NEWS: Google Will Pay $400,000 to End Political Ad Lawsuit Brought by Washington State
NEWS: Google Will Pay $400,000 to End Political Ad Lawsuit Brought by Washington State
But questions remain about big legal issues at the core of the now-settled suit, a similar suit that's still going against Facebook, and the future of online political ads in Washington
Google is going to pay $400,000 for repeatedly violating Washington State campaign finance law, according to state officials. The payment will end a lawsuit brought last year by the Washington State Attorney General, Bob Ferguson, who’d accused Google of ignoring the state’s unique, nation-leading mandates for transparency in online political ads.
But in an odd twist that shows how hotly contested and dangerously unsettled this area of the law remains, Google is spelling out in the settlement agreement that it’s making this $400,000 payment “without conceding” the company is actually subject to the Washington State laws in question.
“While we continue to take issue with the applicability and enforceability of the State’s political advertising and disclosure laws,” a Google spokesperson told Wild West, “we’re settling this case because we believe the best way to resolve this matter is to work collaboratively with Washington State regulators to reform those laws, rather than litigate our position in court.”
Ferguson, in a statement of his own announcing the deal, said: “Google is one of the largest corporations in the world, and should be able to figure out how to follow our campaign finance laws.” He noted that Google will be paying an additional $23,000 to cover the state’s attorneys fees in this matter and that this $400,000 penalty is “double” what Google paid in 2018, when it settled an earlier lawsuit brought by Ferguson over the exact same issue.
The settlement Google agreed to in 2018 allowed the company to avoid any admission of guilt, but Ferguson warned at the time that Google needed to start complying with Washington State law immediately or else “they’re going to hear from us again.”
Instead of creating a working compliance mechanism, Google appeared to bank on the fact that in June 2018, in response to the filing of Ferguson’s first lawsuit, it had banned all local political ads targeting Washington State’s elections. If Google’s ban had been airtight, the company wouldn’t have had to worry about complying with Washington State’s disclosure law anymore, because it wouldn’t have been selling any local political ads covered by the law and associated rules.
But Google’s ban wasn’t airtight. Between June 2018 and February 2020, when Ferguson announced his second lawsuit against Google, the tech giant allegedly sold $461,344 worth of political ads targeting Washington State’s elections. Ferguson says those Google ads were purchased by 57 different candidates in Washington State despite Google’s supposed statewide ban.
Various arguments have been offered by Google to justify its contention that it doesn’t have to comply with Washington State’s election law, including the fabulously circular argument that because Google bans political ads in Washington State, it doesn’t have to comply with Washington State transparency law when it nevertheless sells such ads. Google has also claimed that the federal immunity it’s given under Section 230, the controversial and foundational law of the present-day internet, supersedes any right Washington State may have to regulate its own elections in this manner.
Even after the new settlement is officially approved by a judge, Google says it will continue to ban local political ads in Washington State while it works to “reform” the state’s current political ad regulations. And as the text of Google’s agreement with Ferguson shows, the company is continuing to hold fast to its desire to float somewhere beyond the reach of Washington State election law. So what message is Ferguson sending by declining, for a second time, to go all the way to the legal mat in enforcing Washington State’s on-the-books laws against Google? What does it mean that he’s allowing Google to pay $400,000 while the company also writes into the deal that it’s “not conceding” the enforceability of the very laws it’s Ferguson’s job to enforce?
Ferguson didn’t directly answer this question but told Wild West: “Repeat violators of Washington’s voter-approved campaign transparency laws will be held accountable. If they continue to violate the law, the penalties will continue to escalate.”
Google has a market capitalization of around $1.65 trillion. Paying $200,000 one year and $400,000 three years later to Washington State isn’t going to break the company’s financial stride. Even if the penalties Ferguson demands were to double with each new lawsuit filed against Google over this issue, at the current rate it would take five more lawsuits and five more settlements for Google to be hit with a bill over $10 million. By then we’d all be 15 years older (or dead but paying a monthly fee for our digital souls to live eternally on some new Google cloud offering).
The birth of the most recent lawsuit filed by Ferguson against Google traces to two complaints lodged with the Washington State Public Disclosure Commission, the frontline agency for enforcing state election law. After lengthy investigations, the PDC’s commissioners then referred those complaints to Ferguson for potential prosecution. One of the complaints came from Tallman Trask, a second-year law student at the University of Washington who’d sought disclosures from Google about ads the company sold targeting Seattle’s City Council races in 2019. The other complaint came from me, after Google failed to give me any information about a relatively small Google ad buy that targeted a very off-season, very bland ballot measure fight in Spokane in February 2019.
Under state rules, Google should have directly provided to any requestor, within 24 hours, a lot of details on the financing and reach of any ads it sold targeting local elections in Washington State. It didn’t do that. I’m still waiting for Google so send me anything directly about those Spokane ads, though it did give the information to investigators for the PDC who later passed the information on to me.
In an email sent yesterday to the PDC’s executive management team and its governor-appointed commissioners, the agency’s director, Peter Lavallee, said the attorney general’s office didn’t seek the commission’s approval before entering into this new settlement agreement with Google, “so its terms catch us all a bit by surprise.”
Lavallee continued: “I am disappointed that the stipulation allows Google to settle the case without conceding the enforceability and applicability of the Fair Campaign Practices Act and our rules.”
Brionna Aho, a spokesperson for the AG’s office, said: “We briefed the Public Disclosure Commission prior to the resolution, but the decision is the AG’s to make.”
Google was not the only tech giant facing its second Ferguson-led lawsuit in three years over alleged failures to follow Washington State’s campaign finance law. Ferguson sued Facebook in 2018, too. As with Google, he settled that 2018 Facebook lawsuit for a $200,000 payment but no admission of guilt. And then, in April 2020, Ferguson decided he had to sue Facebook again for failing to follow the same law. Now his office is more than a year into legal maneuverings in that second Facebook lawsuit, with a trial set for early December.
Facebook is being represented in that suit by a former Republican attorney general for Washington State, Rob McKenna. Through McKenna, Facebook is asking a Seattle judge to strike down Washington’s political ad disclosure regime, contending, among other things, that it’s an unconstitutional violation of Facebook’s First Amendment rights. “Which could put that law and the transparency it provides the public in jeopardy,” Ferguson noted in an aside to his statement announcing the Google agreement.
That’s certainly true. But which way does this potential jeopardy push Ferguson? And does Ferguson’s new settlement with Google mean the AG is open to a similar settlement with Facebook that would allow Facebook to pay a fine “without conceding”?
“We do not comment on settlement conversations,” Brionna Aho, the AG spokesperson, told Wild West. “That said, in contrast with Facebook, Google cooperated with our investigation.”
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