 4
Md. Code Ann., Elec. Law § 1-101(k) (LexisNexis 2003) (rev. note) ............................. 25
Md. Code Ann., Elec. Law § 1-101(k)(1) (LexisNexis 2017) ............................................ 3
Md. Code Ann., Elec. Law § 2-102(b)(5) (LexisNexis 2017) ...................................... 4, 31
Md. Code Ann., Elec. Law § 13-221 (LexisNexis 2017) .................................................... 4
Md. Code Ann., Elec. Law § 13-221(a)(1) (LexisNexis 2017)........................................... 4
Md. Code Ann., Elec. Law § 13-304(b) (LexisNexis 2017) ............................................... 4
v
Md. Code Ann., Elec. Law § 13-306 (LexisNexis Supp. 2017) ..................................... 3, 4
Md. Code Ann., Elec. Law § 13-306(c) (LexisNexis 2017) ............................................... 4
Md. Code Ann., Elec. Law § 13-306(e) (LexisNexis 2017) ............................................... 4
Md. Code Ann., Elec. Law § 13-306(j) (LexisNexis 2017) ................................................ 4
Md. Code Ann., Elec. Law § 13-306(k) (LexisNexis 2017) ............................................... 4
Md. Code Ann., Elec. Law § 13-307 (LexisNexis Supp. 2017) ..................................... 3, 4
Md. Code Ann., Elec. Law § 13-307(c) (LexisNexis 2017) ............................................... 4
Md. Code Ann., Elec. Law § 13-307(e) (LexisNexis 2017) ............................................... 4
Md. Code Ann., Elec. Law § 13-307(m) (LexisNexis 2017) .............................................. 4
Md. Code Ann., Elec. Law § 13-401(a) (LexisNexis 2017) ............................................... 3
Md. Code Ann., Elec. Law § 13-401(a)(1)(i) (LexisNexis 2017) ....................................... 3
Md. Code Ann., Elec. Law § 13-401(a)(1)(ii) (LexisNexis 2017) ...................................... 3
Md. Code Ann., Elec. Law § 13-604(a)(2) (LexisNexis 2017)........................................... 4
Md. Code Ann., Elec. Law § 13-605(a) (LexisNexis 2017) ......................................... 5, 28
Md. Code Ann., Gen. Prov. § 1-210 (LexisNexis 2010) ................................................... 34
Regulations
47 C.F.R. § 73.943 ......................................................................................................... 6, 11
COMAR 33.02.02................................................................................................................ 4
COMAR 33.13.02.02C(6) ................................................................................................... 4
COMAR 33.13.06.06A ........................................................................................................ 4
vi
COMAR 33.13.06.06B ........................................................................................................ 4
COMAR 33.13.06.06C(1) ............................................................................................. 4, 31
COMAR 33.13.07.02 (2018) ............................................................................................... 3
Miscellaneous
C. Ali & J.F. Meils, GOP Senator: Maryland One of Three States Most Targeted
by Russian Ads in 2016, Delmarva Now, Nov. 2, 2017 ................................................ 7
David Zurawik, Amid Russian ads, bots, trolls:

Regulate Facebook, other platforms, or risk losing democracy,
Balt. Sun, Feb. 21, 2018 ................................................................................................. 1
Online Electioneering Transparency and Accountability Act: Hearing on H.B. 981

Before the H. Comm. on Ways & Means, 2018 Legis. Sess. (Md. Feb. 20, 2018)
............................................................................................................................... passim
Online Electioneering Transparency and Accountability Act: Hearing on S.B. 875

Before the S. Comm. on Educ., Health and Env’l Aff., 2018 Legis. Sess.
(Md. Mar. 1, 2018) ..................................................................................................... 7, 9
vii


Plaintiffs,
*
v.
* Civil Action No. 1:18-cv-02527-PWG
DAVID J. McMANUS, JR., et al.,
Defendants. *
*
* * * * * * * * * * * * * *
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION1
On February 21, 2018, The Baltimore Sun’s long-time TV/Media Critic, David
Zurawik, wrote a column excoriating politicians in Washington for failing to regulate
Facebook in the wake of reports about Russian-backed purchases of political advertising
and social media content on its platform, and Facebook’s alleged indifference to those
reports.2 “What if,” he asked rhetorically, “The Baltimore Sun or The Washington Post
had published such Russian-made ads or commentary and not disclosed the source in the
wake of the uprising after the death of Freddie Gray or down the homestretch of the
presidential election?” Id. Nothing short of “our democracy” was at stake. Id.
1
Defendants are the five members of the Maryland State Board of Elections (the
“State Board”) (David J. McManus, Jr., Patrick J. Hogan, Michael R. Cogan, Kelley A.
Howells, and Malcolm L. Funn), the State Administrator of Elections (Linda H. Lamone),
and the Attorney General of Maryland (Brian E. Frosh).
2
David Zurawik, Amid Russian ads, bots, trolls: Regulate Facebook, other
platforms, or risk losing democracy, Balt. Sun, Feb. 21, 2018, available at:
http://www.baltimoresun.com/entertainment/tv/z-on-tv-blog/bs-fe-zontv-facebook-
twitter-russia-mueller-20180220-story.html (last accessed Sept. 12, 2018).
On April 9, 2018, the Maryland General Assembly answered this call for reform,
and passed legislation to require Facebook and other “online platforms” to make precisely
the kinds of disclosures whose absences Mr. Zurawik lamented.3 But by necessity the Act
was not limited to Facebook because Russia’s election-related advertising activity in 2016
reportedly reached ad networks that serve ads to thousands of websites across the country,
including the websites of (at least) several of the plaintiffs in this case.
Unhappy that this “democracy-saving” regulation also applies to their platforms,
plaintiffs The Baltimore Sun, The Washington Post, and dozens of other regional
newspapers ask this Court to excuse them from the obligations of the Act. Plaintiffs argue
that the Act violates the First, Fourth, and Fourteenth Amendments to the United States
Constitution, and that the federal Communications Decency Act preempts its requirements.
For at least four reasons, this Court should reject these arguments and deny preliminary
injunctive relief. First, Plaintiffs apply the wrong constitutional standard in analyzing the
Act’s obligations. They ignore decades of Supreme Court precedent establishing that
disclosure and record-retention obligations in the context of paid political advertising
enhance, rather than curtail, political discourse. Second, in claiming that the Act is void
for vagueness, Plaintiffs misconstrue the Act’s requirements and purport to find a lack of
clarity where there is none. Third, by ignoring the State of Maryland’s long-standing
authority to regulate in this area, Plaintiffs have omitted important context in connection
3
See Online Electioneering Transparency and Accountability Act, 2018 Md. Laws
ch. 833 (the “Act”).
2
with their claims that the Act effects unlawful prior restraints and seizures. Fourth,
although Plaintiffs plead that they cannot be liable for the unlawful content placed by others
on their websites, the Act does not purport to impose that liability.
Plaintiffs are not likely to succeed on the merits of their claims, and the other
preliminary injunction factors of irreparable harm, the balance of equities, and the public
interest favor of the Defendants. Mr. Zurawik asked, “What if The Baltimore Sun or The
Washington Post had published such Russian-made ads . . . and not disclosed the source .
. . ?” The Court should deny Plaintiffs’ Motion so that the public does not have to find out.
BACKGROUND
Already Existing Records, Reporting, and Disclosure Obligations
Even before the passage of the Act, Maryland imposed disclosure, reporting, and
record-keeping obligations on persons engaged in campaign-related speech.
First, the State’s election law imposes disclosure obligations with regard to
“campaign material.” See Md. Code Ann., Elec. Law §§ 3-401(a)(1)(i) – (ii), 13-404
(LexisNexis 2017) (requiring “authority line” on “campaign material”); Code Md. Regs.
(“COMAR”) 33.13.07.02 (2018) (“electronic media”).4
Second, Maryland law imposes reporting obligations on “political committees,” see
Elec. Law § 13-304, and on individuals or other entities that are not classified as “political
committees,” but that make independent expenditures of $10,000 or more for campaign-
related “public communications” or “electioneering communications,” see Elec. Law §§
4
See Elec. Law § 1-101(k)(1) (defining “campaign material”).
3
13-306, 13-307 (LexisNexis Supp. 2017).5 Political committees must file with the State
Board detailed, periodic reports providing information regarding contributions received
and expenditures made during the reporting period. COMAR 33.13.02.02C(6); see Elec.
Law § 13-304(b); COMAR 33.02.02. Persons who are not “political committees” must
file a detailed report with the State Board within 48 hours of having made aggregate
independent expenditures of at least $10,000 for campaign-related “public
communications” or “electioneering communications” (“Independent Spenders”). Elec.
Law §§ 13-306(c), 13-307(c); see also id. §§ 13-306(e), 13-307(e) (detailing reporting
requirements). Independent Spenders must also include the information reported to the
State Board in any periodic report to donors, members or shareholders, and on its website
(if any), within 24 hours. Id. §§ 13-306(l), 13-307(l).
Finally, the law imposes record-keeping obligations on both political committees
and Independent Spenders. See id. §§ 13-221(a)(1), (b); COMAR 33.13.06.06A – B
(political committees); see also Elec. Law §§ 13-306(m), 13-307(m) (Independent
Spenders). The election law authorizes the State Board to audit the records retained under
§§ 13-221, 13-306, and 13-307, see id. § 2-102(b)(5); COMAR 33.13.06.06C(1) (“The
State Board may request to inspect and receive a copy of all account books and related
records of account book entries.”).
5
A “Political committee” is a “combination of two or more individuals that has as
its major purpose promoting the success or defeat of a candidate, political party, question,
or prospective question submitted to a vote at any election.” Elec. Law § 1-101(gg); see
also id. § 1-101(h) (defining “campaign finance entities” as “political committees”).
4
The Election Law Article imposes criminal and civil penalties for violations of these
provisions. See Elec. Law §§ 13-603, 13-604(a)(1) – (2). In addition, the Secretary of
State may seek an “injunction against any violation of this title.” Id. § 13-605(a).
The 2016 Election
The 2016 Presidential Election saw a precipitous rise in online ads as compared to
the prior presidential election cycle. Nationwide, approximately $1.4 billion was spent in
online political-related advertising—an eightfold increase over the amounts spent on online
political ads in 2012.6 During that same period, “TV political ad spending fell 20% and
radio political ad spending dropped 23%.”7 Moreover, the internet allowed for the
sophisticated targeting of advertising in a way that had not been seen before with regard to
traditional advertising media. Ad targeting tools made it possible to direct ads to
increasingly stratified sets of readers or viewers, at a fraction of the cost of traditional
broadcast or print advertising. Weiner & Vandewalker Testimony 2.
These developments have had the effect of undermining the traditional enforcement
tools available to regulators. In Maryland, as in many states, campaign finance
enforcement is driven by public complaints.8 Sometimes these complaints are lodged by
6
Before the H. Comm. on Ways & Means, 2018 Legis. Sess. (Md. Feb. 20, 2018) (Joint
Testimony of D. Weiner & I. Vandewalker, Senior Counsel, Brennan Ctr. for Justice)
(“Weiner & Vandewalker Testimony”)) [attached hereto as Ex. A]
7
(Testimony of B. Shear) (“Shear Testimony”)) [attached hereto as Ex. B]
8
5
private citizens who support an opposing candidate or question; sometimes they are
brought by an opposing campaign. Either way, the targeted delivery of ads over the
Internet has allowed advertisers with increasing precision to select their audience, so that
those who might have complained about an ad in the past are not even seeing that ad in the
present. Common Cause Testimony 1. Moreover, while federal law requires television
and radio broadcasters to make records relating to requests for broadcast time by candidates
or their agents public, see 47 C.F.R. § 73.943,9 there is no analog to these requirements for
online advertising. Thus, as political advertising moved online and away from broadcast
platforms, regulators’ ability to enforce campaign finance and disclosure laws diminished.
Meanwhile, as the 2016 election unfolded, the shift toward online advertising
revealed another vulnerability in regulatory enforcement: the susceptibility of online
advertising to untraceable foreign influence. Maryland was one of several states targeted
by Russian operatives who bought online ads and promoted content through fake accounts
pretending to be Americans. They crafted different messages for different audiences and
used leading online platforms’ sophisticated targeting tools so that their propaganda would
reach the most receptive audiences. See Weiner & Vandewalker Testimony 2.
This activity was pervasive. Investigations by Facebook, Twitter, and Google have
(Testimony of Common Cause Maryland) (“Common Cause Testimony”)) [attached

hereto as Ex. C].
9
Specifically, broadcasters are required to keep records “of all requests for
broadcast time made by or on behalf of a candidate for public office,” and, for all granted
requests, the “charges made,” the “schedule of time purchased, when spots actually aired,
the rates charged, and the classes of time purchased. 47 C.F.R. § 73.1943.
6
found Russian activity on each of these platforms. See Weiner & Vandewalker Testimony
2-3. But the full extent of this activity may never be known, including whether other sites
that host political advertisements were impacted by this conduct. Indeed, some of Google’s
impacted platforms included its DoubleClick ad network,10 which Plaintiffs concede places
advertisements on the websites of many of the plaintiffs in this action.11 According to some
reports, Maryland was one of the three most-targeted states by this Russian activity in the
2016 election, see Weiner & Vandewalker Testimony 2-3 (citing C. Ali & J.F. Meils, GOP
Senator: Maryland One of Three States Most Targeted by Russian Ads in 2016, Delmarva
Now, Nov. 2, 2017), and the intelligence community has warned that this year’s mid-term
elections are likely to be targeted as well, id. at 4.
The Legislative History of the Act
It was against this backdrop that the Act became law. In advancing this legislation,
the Act’s sponsors cited the revelations about Russian involvement in the 2016 election
that had recently come to light.12 But this was by no means the sole focus of the legislation.
10
See Natasha Lomas, Google’s Probe into Russian Disinformation Finds Ad Buys,
Report Claims, TechCrunch, Oct. 9, 2017, available at: https://techcrunch.com/2017/0/09/
googles-probe-into-russian-disinformation-finds-ad-busy-report-claims/ (last visited Sept.
12, 2018); Elizabeth Dwoskin et al., Google Uncovers Russian-Bought Ads on YouTube,
Gmail and Other Platforms, Wash. Post, Oct. 9, 2017, available at:
https://www.washingtonpost.com/news/the-switch/wp/2017/10/09/google-uncovers-
russian-bought-ads-on-youtube-gmail-and-other-platforms/?utm_term=.3380beb3a8e5
(last visited Sept. 12, 2018).
11
Before the S. Comm. On Educ., Health & Env’l Affairs, 2018 Leg. Sess. (Md. Mar. 1,
2018) (Testimony of Rebecca Snyder, Exec. Dir., MDDC Press Ass’n) (“Snyder
Testimony”) [attached hereto as Ex. D].
12
Indeed, this attention was not surprising given that just prior to hearings on the
7
In hearings regarding the proposed legislation, witness after witness testified to the need to
modernize the regulatory environment to reflect the degree to which political advertising
now occurs online, outside of the reach of significant regulatory oversight. Bradley S.
Shear, an attorney who specializes in social media law, noted that he had been working
with the State Board since 2010 to regulate online political advertising, and that “while
television, radio and print mediums must follow strict guidelines . . . to ensure the public
knows who is responsible for the political ads they see, social media companies and the
digital advertising industry do not have to follow the same rules.” Shear Testimony 1.
Common Cause Maryland noted that while the “complete effects of unregulated social
media electioneering in the 2016 election is still unknown,” what was known was that “both
unethical domestic campaigns and hostile foreign campaigns used social media to spread
thousands of news stories designed to dupe Americans and depress participation in our
elections.” Common Cause Maryland Testimony 1 (emphasis added). The League of
Women voters noted that “this legislation is aimed at updating our current laws, many of
which were written when campaign material was primarily in print form,” and that
“providing more transparency in on-line campaigning such as Facebook ads, Twitter Posts
or websites is in order.”13 Get Money Out, an organization dedicated to “the goal that all
companion bills in the Senate and House of Delegates, special counsel Robert S. Mueller
indicted 13 Russian nationals and three Russian entities for operating a social media troll
farm to meddle in the 2016 election, in violation of federal law. Weiner & Vandewalker
Testimony 3.
13
Online Electioneering Transparency and Accountability Act: Hearing on H.B.
981 Before the H. Comm. on Ways & Means, 2018 Legis. Sess. (Md. Feb. 20, 2018)
(Testimony of E. Apter & R. Willson, Co-Presidents, League of Women Voters of
8
citizens should have equal access to the ballot and an equal say in governance,” testified
that the bill “would close important gaps in the existing disclosure requirements,” including
a “critical loophole” pursuant to which, under the then-current statutory regime, the
definitions of “electioneering communication” and “public communication” did not
expressly include digital advertisements.14
The legislative history also made clear that potentially Plaintiffs’ own properties
were impacted by Russian involvement in the 2016 elections. Google revealed that its
DoubleClick ad network was victimized by Russian attacks, and the Plaintiff MDDC Press
Association testified that some of its members “use targeting offered by industry software
platforms such as DoubleClick.” Snyder Testimony 1.
The Requirements of the Act
In relevant part, the Act extends disclosure and record retention obligations relating
to campaign-related paid advertisements—defined in the Act as “qualifying paid digital
communications” (or “QPDCs”)15—for the first time to “online platforms,” which are
defined as any “public-facing website, web application, or digital application, including a
social network, ad network or search engine,” that generally have 100,000 or more unique
Maryland, Inc.) (“LWV Testimony”) (emphasis added) [attached hereto as Ex. E].
14
Before the S. Comm. on Educ., Health & Env’l Affairs, 2018 Legis. Sess. (Md. Mar. 1,
2018) (Testimony of Get Money Out Maryland) (“GMO Testimony”) [attached hereto as
Ex. F].
15
Specifically, a “qualifying paid digital communication” is “any electronic
communication that: (1) is campaign material; (2) is placed or promoted for a fee on an
online platform; (3) is disseminated to 500 or more individuals; and (4) does not propose
a commercial transaction.” Elec. Law § 1-101(ll-1).
9
monthly United States visitors or users and accepts such communications for advertisement
on its platform. 2018 Md. Laws ch. 833 (adding Elec. Law § 1-101(dd-1)).
An online platform that accepts political advertising must post on its website, in
machine-readable format: (1) the name and contact information of the person purchasing
the QPDC; (2) the identity of the treasurer of the political committee (if applicable) or the
individuals exercising direction or control over the activities of the purchaser (if
applicable); and (3) the total amount paid by the purchaser for the placement of the QPDC.
Id. (adding Elec. Law §§ 13-405(b)(1), 13-405(b)(6)(i) – (ii)). For QPDCs placed by an
ad network, the online platform must provide contact information for the ad network or a
hyperlink to the ad network’s website where the contact information is located. Id. (adding
Elec. Law § 13-405(b)(6)(iii)). The records must be posted “within 48 hours after [the
QPDC] is purchased” and must remain available for at least one year following the next
general election. Id. (adding Elec. Law § 13-405(b)(3)).
Online platforms’ obligations under the Act are triggered by notice that the ad is a
QPDC. Id. (adding) Elec. Law §13-405(a)(1). The purchaser (or ad network) placing the
ad must provide that notice to the online platform together with the information necessary
to comply with the disclosure obligations set forth above, id. (adding Elec. Law § 13-
405(d)(1)). In turn, online platforms are entitled to “rely in good faith on the information
provided by a purchaser of a [QPDC] to comply with” those obligations. Id. (adding Elec.
Law § 13-405(d)(2)).
Online platforms are also required to retain certain information that the person or ad
network purchasing or placing the QPDC is required to provide. See Id. (adding Elec. Law
10
§§ 13-405(c), 13-405(d)(1)). This information includes: (1) the candidate or ballot issue
to which the QPDC relates, and whether the QPDC is supportive or in opposition thereto;
(2) the dates and times the QPDC was first and last disseminated; (3) an “approximate
description of the geographic locations” where the QPDC was disseminated; (4) an
“approximate description of the audience that received or was targeted to receive” the
QPDC; and (5) the total number of impressions generated by the QPDC. Id. (adding Elec.
Law § 13-405(c)(3)). These records must be retained for at least one year following the
next general election, and “shall be made available on the request of the State Board” within
48 hours after the QPDC is first disseminated. Id. (adding Elec. Law § 13-405(c)(2)).16
Together, these provisions align the disclosure and retention obligations now applicable to
“online platforms,” with those to which radio and television broadcasters are already
subject. Compare 47 C.F.R. § 73.943 (obligations for radio and television broadcasters).
The Act also authorizes the State Administrator to investigate potential violations
of these provisions by a purchaser of a QPDC. 2018 Md. Laws ch. 833 (adding Elec. Law
§ 13-405.1(a)). Following an investigation, the State Administrator may request that the
Attorney General institute an action for injunctive relief to require a purchaser to comply
with these provisions, or to “require an online platform to remove a [QPDC] that does not”
comply with § 13-401 or § 13-405. Id. (adding Elec. Law §§ 13-405.1(b)(1), (b)(3)
(injunction may be entered only if violation shown “by clear and convincing evidence”)).17
16
Online platforms must also make “reasonable efforts to allow the State Board” to
obtain this information. 2018 Md. Laws ch. 833 (adding Elec. Law § 13-405(e)).
17
Before making a request that the Attorney General institute an action, the State
11
Finally, the Act forbids the purchase or sale of campaign material or an
electioneering communication using any currency other than United States currency. 2018
Md. Laws ch. 833 (adding Elec. Law § 13-405.2(b) – (c)).
Procedural History
The Act was passed in early April 2018, see 2018 Md. Laws ch. 833, and became
law on May 25, 2018 without the Governor’s signature. The law took effect on July 1,
2018. Id. § 2. On August 17, 2018, Plaintiffs filed this action.
In their Complaint for Declaratory and Injunctive Relief (the “Compl.”), Plaintiffs
asserted challenges to several provisions of the Act under the First, Fourth and Fourteenth
Amendments to the United States Constitution as well as the Communications Decency
Act of 1996, 47 U.S.C. § 230 (the “CDA”). Plaintiffs alleged that the Act’s disclosure
obligations constitute compelled speech that violates the First Amendment on its face, and
fails the “strict scrutiny” test of furthering the compelling government interest of “limiting
foreign (especially Russian) online speech in our elections” via the least restrictive means.
See Compl. ¶¶ 3-8, 85a-85b. Next, they contended that even if these core constitutional
problems could be overcome, several specific provisions of the Act are constitutionally
defective in that (i) they are “vague and overbroad” and thus subject Plaintiffs to
punishment without due process of law, (ii) authorize the Attorney General to seek
unlawful “prior restraints” in the form of injunctions to require the removal of non-
Board must provide the purchaser with a reasonable opportunity to be heard at a public
meeting of the State Board. 2018 Md. Laws ch. 833 (adding Elec. Law § 13-405.1(b)(2)).
12
complaint advertisements, and (iii) require online platforms to make certain records
available upon the request of the State Board in violation of the Fourth Amendment. Id.
¶¶ 9-12, 85c-e. Finally, Plaintiffs asserted that, apart from these constitutional defects, the
Act violates the CDA because it purports to impose liability on online platforms for the
content of third parties appearing on those sites. Plaintiffs sought declaratory and
injunctive relief, and moved for a preliminary injunction against enforcement of the Act.
ARGUMENT
I. STANDARD
A plaintiff seeking a preliminary injunction must demonstrate “that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Plaintiffs have failed to
establish each of these required elements.
II. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THEIR

CLAIMS.
Plaintiffs ask this Court to ignore decades of Supreme Court precedent and treat the
Act’s obligations as compelled speech subject to the familiar strict scrutiny rubric. See
Pls.’ Mem. 14-23. To the contrary, because disclosure requirements in the context of paid
political advertisements enhance political discourse by providing more information to
voters, the Supreme Court applies an intermediate level scrutiny and upholds disclosure
requirements that bear a “substantial relation” to an “important government interest.”
13
Citizens United v. Federal Election Comm’n, 558 U.S. 310, 366-67 (2010). The
requirements imposed by the Act satisfy this test.
Plaintiffs’ challenges to various provisions of the Act on the ground that they are
unconstitutionally vague, see Pls.’ Mem. 23-25, fail for two reasons. First, they lack
standing to challenge the definition of a QPDC because it does not implicate their
obligations as “online platforms” under the Act (and it is not vague in any event). And
second, the provisions that do govern their obligations are not vague because they “give
the person of ordinary intelligence a reasonable opportunity to know what is” required.
Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 286 (4th Cir. 2013).
Plaintiffs’ challenges to the injunctive remedies and record-retention provisions of
the Act also fail. See Pls.’ Mem. 25-28. The Attorney General’s authority to seek an
injunction requiring online platforms to remove non-complaint QPDCs enhances speech
by facilitating enforcement of the Act’s political advertising disclosure obligations, and
thus should not be evaluated as a traditional “prior restraint.” And the fact that the State
Board for years has conducted audits-on-request of the records retained by political
committees and Independent Speakers under existing campaign finance law shows this to
be a “closely regulated” field for which traditional “search-and-seizure” analysis under the
Fourth Amendment does not apply.
Finally, the Act is not preempted by the federal CDA, because the Act does not
regulate online platforms “as publishers or speakers” of content supplied by third parties,
but rather imposes distinct obligations on online platforms relating to that content.
14
Moreover, the CDA is a poor fit for this case, because applying it to preempt the Act’s
regulation of online platforms would be inconsistent with its animating principles.
A. The Act is Subject to “Exacting Scrutiny”—a Form of

Intermediate Scrutiny Applicable to Election-Related
Communications.
“Although the Supreme Court typically applies strict scrutiny to content-based
speech restrictions, disclosure and disclaimer requirements” in the elections context “are
subject to exacting scrutiny.” Tennant, 706 F.3d at 287 (internal citation omitted; citing
Citizens United, 558 U.S. at 366-67); see also National Org. for Marriage v. McKee, 649
F.3d 34, 55-56 (1st Cir. 2011) (applying exacting scrutiny to “maintenance and disclosure”
requirements relating to political spending).18 This is a distinctly “lower level of scrutiny”
than is applicable to restrictions on political expenditures as well as to content-based speech
restrictions more generally. Arizona Free Enter. Club’s Freedom Club PAC v. Bennett,
564 U.S. 721, 735 (2011); Worley v. Cruz-Bustillo, 717 F.3d 1238, 1242 (11th Cir. 2013).
“Exacting scrutiny” demands neither a “compelling” governmental interest nor “narrow
tailoring.” Instead, disclosure laws are constitutional so long as there is a “‘relevant
correlation’ or ‘substantial relation’” between the requirement and a “sufficiently
18
See also Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam) (“Since NAACP v.
Alabama [357 U.S. 449 (1958),] we have required that the subordinating interests of the
State [offered to justify compelled disclosure] survive exacting scrutiny”); John Doe No. 1
v. Reed, 561 U.S. 186, 196 (2010) (Court reviews First Amendment challenges to
disclosure requirements in the electoral context under “exacting scrutiny”); Davis v.
Federal Election Comm’n, 554 U.S. 724, 745 (2008) (governmental interest in disclosure
“ ‘must survive exacting scrutiny’” (quoting Buckley, 424 U.S. at 64); Buckley v. American
Constitutional Law Found., Inc., 525 U.S. 182, 204 (1999) (finding that disclosure rules
“fail[ed] exacting scrutiny” (internal quotation marks omitted)).
15
important” government interest. John Doe No. I, 561 U.S. at 196; Citizens United, 558
U.S. at 366-367; Buckley, 424 U.S. at 64, 66; compare Reed v. Town of Gilbert, 135 S. Ct.
2218, 2227 (2015) (strict scrutiny review examines whether regulation “furthers a
compelling interest” and is “narrowly tailored to achieve that interest”). As the Supreme
Court has explained, “[D]isclosure requirements may burden the ability to speak, but they
. . . do not prevent anyone from speaking.” Citizens United, 558 U.S. at 366 (internal
quotation marks and citations omitted). Disclosure is thus a “less restrictive alternative to
more comprehensive regulations of speech.” Id. at 369. Indeed, disclosure provides the
public with more information, which voters can use to “make informed choices in the
political marketplace.” McConnell v. Federal Election Comm’n, 540 U.S. 93, 197 (2003),
overruled on other grounds by Citizens United, 558 U.S. at 365.19
The disclosure and record retention obligations applicable to “online platforms”
under the Act fall squarely within the scope of these precedents. In requiring online
platforms to disclose and preserve certain information, the Act imposes the kind of
disclosure obligations that the Supreme Court upheld in Citizens United. See 558 U.S. at
366 (evaluating disclosure and reporting obligations applicable to “televised electioneering
communications funded by anyone other than a candidate”). Plaintiffs imply that the
intermediate scrutiny applicable to disclosure obligations under Citizens United extends
only to “speakers of election-related speech,” and not third-party publishers of campaign
19
“[T]he right of citizens to inquire, to hear, to speak, and to use information to
reach consensus is a precondition to enlightened self-government and a necessary means
to protect it.” Citizens United, 558 U.S. at 23.
16
advertisements. Pls.’ Mem. 17 (emphasis in original). But nothing in Citizens United or
its forebears supports that limitation. In Buckley v. Valeo, the Court explained that
disclosure could be justified by an interest in “provid[ing] the electorate with information”
about sources of election-related spending. 424 U.S. at 66. The presence of that justifying
interest does not depend on whether the person required to make the disclosure is the person
who made the expenditure or who received it.20
In any event, by choosing to accept and publish political advertisements, Plaintiffs
themselves are engaging in affirmative speech that may permissibly be regulated under the
foregoing precedents. Pls.’ Mem. 3. To the extent that Plaintiffs exercise their editorial
independence to accept and publish political advertisements, they may lawfully be subject
to disclosure obligations and other political content-related regulation.
B. The Act’s Disclosure and Record-keeping Obligations Do Not

Violate the First Amendment.
1. The Act’s Disclosure and Record-Keeping Duties Are

Substantially Related to Important Government Interests.
The Supreme Court has identified several “important state interests” sufficient to
support disclosure laws: “providing the electorate with information, deterring actual
corruption and avoiding any appearance thereof, and gathering the data necessary to
enforce more substantive electioneering restrictions.” McConnell, 540 U.S. at 196. The
obligations under the Act are substantially related to each of these important interests.
First, the disclosure obligations of the Act are substantially related to the State’s
20
Moreover, as Plaintiffs concede, third party publishers are required to disclose
certain information in the context or radio and television political ads. See Pls.’ Mem. 17.
17
interest in providing the electorate with information regarding “the sources of election-
related spending.” McCutcheon v. Fed. Election Comm’n, 573 U.S. 185, 223 (2014). The
Act requires disclosure of the identity of the purchaser and the amount paid for the QPDC.
In Citizens United, the Supreme Court upheld federal requirements that a person who
spends more than $10,000 on electioneering communications in a calendar year “identify
the person making the expenditure, the amount of the expenditure, the election to which
the communication was directed, and the names of certain contributors.” Citizens United,
558 U.S. at 366. The Court held that the public’s informational interest “alone . . . [was]
sufficient to justify” the disclosure requirement. Id. at 369. Disclosure also fulfills the
public’s interest “in knowing who is speaking about a candidate,” which “enables the
electorate to make informed decisions and give proper weight to different speakers and
messages.” Citizens United, 558 U.S. at 369, 371. Because election-related speech is often
made through organizations that “conceal the true identity of the source” of their funding,
Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 298 (1981), “only
disclosure of the sources of [such organizations’] funding may enable the electorate to
ascertain the identities of the real speakers,” Ctr. for Individual Freedom v. Madigan, 697
F.3d 464, 481 (7th Cir. 2012). Here, the Act informs the public by requiring those
“attempting to influence … elections to ‘disclose their identity and efforts in a manner that
allows voters to evaluate and measure the statements made by and interests of those third
parties[.]’” McConnell, 540 U.S. at 198.
Second, the disclosure obligations are substantially related to the State’s interest in
deterring corruption. Disclosure can “deter actual corruption and avoid the appearance of
18
corruption by exposing large contributions and expenditures to the light of publicity.”
Buckley, 424 U.S. at 67. “Arming voters with information about ‘a candidate’s most
generous supporters,’ whether direct or indirect, makes it easier ‘to detect any post-election
special favors that may be given in return.’” Independence Inst. v. Federal Election
Comm’n, 216 F. Supp. 3d 176, 192 (D.D.C. 2016), aff’d, 137 S. Ct. 1204 (2017). The
disclosure of information regarding QPDCs furthers these interests of deterring corruption.
Third, both the Act’s disclosure and its record retention obligations are substantially
related to the interest of enforcing more substantive electioneering restrictions—
particularly, restrictions on expenditures by foreign nationals. Disclosures regarding the
identities of purchasers of and amounts paid for QPDCs help “to enforce existing
regulations and to ensure that foreign nationals or foreign governments do not seek to
influence United States’ elections.” Independence Inst., 216 F. Supp. 3d at 191. Indeed,
the Supreme Court has held that “recordkeeping, reporting, and disclosure requirements
are an essential means of gathering the data necessary to detect violations of the
contribution limitations.” Buckley, 424 U.S. at 67-68. Here, the legislative history makes
clear that the Act was intended in part to provide additional tools to regulators to deter
unlawful foreign expenditures on electoral advertisements on online forums in Maryland.
2. The Act Does Not Burden More Speech Than Is Necessary.
Plaintiffs first contend that accomplishing the State’s goals does not “require[]
imposing [the Act’s] regulations on publishers of online political ads, rather than just on
the candidates and campaigns.” Pls.’ Mem. 19. But in the interests of enhancing the
public’s access to the information subject to disclosure, Maryland can reasonably seek to
19
require disclosure to be made at the point of publication as opposed to requiring the viewer
to navigate to the State Board’s or another entity’s website. And Maryland can reasonably
require online platforms to retain information regarding the QPDCs they publish, because
that enhances the State’s ability to enforce the substantive requirements of campaign
finance regulation. The identities of the foreign entities unlawfully placing digital political
ads in the run-up to the 2016 election in Maryland—indeed, even the unlawful nature of
those ads—were not known until months later. Requiring persons placing QPDCs to
communicate information about those QPDCs to the online platforms that host them, and
requiring those online platforms to retain that information, provides regulators with a
known entity from whom to seek such information in the event that questions should
arise.21 These obligations are “substantially related” to the important governmental
interests of public disclosure and enforcing more substantive campaign finance regulations.
“Because narrow tailoring is not required, the state need not show that the Act achieves its
purposes in the least restrictive means possible.” N.C. Right to Life Comm. Fund for Indep.
Political Expenditures v. Leake, 524 F. 3d 427, 439 (4th Cir. 2008).
Plaintiffs also question why the Act needs to encompass “the websites of
newspapers,” when “the problem the law is trying to address centers on the use of large
social-media or search-engine platforms like Facebook, Google, or YouTube as conduits
21
This same rationale undercuts Plaintiffs’ assertion that “requir[ing] online
publishers to backstop” publishers’ “self-reporting requirements” would be both overbroad
and ineffectual. See Pls.’ Mem. 19-20. These requirements facilitate enforcement by
making non-compliant political ads easier to identify.
20
for foreign governments—especially Russia—to disseminate fake political speech, both
paid and unpaid.” Pls.’ Mem. 20. But as the legislative history makes clear, the problem
of unchecked foreign influence was not the only issue the Act sought to address. Sponsors
and supporters also sought to modernize the campaign finance laws to encompass paid
communications on the internet as well as to make information about political ads and their
sources more directly available to the public.
And even if viewed solely in the context of Facebook, Google, or YouTube being
used “as conduits for foreign governments,” Google’s DoubleClick ad network was
impacted by the Russian incursions in 2016, and the legislative record reflects that several
of the Plaintiffs utilize that program to facilitate their hosting of online ads.22 The inclusion
within the scope of the Act of online platforms that may host ads served by ad networks
such as Google’s DoubleClick was substantially related to the Act’s goals of addressing
the problem of Russian ad purchases through Google, Facebook, and Twitter.
Finally, Plaintiffs suggest that the burdensome nature of the Act’s obligations is
fatal to its constitutionality, because these obligations are likely to have the effect of
chilling speech. Pls.’ Mem. 21-22. According to Plaintiffs, collating existing information,
collecting additional information, “and maintaining it so that it could be inspected by the
State Board of Elections within 48 hours . . . will require manual collation, the development
22
Moreover, Google’s DoubleClick program is not the only ad network in operation.
See https://en.wikipedia.org/wiki/Advertising_network.htm. Other ad networks utilized by
the Plaintiffs may not have had occasion to investigate whether their networks were
infiltrated with Russian-bought political ads in 2016.
21
of new internal processes, and the allocation of significant staff resources.” Id. But this
alleged burden ignores that all of the information that online platforms must either disclose
or retain is required to be provided by the purchaser placing the ad. See 2018 Md. Laws
ch. 833 (adding Elec. Law § 13-405(d)(1) (A QPDC purchaser “shall provide the online
platform. . . with the information necessary . . . to comply with subsections (b) and (c) of
this title.”)). Moreover, “[a]n online platform may rely in good faith” on the information
provided by the purchaser to comply with its obligations. Id. (adding § 13-405(d)(2)).
Thus, if the purchaser of the ad does not provide notice that it is placing a QPDC,
then under the plain terms of the Act none of the disclosure or retention obligations will
attach. Id. (adding Elec. Law §§ 13-405(a)(1), (c)(1), (d)(2)). Of course, online platforms
must work with purchasers to obtain the information in question, but assertions by some of
the Plaintiffs that they will need to establish new data collection processes or obtain new
software in order to comply with the Act, see Decl. of R. Snyder in Support of Pls.’ Mot.
for Prelim. Inj. ¶ 11, are without foundation in the law.
Otherwise, Plaintiffs’ burdens are minimal under the Act. They must (i) establish a
clearly identified web-page to host the information (provided by purchasers) that they are
required to disclose; (ii) create a template for a machine-readable table containing the
information (provided by purchasers) to be disclosed on the web-page; and (iii) establish a
retention schedule and a process for retaining the information (provided by purchasers)
they are required to retain under the Act. In fact, once these templates and processes are
established, compliance with the Act’s requirements should involve de minimis resources.
22
In sum, the obligations imposed on online platforms bear a substantial relationship
to sufficiently important goals of “providing the electorate with information, deterring
actual corruption and avoiding any appearance thereof, and gathering the data necessary to
enforce more substantive electioneering restrictions.” McConnell, 540 U.S. at 196. The
Act does not violate Plaintiffs’ rights under the First and Fourteenth Amendments.
C. The Challenged Provisions are not Unconstitutionally Vague.
Plaintiffs’ vagueness challenges to several distinct provisions of the Act also lack
merit. “[S]tatutes are unconstitutionally vague when they fail to ‘give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited.’” Tennant, 706
F.3d at 286 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). But “perfect
clarity is not required even when a law regulates protected speech.” Cal. Teachers Ass’n v.
State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir. 2001). Here, none of the challenged
provisions is unconstitutionally vague.23
1. Plaintiffs Lack Standing to Challenge the Definition of QPDC,

Which Is Not Vague.
Plaintiffs first contend that the Act’s definition of a QPDC is both vague in its scope,
see Pls.’ Mem. 23 (“any paid ad that touches in any fashion on a topic at issue in an
upcoming contested election”), and confusingly circular, see id. (a QPDC “is defined as,
inter alia, ‘campaign material,’ but ‘campaign material’ is defined to include a” QPDC).
23
To the extent the Court should find that any of these challenged provisions are
unconstitutionally vague, they are likely subject to “reasonable and readily apparent”
narrowing interpretations that would cure any constitutional defect.” Boos v. Barry, 485
U.S. 312, 330-31 (1988) (federal courts may adopt narrowing construction of state statute
if “such a construction is reasonable and readily apparent”).
23
At the outset, Plaintiffs lack standing to challenge the definition of QPDC. Plaintiffs
allege that the Act is vague as to “the duties it imposes on online publishers,” because, in
relevant part, “the Act defines what type of ad triggers its obligation in incredibly broad
terms.” Pls.’ Mem. 22, 23. But, importantly, Plaintiffs’ obligations under the Act are not
triggered by whether an ad qualifies as a QPDC, but rather by whether Plaintiffs are given
notice by a purchaser that an ad is a QPDC. See 2018 Md. Laws ch. 833 (adding Elec. Law
§ 13-405(a)(1)). At no point does the definition of QPDC factor into whether Plaintiffs’
obligations are “triggered”; the determination of whether an ad is a QPDC is entirely the
purchaser’s to make. In general, a person lacks standing to challenge the constitutionality
of an act on the basis that it may be unconstitutionally vague as to the conduct of others.
Cf. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)
(“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of others.”).24 Here, the alleged
vagueness of the definition of a QPDC imposes no ongoing or future risk of injury in fact
on Plaintiffs. See Kenny v. Wilson, 885 F. 3d 280, 287 (4th Cir. 2018) (plaintiffs seeking
24
While the Supreme Court has carved out an exception to this rule for First
Amendment challenges, that exception “is predicated on” the concern that “persons whose
expression is constitutionally protected may well refrain from exercising their rights for
fear of criminal sanctions by a statute susceptible of application to protected expression.”
New York v. Ferber, 458 U.S. 747, 768-69 (1982) (citation omitted). Plaintiffs’ vagueness
challenge is predicated on the notion that Plaintiffs cannot know “what type of ad triggers
[the Act’s] obligations.” Pls.’ Mem. 23, 25 (“online publishers, unclear about what the Act
requires of them, will decide that accepting the kind of ads subject to the Act is no longer
worth the trouble”). Since they have no responsibility under the Act for making that
determination, they lack standing to challenge it as vague.
24
declaratory and injunctive relief “must establish an ongoing or future injury in fact”).
Even if Plaintiffs did have standing, the definition of QPDC is not unconstitutionally
vague. A QPDC is defined as an electronic communication that: “(1) is campaign material;
(2) is placed or promoted for a fee on an online platform; (3) is disseminated to 500 or
more individuals; and (4) does not propose a commercial transaction.” 2018 Md. Laws ch.
833 (adding Elec. Law. § 1-101(ll-1) (emphasis added)). “Campaign material,” in turn, is
defined as “any material that (i) contains text, graphics, or other images; (ii) relates to a
candidate, a prospective candidate, or the approval or rejection of a question or
prospective question; and (iii) is published, distributed, or disseminated.” Id. (adding Elec.
Law § 1-101(k)(1)) (emphasis added).25 Plaintiffs contend that this definition could
encompass “any paid ad that touches in any fashion on a topic at issue in an upcoming
contested election,” Pls.’ Mem. 23, but that is not correct. The ad must relate to a candidate
or prospective candidate or the approval or rejection of a ballot question. In Citizens
United, the Supreme Court upheld federal disclosure obligations triggered, in relevant part,
by a broadcast, cable or satellite communication that “refers” to a candidate for federal
office. 558 U.S. at 321, 371. In language that is equally applicable to the statute in this
case, the Court reasoned that “the public has an interest in knowing who is speaking about
a candidate shortly before an election.” Id. at 369; see id. at 368-69 (rejecting argument
that disclosure obligations should be triggered solely when communications engage in
25
This definition has been in effect, in substantively the same form, since 2002, see
Md. Code Ann., Elec. Law § 1-101(k) (LexisNexis 2003) (rev. note), and its
constitutionality has not been challenged in a reported decision during that period.
25
“express advocacy and its functional equivalent”); see also Independence Inst. v. Williams,
812 F. 3d 787, 796 (10th Cir. 2016) (rejecting argument that disclosure obligations should
be triggered solely for “campaign-related issue speech” because “[a]n advertisement
purporting merely to discuss an issue, while incidentally mentioning a candidate, can
nonetheless be construed as ‘relating to’ the candidate’s campaign”). A person of ordinary
intelligence can discern when an ad relates to a candidate or ballot question.26
2. Online Publishers’ Duties Under the Act Are Not Vague.
Under the Act, online platforms are required to make certain information (again,
provided by purchasers) available to the State Board upon request within 48 hours after a
QPDC is first disseminated. See 2018 Md. Laws ch. 833 (adding Elec. Law § 13-405(c)).
Plaintiffs claim that these obligations are vague because, in some instances, that
information “will not exist yet” by that time. Pls.’ Mem. 23-24. But at any given point in
time a QPDC will have a date and time of first and last dissemination as well as a total
number of impressions—even if that data continues to change as the QPDC remains posted
on the online platform. There is nothing vague or confusing about this requirement.
Nor is the allocation of responsibilities between purchasers and online platforms
difficult to understand. See Pls.’ Mem. 24. The Act imposes disclosure and record
26
Nor is the definition “circular.” It is true that the definitions of QPDC and
“campaign material” refer to each other, see Mem. 23, but it is clear from the context that
QPDC is included in the definition of “campaign material” for illustrative purposes. See
Elec. Law § 1-101(k) (subsection (k)(1) providing what the term means, and subsection
(k)(2) identifying the kinds of items it “includes”). In any event, “there is nothing
inherently vague about definitions referring to one another.” Montanans for Cmty. Dev. v.
Mangan, No. 16-35997, 2018 WL 2308760, at *2 (9th Cir. May 22, 2018).
26
retention obligations on online platforms, but in all cases the information required to be
disclosed or retained must be provided by purchasers, see 2018 Md. Laws ch. 833 (adding
Elec. Law § 13-405(d)(1)), and online platforms are entitled to rely in good faith on the
information supplied by purchasers in fulfilling their disclosure and retention obligations,
see id. (adding § 13-405(d)(2)). Plaintiffs assert that the Act “does not explain how
advertisers are supposed to provide information like the number of impressions, geographic
targets, date first and last disseminated, etc.,” Pls.’ Mem. 24 (emphasis added), but fail to
explain why this makes the statute vague.27
Finally, Plaintiffs take issue with provisions in the Act requiring that they make
“reasonable efforts” to comply with a subpoena or allow the State Board to obtain the
information they are required to disclose or maintain under the Act. See 2018 Md. Laws
ch. 833 (adding Elec. Law §§ 13-405(e), (f)); Pls.’ Mem. 24. In both cases, the “reasonable
efforts” provisions restate obligations Plaintiffs already have under the law. For example,
a subpoena is compulsory, unless a valid and properly interposed objection causes it to be
quashed or modified by the issuing court. See Fed. R. Civ. P. 45(e); Fed. R. Crim. P. 17(c);
Md. Rules 2-510, 4-266. Requiring online platforms to make “reasonable efforts” to
comply with subpoenas falling within the scope of § 13-405(f) imposes nothing more than
27
It certainly does not, as Plaintiffs suggest, “effectively impos[e] that [disclosure
and retention] burden on the online platforms.” Pls.’ Mem. 24. In any event, under the
Act the information regarding the “geographic distribution” of the QPDC need only be
“approximate,” 2018 Md. Laws ch. 833 (adding Elec. Law § 13-405(c)(iv)), and Plaintiffs
themselves acknowledge that the “number of impressions” are the basis on which paid
digital content is purchased. E.g., Davey Decl. ¶ 6. Purchasers are likely to have access
to such information so as to be able to provide it to online platforms that host their QPDCs.
27
what online platforms are already required to do.28 Similarly, online platforms are required
under the Act to disclose or retain and make available to the State Board certain information
provided by purchasers. See 2018 Md. Laws ch. 833 (adding Elec. Law §§ 13-405(b)(1),
(c)(1)). That they must make “reasonable efforts” to allow the State Board to obtain that
information, see id. (adding Elec. Law § 13-405(e)), does not render that obligation vague.
D. The Injunctive Remedies Authorized by the Act Are Not Unlawful

Prior Restraints.
The Act authorizes the Attorney General of Maryland, after investigating a potential
violation of §§ 13-401 (requiring campaign material to have an authority line) or 13-405
(imposing disclosure and record retention obligations in connection with QPDCs), to
“institute an action . . . for injunctive relief . . . . to: (i) require a purchaser of a [QPDC] to
comply with § 13-401 or § 13-405 of this subtitle; or (ii) require an online platform to
remove a [QPDC] that does not comply” with those provisions. 2018 Md. Laws ch. 833
(adding Elec. Law § 13-405.1(b)(1)). These are long-standing enforcement tools that have
been available to Maryland officials for years. See, e.g., Elec. Law § 13-605(a)
(authorizing the Secretary of State to seek “an immediate injunction against any violation
of this title”). Nevertheless, Plaintiffs characterize this tool as a pernicious “prior restraint”
because “it involves the suppression of speech ‘before an adequate determination that it is
28
The Act’s “reasonable efforts” requirement, and its specific reference to the
protections of the federal Stored Communications Act, see Elec. Law §§ 13-405(f), is
consistent with preserving an online platform’s right to assert valid objections to a
subpoena. See Finkle v. Howard County, Md., No. CIV. SAG-13-3236, 2014 WL
6835628, at *2 (D. Md. Dec. 2, 2014), aff'd, 640 F. App’x 245 (4th Cir. 2016) (“The Stored
Communications Act . . . states that the contents of electronically stored communications
shall not be disclosed to parties unless an enumerated exception applies.”).
28
unprotected by the First Amendment.’” Pls.’ Mem. 26 (quoting Pittsburgh Press Co. v.
Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390 (1973)).
As the Supreme Court in Pittsburgh Press noted, it “has never held that all
injunctions are impermissible.” 413 U.S. at 390. Rather, the “special vice of a prior
restraint is that communication will be suppressed, either directly or by inducing excessive
caution in the speaker, before an adequate determination that it is unprotected by the First
Amendment.” Id. And “[t]he best way to determine whether a given speech restriction is
a prior restraint is to consider the reasons for the heightened skepticism towards prior
restraints in the first place and determine whether the speech restriction in question
implicates those reasons.” Griffin v. Bryant, 30 F. Supp. 3d 1139, 1149 (D.N.M. 2014).
The injunctive remedies available under the Act do not implicate any concern that
“communication will be suppressed . . . before an adequate determination that it is
unprotected by the First Amendment.” Pittsburgh Press Co., 413 U.S. at 90. The Supreme
Court has made clear that the government can lawfully require disclosures of the sort at
issue here, and thus there is no risk that the disclosure and other reporting requirements
here would somehow escape constitutional scrutiny due to the injunctive remedies in the
Act. Moreover, “the speech at issue [will have] already taken place, so there can be no
concerns about the difficulty of knowing in advance what an individual will say and
whether that speech will be legitimate or illegitimate.” Dahlstrom v. Sun-Times Media,
LLC, No. 12 C 658, 2013 WL 6069267, at *3 (N.D. Ill. Nov. 18, 2013) (citing Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975)), aff’d, 777 F.3d 937 (7th Cir. 2015).
Finally, the injunction would not amount to a prior restraint, because, “if granted . . . it
29
would merely end the ongoing violation of the” Act. Dahlstrom v. Sun-Times Media, LLC,
39 F. Supp. 3d 998, 1004–05 (N.D. Ill. 2014).29
In Iowa Right to Life Committee, Inc. v. Tooker, 133 F. Supp. 3d 1179 (S.D. Iowa
2015), the court held that a statute requiring approval by a corporation’s board of directors
before the corporation could make an independent expenditure did not operate as a prior
restraint, because it “places no restrictions on the type or amount of speech an entity may
engage in, nor does it limit the issues or candidates an entity may support.” Id. at 1189.
The court noted that “the challenged regulations are straightforward and easy to
understand” and “[a]ny restraint on speech” resulting from its operation would not be the
“result of a judgment call by government officials, or because the entity was so paralyzed
by over-regulation that it chose not to speak so as to avoid penalty.” Id. These factors
apply with equal force here. The disclosure and retention requirements do not restrict the
type or amount of speech that online platforms (or QPDC purchasers) may engage in, and
the requirements themselves are straightforward and modest. That they are enforceable by
injunction does not require them to be treated as prior restraints.
E. The Act’s Record-Retention Requirements Do Not Give Rise to

Unlawful “Seizures.”
Under new Election Law § 13-405(c)(2), online platforms must retain certain
records relating to QPDCs and shall make them “available on the request of the State
29
Plaintiffs’ reliance on Bartnicki v. Vopper, 532 U.S. 514 (2001), see Pls.’Mem.
26-27, is misplaced. The issue in Bartnicki was whether a media organization could be
subject to damages for publishing the contents of cellular phone communications that had
been unlawfully obtained by a third party. 532 U.S. at 525. The case did not involve
required disclosures regarding paid political advertisements.
30
Board.” Plaintiffs contend that this scheme constitutes an unlawful seizure “because it
[does] not provide any opportunity on the part of [an online publisher] to object to a request
or to have the objection adjudicated by a neutral ‘decisionmaker.’” Pls.’ Mem. 27 (quoting
City of Los Angeles v. Patel, 135 S. Ct. 2443, 2448, 2452-53 (2015)). But traditionally, the
Supreme Court has relaxed this requirement where a “closely regulated business” is
involved. Patel, 135 S. Ct. at 2454.
Although online platforms do not operate such businesses, the field of paid election-
related speech has been the subject of extensive regulation with regard to source-of-funds
disclosure and records retention that the Act’s records provisions qualify under this
“closely regulated business exception.” This is evidenced by the State Board’s pre-existing
authority to audit the records of political committees and Independent Spenders on request.
See Elec. Law § 2-102(b)(5); COMAR 33.13.06.06C(1). The “closely regulated business”
doctrine “is essentially defined by ‘the pervasiveness and regularity of the federal
regulation’ and the effect of such regulation upon an owner’s expectation of privacy.” New
York v. Burger, 482 U.S. 691, 701 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 605-
06 (1981)). The State Board’s pre-existing and pervasive auditing authority, as well as the
very nature of the regulations requiring disclosure and the retention of other QPDC-related
information, eliminates any reasonable expectation of privacy as to that information.
Laws authorizing warrantless searches of such “closely regulated businesses” must
generally satisfy three criteria: (1) There must be a “‘substantial’ government interest that
informs the regulatory scheme pursuant to which the inspection is made”; (2) “the
warrantless inspections must be ‘necessary to further [the] regulatory scheme’”; and (3)
31
“‘the statute's inspection program, in terms of the certainty and regularity of its application,
[must] provid[e] a constitutionally adequate substitute for a warrant.’” Burger, 482 U.S.
at 702-03. All three criteria are satisfied here. Substantial government interests in
transparency, corruption-deterrence, and substantive enforcement of the campaign finance
laws are furthered by the Act. Moreover, the warrantless inspections are necessary to
further the regulatory scheme, as the State Board must have the flexibility afforded by
prompt access to records regarding the placement of QPDCs on online platforms in order
to facilitate enforcement. Finally, the Act provides a constitutionally adequate substitute
for a warrant because its provisions are “sufficiently comprehensive and defined that the
owner of the commercial property cannot help but be aware that his property will be subject
to periodic inspections,” and they are “carefully limited in time, place, and scope.”
LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261, 265 (4th Cir. 2012) (quoting
Burger, 482 U.S. at 703). The retention obligations imposed by the Act underscore that an
online platform’s “property will be subject to periodic inspections,” and the material that
is subject to such inspections is carefully limited to the precise information about each
hosted QPDC that online platforms are required to keep.
F. The Act Is Not Preempted by the Communications Decency Act.
The CDA provides, in relevant part, that “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of any information provided
by another information content provider.” 47 U.S.C. § 230(c)(1) (emphasis added). This
immunity provision does not apply here, however, because the Act does not purport to treat
online platforms “as the publisher or speaker” of the QPDC. Rather, online platforms’
32
duties under the Act are independent from those of purchasers: online platforms must
disclose information relating to the identities of the speakers of any QPDC, 2018 Md. Laws
ch. 833 (adding Elec. Law § 13-405(b)(1)); and must retain other information relating to
the QPDC itself, id. (adding § 13-405(c)(1)). Injunction remedies are available if
purchasers fail to provide this information to online platforms (or if the required authority
line is absent from the QPDC), not because of the speech contained in an ad.
More fundamentally, extending provider immunity under the CDA to online
platforms that host QPDCs is at odds with the purposes of that statute. In enacting this
legislation, “Congress recognized the threat that tort-based lawsuits pose to freedom of
speech in the new and burgeoning Internet medium,” and noted that “the Internet and
interactive computer services . . . offer[ed] ‘a forum for a true diversity of political
discourse, unique opportunities for cultural development, and myriad avenues for
intellectual activity.’” Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)
(quoting 47 U.S.C. § 230(a)(3)). Congress sought to “preserve the vibrant and competitive
free market that presently exists for the Internet and other interactive computer services,
unfettered by Federal or State regulation.” Id. (quoting 47 U.S.C. § 230(b)(2)).
As the Supreme Court held in Citizens United, “disclosure permits citizens and
shareholders to react to the speech of corporate entities in a proper way. This transparency
enables the electorate to make informed decisions and give proper weight to different
speakers and messages.” Citizens United, 558 U.S. at 371. Drawing online platforms
within the ambit of these disclosure obligations—in part, to harmonize their duties with
those of traditional broadcasters and, in part, to remedy exploitation of the lack of
33
regulation by foreign actors and others seeking to evade disclosure requirements during the
2016 election—furthers both these transparency principles and the “vibrant” online
“political discourse” that Congress hoped to nurture under the CDA, without doing damage
to the CDA’s objectives. The Act poses no threat whatsoever with regard to “tort-based
lawsuits” chilling speech, and both the narrowness of the duties imposed on online
platforms and the limited universe to which those duties attach (i.e., paid political ads),
mean that there is also no risk of service providers needing “to screen each of their millions
of postings for possible problems.” Zeran, 129 F.3d at 331.30
III. THE OTHER FACTORS THAT WOULD SUPPORT INJUNCTIVE RELIEF ARE
NOT PRESENT.
Plaintiffs are correct that the conclusion as to whether the remaining requirements
for the entry of injunctive relief “follows more or less automatically” from the
determination as to the Act’s likely constitutionality. Pls.’ Mem. 30. But because Plaintiffs
have not established a likelihood that the Act is either unconstitutional or preempted by
federal law, those factors militate against the entry of injunctive relief.
Plaintiffs’ failure to establish a likelihood of success on the merits is, standing alone,
fatal to their motion. See Di Biase, 872 F.3d at 230. But even if they had overcome that
hurdle, Plaintiffs have failed to establish, as they must in order to prevail, that they are
“likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
30
Should the Court find that any particular provision of the Act is unconstitutional
or preempted by the federal statute, the Court should sever the offending provisions from
the Act. See Md. Code Ann., Gen. Prov. § 1-210 (LexisNexis 2010) (presumption of
statutory severability unless “the court finds that the remaining valid provisions alone are
incomplete and incapable of being executed in accordance with the legislative intent”).
34
equities tips in [their] favor, and that an injunction is in the public interest.” Id. (quoting
Winter, 555 U.S. at 20).
First, Plaintiffs face no irreparable harm. As noted above, the Act imposes only
modest burdens; these amount to little more than disclosing and retaining information that
purchasers of QPDCs are required to provide. And given the absence of a likelihood of
success, there is little risk that, absent an injunction, Plaintiffs may be compelled to speak
in violation of their First Amendment rights until a final ruling on the merits. Second, the
balance of equities tips in favor of the Defendants. The entry of preliminary injunctive
relief prevents the State from enforcing the Act’s restrictions, despite the likelihood that
the claims will fail on the merits. Finally, the public interest supports denial for this same
reason: enforcement of an Act that is likely to succeed over a First Amendment challenge
is in the public’s interest, particularly where, as here, the Act’s goals of transparency in
political advertising enhance rather than curtail political discourse.
CONCLUSION
For all of the foregoing reasons, the Court should deny Plaintiffs’ request for a
preliminary injunction enjoining enforcement of the Act.
Respectfully submitted,
/s/ Julia Doyle Bernhardt

______________________
JULIA DOYLE BERNHARDT
/s/ Andrea W. Trento

______________________
35
Andrea W. Trento
Assistant Attorneys General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
jbernhardt@oag.state.md.us
atrento@oag.state.md.us
(410) 576-7291
(410) 576-6955 (facsimile)
Attorneys for Defendants
36

Plaintiffs, *
v. * Civil Action No. 1:18-cv-02527-PWG
DAVID J. McMANUS, JR., et al., *

Defendants. *
* * * * * * * * * * * * * *
CERTIFICATE OF SERVICE
I hereby certify that on September 12, 2018, the foregoing Defendants’
Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction was filed
pursuant to the Court’s electronic filing system, and served on all parties registered to
receive service through such means.
/s/ Andrea W. Trento .

AAndrea W. Trento
Case 1:18-cv-02527-PWG Document 24-1 Filed 09/12/18 Page 1 of 12
Exhibit A
Joint Testimony of Daniel I. Weiner and Ian Vandewalker

to the Maryland House of Delegates, Ways and Means Committee1
February 20, 2018
On behalf of the Brennan Center for Justice, we thank the Committee for the opportunity to
testify in support of HB 981, the Online Electioneering Transparency and Accountability Act.
The Brennan Center is a nonpartisan think tank and advocacy organization that focuses on
democracy and justice. We work to ensure that our elections are conducted in a way that allows
all Americans to participate in a self-governing democracy. The Brennan Center has studied
campaign finance issues for 20 years, working to develop effective and constitutionally sound
policies and advocating for them in the courts, legislatures, and administrative bodies across the
nation.
Political advertising over the Internet has grown exponentially in recent years, yet campaign
finance rules have largely failed to keep pace. That failure created an opening for Russian
operatives to secretly inject propaganda and divisive messages into the 2016 campaign—
including messages targeting Maryland voters. HB 981 would help fortify Maryland elections
against such threats and improve their overall transparency. It would do so employing reasonable
and constitutionally sound means. We do recommend certain modifications to the proposed
legislation to enhance its effectiveness and administrability. With these changes, we urge the
House of Delegates to immediately take up and pass HB 981.
I. The Rise of Internet Advertising
The Internet has rapidly become a key focus of political advertising in American elections. In
2017, ad buys for digital platforms outstripped those for traditional broadcast ads for the first—
but certainly not the last—time.2 The $1.4 billion spent online in the 2016 election was almost
eight times higher than the amount spent in 2012.3 And that spending growth almost certainly
understates the importance of the Internet in political campaigns, given how cheap internet
1
Mr. Weiner and Mr. Vandewalker both serve as Senior Counsel in the Brennan Center’s Democracy Program. This
testimony does not reflect the views, if any, of the NYU School of Law.
2
George Slefo, “Desktop and Mobile Ad Revenue Surpasses TV for the First Time,” AdAge, April 26, 2017,
http://adage.com/article/digital/digital-ad-revenue-surpasses-tv-desktop-iab/308808/.
3
Sean J. Miller, “Digital Ad Spending Tops Estimates,” Campaigns & Elections, January 4, 2017,
https://www.campaignsandelections.com/campaign-insider/digital-ad-spending-tops-estimates.
advertising is relative to other types of media.4 This is especially true in light of sophisticated ad
targeting tools that make it easier for political operatives across the spectrum to direct tailored
messages to select, highly-susceptible audiences at relatively little cost.5
II. Russia’s Use of Internet Ads in the 2016 Election
Russia attempted to influence the 2016 election by having “trolls” buy online ads and promote
content through fake accounts pretending to be Americans. They crafted different messages for
different audiences and used leading online platforms’ sophisticated audience targeting tools to
increase the chances that propaganda would reach the most receptive audiences.6
The Kremlin’s messages were mostly designed to “amplify[] divisive social and political
messages across the ideological spectrum.”7 Some also included attacks on or praise for specific
presidential candidates.8 Maryland was among the states targeted. For instance, Russian
operatives targeted socially polarizing Facebook ads to the Baltimore area, which was
experiencing mass protest movements and high tensions during the 2016 election period.9 In
total, there is evidence of at least 261 different ads having been targeted towards Maryland
residents.10
4
“Traditional Media vs. Social Media Advertising,” Lyfe Marketing, accessed February 15, 2018,
https://www.lyfemarketing.com/traditional-media-versus-social-media/.
5
Harry Davis and Danny Yadron, “How Facebook Tracks and Profits from Voters in a $10bn US Election,” The
Guardian, January 28, 2016, https://www.theguardian.com/us-news/2016/jan/28/facebook-voters-us-election-ted-
cruz-targeted-ads-trump; Issie Lapowsky, “The Real Trouble with Trump’s ‘Dark Post’ Facebook Ads,” Wired, Sept
20, 2017, https://www.wired.com/story/trump-dark-post-facebook-ads/; “Connect with constituents and voters on
Facebook,” https://politics.fb.com/, accessed February 16, 2018.
6
See Massimo Calabresi, “Inside Russia’s Social Media War on America,” Time, May 18, 2017,
http://time.com/4783932/inside-russia-social-media-war-america/.
7
Alex Stamos, Chief Security Officer, Facebook, “An Update On Information Operations On Facebook,”
September 6, 2017, https://newsroom.fb.com/news/2017/09/information-operations-update/ [“Stamos Update”]. See
also Josh Dawsey, “Russian-funded Facebook ads Backed Stein, Sanders and Trump,” Politico, September 26,
2017, http://www.politico.com/story/2017/09/26/facebook-russia-trump-sanders-stein-243172; Adam Entous, Craig
Timberg and Elizabeth Dwoskin, “Russian Operatives Used Facebook ads to Exploit America’s Racial and
Religious Divisions,” Washington Post, September 25, 2017,
https://www.washingtonpost.com/business/technology/russian-operatives-used-facebook-ads-to-exploit-divisions-
over-black-political-activism-and-muslims/2017/09/25/4a011242-a21b-11e7-ade1-76d061d56efa_story.html.
8
See Stamos Update; Scott Shane, “These Are the Ads Russia Bought on Facebook in 2016,” New York Times,
November 1, 2017, https://www.nytimes.com/2017/11/01/us/politics/russia-2016-election-facebook.html; Ben
Popken, “Twitter deleted 200,000 Russian troll tweets. Read them here.” NBC News, February 14, 2018,
https://www.nbcnews.com/tech/social-media/now-available-more-200-000-deleted-russian-troll-tweets-n844731.
Some of these ad buys were likely illegal, since they recommended voting for presidential candidates, and foreign
nationals are banned from engaging in “express advocacy” that tells the public how to vote. See 52 U.S.C. § 30121
(banning foreign nationals from election spending); 11 C.F.R. § 100.22 (defining express advocacy). But, based on
what Facebook has reported, many of the ads stopped short of express advocacy and so may not have run afoul of
current federal law.
9
Dylan Byers, “Exclusive: Russian-bought Black Lives Matter ad on Facebook targeted Baltimore and Ferguson,”
CNN, September 28, 2017, http://money.cnn.com/2017/09/27/media/facebook-black-lives-matter-
targeting/index.html.
10
Changez Ali and J.F. Meils, “GOP Senator: Maryland One of Three States Most Targeted by Russian Ads in
2016,” Delmarva Now, November 2, 2017,
http://www.delmarvanow.com/story/news/local/maryland/2017/11/02/maryland-russian-facebook-ads-
campaign/826688001/.
2
So far, internal investigations by Facebook, Twitter, and Google have found Russian activity on
each of these popular platforms.11 Total expenditures were in the hundreds of thousands of
dollars.12 Although this may seem like a comparatively small amount of money, powerful
modern ad targeting tools and the possibility for messages to be shared organically by users can
vastly expand even a modest ad buy’s reach.13
Russia’s purchases of political ads in 2016 called particular attention to the problem of “dark
posts”—narrowly targeted online ads that the general public does not know about. Dark posts
allow political operatives to take different positions with different audiences and use
inflammatory or blatantly false rhetoric.14 And they can drive audiences to unpaid content posted
by the same fake accounts.15
In total, Facebook has estimated that 11.4 million people saw its Russia-linked ads; related
content that users could organically share reached 126 million Facebook users.16
Last Friday, a grand jury empaneled by Special Counsel Robert Mueller handed up its first
indictments of Russian nationals (thirteen individuals and three business entities with ties to the
Russian government) for their use of social media platforms to influence the 2016 election in
violation of U.S. law.17 However, it is important to emphasize that even with these indictments,
11
Elizabeth Dwoskin, Adam Entous, and Craig Timberg, “Google Uncovers Russian-bought Ads on YouTube,
Gmail and other platforms,” Washington Post, October 9, 2017, https://www.washingtonpost.com/news/the-
switch/wp/2017/10/09/google-uncovers-russian-bought-ads-on-youtube-gmail-and-other-platforms/; Carol D.
Leonnig, Tom Hamburger, and Rosalind S. Helderman, “Russian Firm Tied to Pro-Kremlin Propaganda Advertised
on Facebook During Election,” Washington Post, September 6, 2017,
https://www.washingtonpost.com/politics/facebook-says-it-sold-political-ads-to-russian-company-during-2016-
election/2017/09/06/32f01fd2-931e-11e7-89fa-bb822a46da5b_story.html.
12
See Stamos Update; Twitter Public Policy, “Update: Russian Interference in 2016 US Election, Bots, &
Misinformation,” Twitter Blog, Sept 28, 2017, https://blog.twitter.com/official/en_us/topics/company/2017/Update-
Russian-Interference-in-2016--Election-Bots-and-Misinformation.html.
13
Ben Collins, Kevin Poulsen, and Spencer Ackerman, “Russia’s Facebook Fake News Could Have Reached 70
Million Americans,” The Daily Beast, September 8, 2017, http://www.thedailybeast.com/russias-facebook-fake-
news-could-have-reached-70-million-americans; Kevin Bingle, “I Ran Digital For A 2016 Presidential Campaign.
Here's What Russia Might Have Got For $100,000,” BuzzFeed, September 8, 2017,
https://www.buzzfeed.com/kevinbingle/how-far-did-russias-100000-go.
14
See Christopher S. Elmendorf, Ann Ravel and Abby Wood, “Open Up the Black Box of Political Advertising,”
San Francisco Chronicle, September 22, 2017, http://www.sfchronicle.com/opinion/openforum/article/Open-up-
the-black-box-of-political-advertising-12221372.php; Siva Vaidhyanathan, “Facebook Wins, Democracy Loses,”
New York Times, September 8, 2017, https://www.nytimes.com/2017/09/08/opinion/facebook-wins-democracy-
loses.html.
15
On Facebook, users who click “like” or “share” on one of an account’s promoted posts are automatically, and
possibly unknowingly, subscribed to follow that advertiser’s account. Mike Isaac, “At Facebook, Hand-Wringing
Over a Fix for Fake Content,” New York Times, October 27, 2017,
https://www.nytimes.com/2017/10/27/technology/facebook-fake-content-employees.html.
16
Craig Timberg, “Russian propaganda may have been shared hundreds of millions of times, new research says,”
Washington Post, October 5, 2017, https://www.washingtonpost.com/amphtml/news/the-
switch/wp/2017/10/05/russian-propaganda-may-have-been-shared-hundreds-of-millions-of-times-new-research-
says/.
17
Indictment, February 16, 2016, available at https://www.justice.gov/file/1035477/download [“Feb. 16
Indictment].
3
we still do not know the full extent of Russia’s efforts to influence the American electorate using
online platforms.
What we do know is that what happened in 2016 is likely to recur. In fact, the country’s top
intelligence officials warned Congress this month that the Russian government sees the
upcoming midterm elections as an opportunity to sow fresh discord in American politics.18
In response to the Russian interference scandal, social media platforms like Facebook and
Twitter have promised changes to blunt the ability of foreign powers to fund online political ads
in American elections.19 However, voluntary efforts are not enough. Policies can be insufficient,
varied, or applied differently across users. They can also be abandoned once a scandal blows
over. In short, while internet companies are valuable partners in the effort to prevent foreign
meddling in U.S. elections, government—at both the state and federal levels—also has an
indispensable role to play
III. Other Examples of Foreign Spending in U.S. Elections
Russia’s use of internet ads is not the only example of foreign governments and nationals
seeking to influence the 2016 campaign through election spending. The FBI is also reportedly
investigating whether a Russian oligarch with close ties to President Vladimir Putin funneled
money to the National Rifle Association to spend on elections.20
Moreover, Russian nationals are hardly alone in seeking to influence U.S. campaigns. For
instance, a wealthy Chinese couple who have long sought to cultivate ties to American
politicians reportedly used a U.S. company to give $1.2 million to a super PAC backing Jeb
Bush’s presidential campaign.21 Chinese nationals seeking EB-5 visas for foreign investors also
have been accused of using a limited liability company to funnel money to a super PAC backing
Representative Patrick Murphy, the Democratic U.S. Senate nominee in Florida; the Federal
Election Commission (FEC) declined to investigate, over the strenuous objections of two
18
Matthew Rosenberg, Charlie Savage and Michael Wines, “Russia Sees Midterm Elections as Chance to Sow
Fresh Discord, Intelligence Chiefs Warn,” New York Times, February 13, 2018,
https://www.nytimes.com/2018/02/13/us/politics/russia-sees-midterm-elections-as-chance-to-sow-fresh-discord-
intelligence-chiefs-warn.html.
19
For instance, Facebook is building an “ad transparency” tool that will require additional human review and
approval of ads that are targeted with reference to “politics, religion, ethnicity or social issues.” Sara Fisher and
David McCabe, “Facebook tells advertisers more scrutiny is coming,” Axios, October 7, 2017,
https://www.axios.com/scoop-facebook-tells-advertisers-more-scrutiny-is-coming-2493827891.html. Twitter has
likewise promised to strengthen its site against “bots and networks of manipulation.” Twitter PublicPolicy, “Update:
Russian Interference in 2016 US Election, Bots, & Misinformation,” Twitter, September 28, 2017,
https://blog.twitter.com/official/en_us/topics/company/2017/Update-Russian-Interference-in-2016--Election-Bots-
and-Misinformation.html. In this effort, the company has identified and suspended accounts identified as spam
accounts; tracked spending by known foreign entities targeting U.S. audiences; and removed tweets which
suppressed the vote. Id.
20
Peter Stone and Greg Gordon, “FBI Investigating whether Russian Money went to NRA to help Trump,”
McClatchy, January 18, 2018, http://www.mcclatchydc.com/news/nation-world/national/article195231139.html
21
Lee Fang, Jon Schwarz and Elaine Yu, “Power Couple: Meet the Chinese Husband-and-Wife Team Whose
Company Spent $1.3 Million Trying to Make Jeb Bush President,” The Intercept, August 3, 2016,
https://theintercept.com/2016/08/03/chinese-couple-million-dollar-donation-jeb-bush-super-pac/.
4
commissioners from Murphy’s own party.22 And the American Chemistry Council, a major
spender in federal elections, announced this month that a state-owned Chinese firm, Wanhua
Chemical, will become a dues-paying member.23
Nor are such activities limited to federal elections. In 2012, for example, a Mexican property
developer managed to funnel more than $600,000 into San Diego’s mayoral race in an effort, as
described by prosecutors, to “buy a mayor.”24 In another example, a committee opposed to a
2012 Los Angeles ballot measure regulating the adult film industry was revealed to have been
partially funded by foreign nationals affiliated with a Luxembourg-based online pornography
company.25 The funds included contributions from a corporation based in Cyprus and corporate
donations directed by a German citizen.26 The episode generated a complaint to the FEC, but the
Commission deadlocked, with half the commissioners blocking enforcement based on their
conclusion that the federal prohibition on foreign national campaign spending does not apply to
state ballot measures.27
Several of these examples highlight another critical issue: the ability of foreign nationals to
funnel campaign contributions through domestic corporations.
The Supreme Court’s Citizens United decision and its progeny freed corporations to spend
money on elections by, for example, giving to super PACs.28 The Court’s subsequent ruling in
Bluman v. Federal Election Commission reaffirmed, however, that foreign nationals may still be
prohibited from spending on campaigns.29 As a result, although corporations organized abroad
are still banned from giving money, the same restrictions have not generally been applied to
domestic corporations with significant foreign ownership.30 Such entities are prohibited from
acting as “conduits” for illegal donations (as in several of the examples above), but conduit
schemes tend to be very difficult to prove and rarely prosecuted.
Moreover, too often current law does not prevent many other foreign-influenced corporations—
including firms with ties to foreign governments—from spending legally in U.S. elections.
Russia, for example, often operates through proxies, like its Internet Research Agency, which is
22
Kenneth P. Doyle, “FEC Drops Foreign Money Case Involving Super PAC Contributions,” Bloomberg BNA,
October 25, 2017, https://www.bna.com/fec-drops-foreign-n73014471336/.
23
Lee Fang, “Chinese State-Owned Chemical Firm Joins Dark Money Group Pouring Cash into U.S. Elections,”
The Intercept, February 15, 2018, https://theintercept.com/2018/02/15/chinese-state-owned-chemical-firm-joins-
dark-money-group-pouring-cash-into-u-s-elections/.
24
Greg Moran, “Feds Say Azano Wanted to ‘Buy a Mayor,’” The San Diego Union-Tribune, July 27, 2016,
http://www.sandiegouniontribune.com/sdut-feds-say-azano-wanted-to-buy-a-mayor-2016jul27-story.html.
25
Ciara Torres-Spelliscy, “Dark Money as a Political Sovereignty Problem,” Kings Law Journal 28 (2017).
26
FEC, First General Counsel’s Report, Matter Under Review (MUR) 6678 (MindGeek USA, Inc., et al.), August
15, 2014, 9-10, available at http://eqs.fec.gov/eqsdocsMUR/15044372921.pdf.
27
Id. at 15 – 20; Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioners Caroline C.
Hunter and Lee E. Goodman in MUR 6678 (MindGeek USA, Inc., et al.), April 30, 2015, available at
http://eqs.fec.gov/eqsdocsMUR/15044372963.pdf.
28
See Citizens United v. FEC, 558 U.S. 310, 357 (2010); SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010);
Jon Schwarz and Lee Fang, “Cracks in the Dam: Three Paths Citizens United Created for Foreign Money to Pour
into U.S. Elections,” The Intercept, August 3, 2016, https://theintercept.com/2016/08/03/citizens-united-foreign-
money-us-elections/.
29
Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) (three judge court), summarily aff’d., 565 U.S. 1104 (2012).
30
“Foreign Nationals,” FEC Record, June 23, 2017, https://www.fec.gov/updates/foreign-nationals/; FEC Advisory
Op. 2006-15, available at http://saos.fec.gov/aodocs/2006-15.pdf.
5
organized as a business corporation (and was one of the three entities indicted last Friday for
election interference).31 In theory, there is nothing to stop such an entity from forming an
American subsidiary with the ability to spend money on U.S. campaigns. Even if that subsidiary
was independently managed, those running it on behalf of the parent would have a fiduciary
responsibility to purse the parent corporation’s best interests, including through the entity’s
political spending.32
As explained below, we do not believe that such a result is compelled by the Supreme Court’s
jurisprudence. As with foreign campaign spending over the Internet, government can and must
act to address this problem.
IV. Analysis of HB 981
HB 981 takes meaningful steps to address both the central role the Internet now plays in political
advertising—including the use of internet advertising by foreign governments or their proxies to
interfere with our elections—and the problem of foreign campaign spending funneled through
U.S. corporations. It does so by, among other things: 1) including online political advertisements
in the definition of “electioneering communications” subject to certain disclosure and disclaimer
rules; 2) requiring internet platforms to maintain a “public file” documenting the political ads
they have sold in the previous year; and 3) expanding prohibitions on campaign spending by
foreign nationals to include foreign-influenced corporations.
We strongly support these changes, which are consistent with the Supreme Court’s
jurisprudence. The only campaign spending the bill prohibits is that of entities owned or
controlled in significant part by foreign nationals. Court have long recognized that government
has a “compelling interest for purposes of the First Amendment in limiting the participation of
foreign citizens in activities of American self-government, and in thereby preventing foreign
influence over the U.S. political process.”33 Thus, “government may bar foreign citizens (at least
those who are not lawful permanent residents of the United States) from participating in the
campaign process that seeks to influence how voters will cast their ballots in the elections.”34
U.S. shareholders and other citizens and permanent residents affiliated with foreign-influenced
corporations remain free to spend money on Maryland elections; HB 981 simply prohibits them
from doing so in conjunction with foreign nationals who are ineligible to do so.
HB 981’s remaining provisions do not prohibit any campaign spending at all, but simply ensure
that it will be transparent. The Supreme Court—from Buckley v. Valeo35 to Citizens United36 and
31
Ivan Nechepurenko and Michael Schwirtz, “The Troll Farm: What We Know About 13 Russians Indicted by the
U.S.,” New York Times, February 17, 2018, https://www.nytimes.com/2018/02/17/world/europe/russians-indicted-
mueller.html; Feb. 16 Indictment, ¶ 25. Russia has a widely recognized practice of employing proxy entities in other
countries. See, e.g., Orysia Lutsevych, “Agents of the Russian World: Proxy Groups in the Contested
Neighbourhood,” Chatham House, The Royal Institute of International Affairs, 2016,
https://www.chathamhouse.org/sites/files/chathamhouse/publications/research/2016-04-14-agents-russian-world-
lutsevych.pdf.
32
Memorandum from Ellen L. Weintraub, Commissioner, Federal Election Commission, September 28, 2016,
https://beta.fec.gov/resources/about-
fec/commissioners/weintraub/statements/Foreign_National_2_Memo_28_Sept_2016.pdf.
33
Bluman, 800 F. Supp.2d at 288.
34
Id.
35
424 U.S. 1, 62-64, 84 (1976).
6
beyond—has consistently and repeatedly held that transparency requirements are constitutional.
Even when dismantling other regulations, the Court has reaffirmed that disclosure rules are
justified to “help citizens make informed choices in the political marketplace,”37 and prevent
“abuse of the campaign finance system.”38 The common-sense requirements that HB 981
establishes for paid internet communications, which are in line with rules for other types of
political spending, further these goals, and are likely to be upheld if challenged.
While we strongly support passage of HB 981, based on our review of the legislation’s current
text, we do recommend the following amendments to enhance its effectiveness.
1. Proposed Section 1-101(dd-2)
As noted, we strongly support HB 981’s core goal of extending common-sense campaign finance
rules to online political ads. To further strengthen the provisions working towards this objective,
we recommend three key changes to the definition of “Online Political Advertisement” in
proposed section 1-101(dd-2):
First, reduce the distribution threshold in proposed section 1-101(dd-2)(1)(II) from 5000 to
500. As noted above, Russian efforts to interfere in the 2016 election exploited sophisticated
targeting tools to direct tailored ads to small groups of people. It is likely that other actors will
take advantage of similar techniques. In the very least, platforms should be required to keep
records of these ad purchases in their public files, which will allow journalists to fact-check
claims and give the wider public the power to hold speakers accountable for inflammatory of
false rhetoric.39 The 500-recipient threshold is already used elsewhere in the Election Law,40 and
we believe it makes sense here.
Second, include generic references to political parties and issues of public importance in
proposed section 1-101(dd-2)(1)(III). Many of the ads deployed by Russian operatives in 2016,
including some of those deployed in Maryland, did not make specific reference to any candidate
or ballot question, but instead discussed issues of public importance. Such ads, like ads targeted
to relatively small numbers of people, should at least be included in the public files maintained
by platforms. Under federal law, the public “political file” requirements that television and radio
broadcasters must follow include all political ads and ads concerning issues of public
importance.41 A similar requirement is in the federal Honest Ads Act.42 We believe a parallel
requirement makes sense here.
Third, include online ads with production costs of at least $5000 in proposed section 1-
101(dd-2)(1)(I). Social media websites like Facebook and YouTube allow content to be shared
36
558 U.S. at 371.
37
Id. at 367, 369.
38
McCutcheon v. FEC, 134 S.Ct. 1434, 1459 (2014) (plurality opinion).
39
See Elmendorf, Ravel and Wood, “Open up the Black Box of Political Advertising”; Siva Vaidhyanathan,
“Facebook Wins, Democracy Loses,” New York Times, September 8, 2017,
https://www.nytimes.com/2017/09/08/opinion/facebook-wins-democracy-loses.html.
40
See Md. Election Law § 13-306(a)(4) (mass mailings).
41
The file includes information about the content of the ad, when and where it was aired, the cost, and the buyer’s
identity. 47 C.F.R. § 73.1943. The files are available online at https://publicfiles.fcc.gov/.
42
Honest Ads Act of 2017, S.1989, 115th Cong. (2017), sec. 8, available at https://www.congress.gov/bill/115th-
congress/senate-bill/1989/text [“Honest Ads Act”].
7
widely for free. Political operatives can spend significant amounts to produce a slick video, then
share it without paying the platform anything. To capture this spending, ads that cost $5000 or
more to produce (the minimum reporting threshold for electioneering communications43) should
qualify as Online Political Advertisements even if posted for free. Section 13-307 governing
electioneering communications should also be amended to make clear that “disbursements”
counting towards the reporting thresholds include money spent on ad production as well as ad
placement.
We also urge you to consider adding use of a candidate’s voice in the definition of “clearly-
identified” in proposed section 1-101(dd-2)(2), with a conforming amendment to the definition
of “electioneering communication” in section 13-307(a)(3)(iii). Federal law is silent with respect
to this issue, on which the Federal Election Commission (FEC) has deadlocked.44 In our view,
use of a candidate’s voice in an ad does “clearly identify” a candidate, and should be expressly
covered.
2. Section 13-236.1
We also strongly support HB-981’s extension of prohibitions on campaign spending by foreign
nationals to foreign-influenced corporations. We do, however, recommend three key changes to
these provisions.
First, change the definition of “foreign-influenced corporation” in proposed section 13-
236.1(a)(2). The current definition covers any “corporation at least 5% of which is owned by
foreign nationals.” This formulation would create compliance challenges for publicly-traded
corporations that cannot easily determine how many of their direct and indirect shareholders at a
given time are not U.S. citizens or permanent residents.
We recommend replacing this language with definitional language from federal legislation
introduced by Congressman Jamie Raskin.45 Congressman Raskin’s bill defines a “foreign-
influenced corporation” to include, among other categories, corporations at least five percent of
whose voting shares are owned or controlled by a foreign government or entity or individual
connected to it; at least twenty percent of whose voting shares are owned by any other foreign
national; or whose decision-making processes (overall or with respect to election-related
activities) with respect to the United States46 are controlled at least in part by one or more foreign
nationals. By limiting the triggering percentage to cases in which a single entity owns, in the
very least, five percent or more, the bill minimizes the compliance burden; publicly-traded
corporations are already required to report purchases of five percent or more, along with the
buyer’s citizenship, to the Securities and Exchange Commission within 10 days of the
43
Md. Election Law § 13-307(b).
44
FEC Advisory Op. 2012-19 (American Future Fund), available at http://saos.fec.gov/aodocs/AO%202012-19.pdf;
Concurring Statement of Vice Chair Ellen L. Weintraub and Commissioner Cynthia L. Bauerly on Advisory
Opinion Request 2012-19 (American Future Fund), June 13, 2012, available at
https://www.fec.gov/resources/about-fec/commissioners/weintraub/aos/sorao2012-19.pdf.
45
Get Foreign Money Out of U.S. Elections Act, H.R. 1615, 115th Cong. (2017), available at
https://www.congress.gov/bill/115th-congress/house-bill/1615/text.
46
It may be appropriate to add “or the State of Maryland or any subdivision of it” to the phrase “with respect to the
United States” in subsection 2(a)(3) of Congressman Raskin’s bill.
8
purchase.47 This definition is more precise and, in our view, adequate to accomplish HB-981’s
goal of preventing foreign interference in Maryland elections.
Second, make sure LLCs are included. We urge inclusion of express language that limited
liability companies (LLCs), which are hybrid entities typically set up to obtain certain tax
benefits while retaining the benefit of the corporate form, count as corporations for purposes of
this provision. There is evidence that LLCs are increasingly being used in political spending.48
LLCs can generally be organized with little more than an anonymous name like “ABC LLC,” a
post office box, and a bank account, effectively masking the origin of any funds.49 LLC spending
in federal elections increased by almost fifty percent in 2016 relative to 2012.50 Investigations
outside the electoral context have also documented the use of LLCs to obscure foreign ownership
of U.S. assets.51
Third, add a “reasonable efforts” requirement for those who sell political ads. The federal
Honest Ads Act would require broadcasters, cable and satellite providers, and online platforms to
“make reasonable efforts to ensure that [independent expenditures and electioneering
communications] made available by such station, provider or platform are not purchases by a
foreign national, directly or indirectly.”52 We recommend adding a similar requirement to HB
981. This would require providers to, for example, give extra scrutiny to purchases by credit card
where there is a foreign billing address.53 Online platforms like Google could also screen ads
purchased from foreign IP addresses. Such techniques would not prevent all prohibited ad
purchases by foreign nationals, but they would at least screen out the most obvious violations.
3. Section 13-307(a)(3)
Two additional conforming changes should be made to the definition of “electioneering
communication” in section 13-307(a)(3)(i).
First, the provision as currently drafted does not specify how many people an online political
advertisement needs to reach to qualify as an electioneering communication. We recommend
adding online political advertisements to the list of communications in subsection 3(B) that must
reach at least 5000 people to qualify, since they are more analogous to the other forms of
47
17 C.F.R. § 240.13d–101.
48
The FEC has received complaints of donations coming from LLCs apparently created to hide donors’ identities.
Office of Commissioner Ann M. Ravel, Federal Election Commission, Dysfunction and Deadlock: The Enforcement
Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp, February 2017,
http://www.fec.gov/members/ravel/ravelreport_feb2017.pdf.
49
Michael Beckel, “Rapper-backed Group Illustrates Blind Spot in Political Transparency,” Center for Public
Integrity, March 31, 2015, https://www.publicintegrity.org/2015/03/31/16944/rapper-backed-group-illustrates-blind-
spot-political-transparency (discussing anonymity of LLCs).
50
Ashely Balcerzak, “Surge in LLC Contributions Brings More Mystery about True Donors,” OpenSecrets, April
27, 2017, https://www.opensecrets.org/news/2017/04/surge-in-llc-contributions-more-mystery/.
51
Louise Story and Stephanie Saul, “Stream of Foreign Wealth Flows to Elite New York Real Estate,” New York
Times, February 8, 2015, https://www.nytimes.com/2015/02/08/nyregion/stream-of-foreign-wealth-flows-to-time-
warner-condos.html.
52
Honest Ads Act, sec. 9.
53
A similar requirement for federal campaign contributions has been proposed with bipartisan support. See Stop
Foreign Donations Affecting Our Elections Act, S.1660, 115th Cong. (2017), sec. 2, available at
https://www.congress.gov/bill/115th-congress/senate-bill/1660/text.
9
communication listed in that subsection (such as e-mail and text blasts and mass mailings) than
they are to the television and radio communications covered by subsection 3(A).
Second, for avoidance of any doubt, we recommend clarifying that the media exception in
section 13-307(a)(3)(ii)(2) applies to news stories disseminated over the web or in print. This
could be accomplished by conforming the language of this subsection to that in section 13-
306(a)(6)(ii)(1) dealing with “public communications.”
4. Proposed Section 13-403.1
Finally, we strongly support the policy of requiring businesses that sell online ads to make
information about political ads available in a public file, as HB 981 does. We recommend
strengthening the bill’s relevant provisions as follows:
First, require public files to be online. Platforms may not have offices in Maryland, making
physical inspection infeasible. And internet companies should have the expertise to build easy-
to-access online databases. The database should be machine readable so that members of the
public can easily download the data for analysis. The law should also make clear how frequently
platforms are required to update the database (at least quarterly).
Second, require public files to contain more information. In addition to the information
currently required (the advertiser’s name and the cost), there should also be public access to the
name of the candidate and office sought, ballot issue, or party or issue referenced; how the ad’s
audience was targeted; and what dates the ad ran.
Third, expand the 48-hour reporting requirement. The 48-hour report that would be required
by proposed Section 13.403.1(B) should be strengthened to include all the information required
for the public file, not just the ad and the cost. Including information about the spender, election,
and targeting will make the reports most useful to law enforcement investigations of potential
violations of the ban on election spending by foreign nationals.
Fourth, consider adding a safe harbor. We recommend consideration of a safe harbor provision
that would allow platforms to keep some identifying information out of the public file in cases
where an ad buyer presents credible evidence (subject to review by the Board of Elections) that
disclosure will likely subject them to “threats, harassment, or reprisals.”54
Legislative language embodying most of these recommendations can be found in the federal
Honest Ads Act and a bill proposed by New York Gov. Andrew Cuomo.55
5. Authority Line Provisions
In addition to the above-referenced changes to the public file requirement, we further
recommend requiring platforms that allow online political advertisements to be republished by
other users (e.g., “sharing” on Facebook and “retweeting” on Twitter) ensure that the “authority
line” disclaimer required under section 13-401 remain visible when the ad is republished by
users. This is needed to ensure that audiences that only see the republished version will still be
54
Buckley, 424 U.S. at 74.
55
Honest Ads Act, sec. 8; New York State Executive Budget FY 2019, Good Government and Ethics Reform
Article VII Legislation, 7-8, https://www.budget.ny.gov/pubs/archive/fy19/exec/fy19artVIIs/GGERArticleVII.pdf.
10
informed as to who is responsible for the ad. For example, Facebook should be required to
ensure that “paid for by” disclaimers appear on political ads no matter who they are shared by, or
how many times.
***
With these amendments, HB 981 will be an important step in closing loopholes that have
undermined campaign transparency in Maryland and left state elections vulnerable to foreign
interference. With Election Day little more than eight months away, and the near certainty that
foreign powers will continue to look for ways to interfere with campaigns in Maryland and
across the nation, the time to act is now. We commend the Committee for taking up this
important matter and urge HB 981’s prompt passage by the full House of Delegates.
11
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Case 1:18-cv-02527-PWG Document 24 Filed 09/12/18 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT

THE WASHINGTON POST, et al., *

v. * Civil Action No. 1:18-cv-02527-PWG

DAVID J. McMANUS, JR., et al., *

JULIA DOYLE BERNHARDT

September 12, 2018 Attorneys for Defendants

Already Existing Records, Reporting, and Disclosure Obligations ......................... 3

The 2016 Election..................................................................................................... 5

The Legislative History of the Act ........................................................................... 7

The Requirements of the Act.................................................................................... 9

Procedural History .................................................................................................. 12

II. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THEIR

A. The Act is Subject to “Exacting Scrutiny”—a Form of Intermediate

B. The Act’s Disclosure and Record-keeping Obligations Do Not Violate

1. The Act’s Disclosure and Record-Keeping Duties Are

C. The Challenged Provisions are not Unconstitutionally Vague. .................. 23

1. Plaintiffs Lack Standing to Challenge the Definition of QPDC,

D. The Injunctive Remedies Authorized by the Act Are Not Unlawful

E. The Act’s Record-Retention Requirements Do Not Give Rise to

F. The Act Is Not Preempted by the Communications Decency Act. ............. 32

Arizona Free Enter. Club’s Freedom Club PAC v. Bennett,

Bartnicki v. Vopper, 532 U.S. 514 (2001) ......................................................................... 30

Buckley v. Valeo, 424 U.S. 1, 64 (1976).......................................................... 15, 16, 17, 19

California Teachers Ass’n v. State Bd. of Educ.,

Center for Individual Freedom v. Madigan,

Center for Individual Freedom, Inc. v. Tennant,

Citizens Against Rent Control v. City of Berkeley,

City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) ........................................................ 31

Dahlstrom v. Sun-Times Media, LLC,

Dahlstrom v. Sun-Times Media, LLC, No. 12 C 658,

Davis v. Federal Election Comm’n, 554 U.S. 724 (2008) ................................................ 15

Donovan v. Dewey, 452 U.S. 594 (1981) .......................................................................... 31

Finkle v. Howard County, Md., No. CIV. SAG-13-3236,

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................................................... 23

Griffin v. Bryant, 30 F. Supp. 3d 1139 (D.N.M. 2014) ..................................................... 29

Independence Inst. v. Federal Election Comm’n,

Independence Inst. v. Williams, 812 F. 3d 787 (10th Cir. 2016) ....................................... 26

Kenny v. Wilson, 885 F. 3d 280 (4th Cir. 2018) ................................................................ 24

McCutcheon v. Federal Election Comm’n, 573 U.S. 185 (2014) ..................................... 18

New York v. Burger, 482 U.S. 691 (1987)................................................................... 31, 32

New York v. Ferber, 458 U.S. 747 (1982) ......................................................................... 24

Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations,

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .............................................................. 16

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ...................................... 29

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

Worley v. Cruz-Bustillo, 717 F.3d 1238 (11th Cir. 2013) ................................................. 15

U.S. Const. amend I .................................................................................................... passim

U.S. Const. amend IV .............................................................................................. 2, 12, 13

U.S. Const. amend XIV ................................................................................................. 2, 12

47 U.S.C. § 230 ................................................................................................................. 12

47 U.S.C. § 230(a)(3) ........................................................................................................ 33

47 U.S.C. § 230(b)(2) ........................................................................................................ 33

47 U.S.C. § 230(c)(1) ........................................................................................................ 32

2018 Md. Laws ch. 833 .............................................................................................. passim

2018 Md. Laws ch. 833, § 2 .............................................................................................. 12

Md. Code Ann., Elec. Law § 1-101(gg) (LexisNexis 2017) ............................................... 4

Md. Code Ann., Elec. Law § 1-101(h) (LexisNexis 2017) ................................................. 4

Md. Code Ann., Elec. Law § 1-101(k)(1) (LexisNexis 2017) ............................................ 3

Md. Code Ann., Elec. Law § 2-102(b)(5) (LexisNexis 2017) ...................................... 4, 31

Md. Code Ann., Elec. Law § 13-221 (LexisNexis 2017) .................................................... 4

Md. Code Ann., Elec. Law § 13-221(a)(1) (LexisNexis 2017)........................................... 4

Md. Code Ann., Elec. Law § 13-304 (LexisNexis 2017) .................................................... 3