Transparent. Accessible. User friendly. Many of the key principles that serve as the foundation for inclusive elections resonate strongly with the startup community. In order to foster joint discussion and problem solving, the brought together lawyers, technologists, policy wonks, and investors for “Moving Politics to the Web: How Technology Can Change Politics” on February 18, 2016 in San Francisco.
Launching the discussion with a question on how the law shapes the use of technology in politics, moderator Charles Belle recognized the cross disciplinary perspectives of the panel. Ann Ravel is the Chair of the Federal Election Commission for 2015 and former chair of the California Fair Political Practices Commission. As a lawyer with a background in consumer litigation, Commissioner Ravel spent much of her life working in Silicon Valley and developing an appreciation and understanding of technology. Joining her on the panel was Chris Kelly, the first Chief Privacy Officer, General Counsel, and Head of Global Public Policy for Facebook. Since his departure from Facebook, Kelly has gone on to invest in an array of technology, media, and finance companies, as well as the Sacramento Kings NBA team. The only non-lawyer on the panel, Matt Mahan, is the CEO and cofounder of Brigade, a civic engagement platform that seeks to provide accurate and tailored information to voters and potential voters. Mahan was formerly the CEO of Causes, the grassroots campaigning app, before its acquisition by Brigade. Moderator Charles Belle is the CEO and founder of Startup Policy Lab. Belle also works as a lawyer and has fellowships with Stanford’s Center for Internet & Society and Berkeley’s Center for Technology, Society, and Policy.
Law, Technology, and Campaign Finance
Campaign finance laws, and the entire campaign finance regulatory framework, are built on a principle of disclosure that naturally creates opportunities for technology solutions. This movement for disclosure began in earnest following the Watergate scandal. In 1974, Congress amended the Federal Elections Campaign Act and established the Federal Election Commission. The FEC’s central
As Commissioner Ravel noted, the campaign finance framework is mostly built for communication technologies and is not updated for current realities. Meeting regulatory requirements for disclosure presented initial challenges for tech companies. Ads and thumbnails lacked the physical space to include the language required in televised commercials, for example. Kelly noted that Facebook faced this issue early on when it experimented with political advertising and pages for political candidates. Commissioner Ravel highlighted the simple solution; click-through links could provide the disclosure language on the following screen after users click the ad, rather than dominate the ad itself.
At the same time, current technologies could facilitate the mission of disclosure. The Senate has paper-based filing requirements that can result in information only reaching the public after an election. The FEC had forty years of campaign finance data in paper files, not reaching the public. Their former website did not present data in a format that truly gave citizens access.
In response, the FEC partnered with the government’s innovation hub, 18F, to build beta.fec.gov. Built in a lean startup model within the federal government, 18F embodies the relatively tech-forward approach of the Obama administration, which panelist Kelly praised. The beta.fec.gov platform links an open source API of campaign finance data with sorting features, maps, and calendars, available for voters and candidates alike. Through the website, the FEC is able to make the campaign finance data they have more accessible.
However, Commissioner Ravel recognized the challenges the FEC had in tracking so called “dark money.” This term refers to funds that donors channel through nonprofits in order to face less stringent disclosure requirements. Already, the 2016 presidential election is seeing four times the level of dark money contributions as in the 2012 election. Without the votes on the Commission to compel disclosure through laws and regulation, the public might instead need to turn to technology solutions to track funding.
One of the biggest challenges to election oversight and citizen engagement remains the inaccessibility of data. Open data is information that can be easily used and accessed by the public and policymakers at any time to track performance and conduct analysis to develop innovative problem solving. Kelly highlighted how government accountability requires transparency while corruption thrives where transparency is lacking. Further, private vendors hold exclusive rights to data that panelists note should be in the public domain—notably voter registration files and judicial opinions. No panelists directly referenced particular vendors. Still, they strongly hinted at the problematic nature of companies that owned private political voter databases for political parties’ microtargeting and expensive sites that cater to legal research. While the public would benefit from more comprehensive and accessible open data, these vendors have opposing incentives to maintain their monopolies for their economic benefits.
Seeking to compile what should be straightforward voter information for all Americans, Brigade focuses on open election data for the purpose of citizen engagement. Because of the decentralized nature of elections across thousands of jurisdictions in the US, a voter has no single source of information to find her local polling station, elected officials, or voter registration deadlines. The average American voter, according to Mahan, is represented by an average of forty elected officials, but even the most politically active citizens can name only ten. Further, American voters are mobile among jurisdictions, but civic engagement opportunities and resources vary widely as people move from place to place. Parties and candidates with the funds to access this data have the information they need, but the public remains in the dark. This incentive problem for parties who can afford access to private vendors’ voter databases comes up against the lack of local government resources or guidelines to make uniform data publicly available. The ideal solution, according to Mahan, would be to have the government make all public data publicly available and then allow private actors to develop user-friendly tools to use the data. Still, the question of standardization across jurisdictions remains a problem.
Even as technology helps advance other aspects of voter engagement and election management, election technologies themselves remain a source of frustration and dysfunction. According to Kelly, if there were ever an argument for open source software in government, election technology was the strongest. Open source software is software for which the source code is published and open for ongoing collaborative distribution, review, and improvements with no licensing restrictions. Kelly argued open source election technologies would allow greater transparency and accountability, to increase public confidence, and allow regular updates, to ensure security. Currently, e-voting vendors benefit from proprietary software, but voting technology across jurisdictions is often inconsistent and antiquated.
Simultaneously voicing their frustration, none of the panelists were optimistic about online voting in the near future. Kelly cited the counterincentives of vendors as well as inertia of government actors who resist transparency efforts. Commissioner Ravel shared examples of failed attempts at online voting trials that ended abruptly when they were hacked during beta testing. While she shares Mahan’s optimism for technological solutions in the future that would protect both security and voter secrecy, she does not expect to see online voting in the US in her lifetime.
In closing, each of the panelists shared their rallying cries with the audience. Commissioner Ravel called on government actors to make all data accessible and for the public to make use of the data on beta.fec.gov. Mahan echoed Ravel’s call for government to make data open and then encouraged tech innovators to create platforms for meaningful participation. Kelly closed the event with a call for basic principles: Demand open data and open source election technology.
Notably, this event comes nearly one year after the BTLJ Symposium on Open Data, which took place in April 2015. Please stay tuned for a forthcoming journal volume dedicated to the the Symposium presenters’ articles.
For additional information in the meantime, check out this primer on open data that Professor Chris Hoofnagle and BTLJ members Emmie Tran and Ginny Scholtes wrote for last year’s Symposium.