Maryland Online Electioneering Transparency and Accountability Act

Maryland’s Online Electioneering Transparency and Accountability Act was enacted in May 2018 as Chapter 834 of the 2018 Laws of Maryland and took effect on July 1, 2018. It became law without the signature of Governor Larry Hogan, who had said the bill raised constitutional concerns. The law established publication and recordkeeping requirements for online platforms carrying political advertisements.

Legal Background

Legislative Context: Following concerns about foreign interference in elections and lack of transparency in digital political advertising, Maryland sought to extend traditional campaign finance disclosure requirements to online platforms.

Legal Question: Whether states could constitutionally require online platforms to collect, maintain, and publicly disclose detailed information about political advertisements and their purchasers.

Key Provisions

The law establishes the following transparency requirements for online political advertising:

Publication Requirement: Online platforms must publish on their websites information about political ad purchasers including the purchaser’s identity, the amount paid, and the individuals who exercise control over the purchaser. Under Md. Code Ann., Elec. Law § 13-405(b), that information must be posted within 48 hours of the ad’s purchase and must remain publicly available online for at least one year after the general election.

Inspection Requirement: Platforms must separately collect and retain records of political ad purchases and make them available to the Maryland State Board of Elections on request. Under § 13-405(c), those records must be available within 48 hours of the ad’s first dissemination and must be retained for at least one year after the general election. One year is a statutory minimum, not a ceiling.

Qualifying Advertisement Threshold: Under Md. Code Ann., Elec. Law § 1-101, a “qualifying paid digital communication” is an electronic communication that is campaign material, is placed or promoted for a fee on an online platform, is disseminated to 500 or more individuals, and does not propose a commercial transaction.

Platform Coverage: Section 1-101 defines an “online platform” as any public-facing website, web application, or digital application — including a social network, ad network, or search engine — that has 100,000 or more unique monthly United States visitors or users for a majority of the months in the preceding 12 months and receives payment for qualifying paid digital communications.

Disclaimer Requirements: All online campaign material must contain disclaimers stating the name and address of the person responsible for the material or the treasurer of each PAC responsible for it.

Impact on Digital Platforms

Platform responses to the law included:

• Google Response: Google stopped accepting election ads in Maryland around the law’s July 1, 2018 effective date while it assessed the statute. The company said its systems were not built to collect and supply the required information within the 48-hour window, and that its dynamic pricing meant it did not always know the final price of a campaign.
• Platform System Requirements: The law required platforms to build new infrastructure for collecting, storing, and publicly displaying political ad information

Legal Challenges and Evolution

Constitutional Challenge: The Washington Post, joined by other Maryland newspapers and the Maryland-Delaware-D.C. Press Association, sought a preliminary injunction in August 2018, arguing that the Act’s publication and inspection requirements were an unconstitutional compelled-disclosure scheme imposed on neutral third-party platforms rather than on the political speakers who buy the ads. The U.S. District Court for the District of Maryland agreed and preliminarily enjoined enforcement of those requirements as applied to the plaintiff publishers.

Fourth Circuit Ruling: In The Washington Post v. McManus, decided December 6, 2019, the U.S. Court of Appeals for the Fourth Circuit affirmed that preliminary injunction. The court expressly declined to decide whether strict or exacting scrutiny governs a disclosure law of this kind, holding instead that the Act’s publication and inspection requirements failed even the more forgiving exacting-scrutiny standard applied to campaign finance disclosure rules, because the state had not shown a substantial relation between the burdens it imposed on platforms and its interest in deterring foreign election interference. The ruling reached the publication and inspection requirements as applied to the plaintiff news organizations; it did not invalidate the Act as a whole.

Binding Precedent: The Fourth Circuit’s decision established binding precedent within its jurisdiction on the limits of compelled disclosure obligations placed on the platforms that carry political advertising rather than on the advertisers themselves.

Digital Politics Implications

The litigation addressed a state’s authority to impose disclosure and recordkeeping duties on the platforms that carry political advertising:

• State vs. Federal Authority: The law tested whether a state could impose political advertising transparency obligations on nationally operating digital platforms
• Platform Compliance: Withdrawing from a state’s election advertising market, as Google did, was available to platforms as an alternative to building state-specific compliance systems
• First Amendment Boundaries: The court ruling established limits on state power to place mandatory disclosure and recordkeeping obligations on the platforms that carry political ads rather than on the ad purchasers

The Act’s publication and inspection requirements remain enjoined as applied to the plaintiff news organizations; the statute otherwise remains on the books.