The 29,503,030 people who follow Barack Obama's Twitter account might see his picture, see his name, see that little blue verified account badge and think they're following the President—but it's not him. All of the President's named social media accounts, in fact, have been handed over to a non-partisan, not-for-profit group that isn't overly concerned if you didn't notice the transition. As the first sitting President with a Twitter account, the murky handover raises questions that didn't exist ten years ago—can a politician legally hand over his valuable online identity to an outside group? is it ethical?—and makes clear federal regulators are unprepared to answer them.
Obama was one of the first politicians to recognize the potential of social media in communicating with voters. His Twitter account was created by a staffer on March 5, 2007, two months before he formally announced his Presidential candidacy. Throughout that contest, his first term, and second campaign for the presidency, Obama's campaign staff used it to share news about the President's policy priorities and to try and engage Americans in his efforts. Then, in January, it handed the reins to Organizing for Action, a new entity that took over much of Obama's campaign apparatus: website, social media accounts, email list—even the abbreviated shorthand of "OFA." The organization updated the bios associated with the social media accounts ("This account is run by Organizing for Action staff") and then kept tweeting and Facebooking, with a new emphasis on joining—and, ideally, contributing to—the new OFA. Without skipping a beat, a brand-new organization gained millions of followers on social media. It's like the President, mid-conversation, handed his phone to a telemarketer who does a great Obama impression. Or, to be more accurate, one telemarketer—the campaign—handed the phone to another one.
But to the government, OFA and the Obama campaign are very different legal creatures. Organizing For Action was created earlier this year as a 501(c)(4) non-profit under IRS code—the same as other political non-profits, like the conservative groups FreedomWorks and Karl Rove's Crossroads GPS. There are particular things a 501(c)(4) can and cannot do. It can raise scads of money, which is appealing to political organizations. But it cannot expressly advocate for a political candidate, which some organizations tend to consider a bit of an impediment. What a 501(c)(4) can do politically is what's known as issues advocacy, pressuring elected officials and candidates on issues for the "promotion of social welfare." This vague-sounding phrase is legally vague as well, and has generally been interpreted to allow for pretty much any sort of political statement short of "Vote For Candidate X." So if Organizing For Action wants to, say, convince Congress to support background checks, it can send material to voters in a senator's district, requesting that they call their senator and demand he vote the right way.
Or, easier, they can tweet a similar request.
If you're someone who started following the President during last year's election, this could easily appear to be a request from the President of the United States—or, perhaps obviously, one of his staffers—asking that you contact your Congressmember. It isn't. He may not even agree with what it says.
This is an unprecedented development. In part because of the novelty of social media, no major candidate for office has transitioned his political campaign's online communication into an external advocacy organization. The federal regulators who watch campaign and non-profit activity haven't addressed the practice. Nor has the organization said much about the relationship.
Here's how it works. There are three entities involved: the President, his campaign, and the non-profit OFA. The campaign has always owned and operated the social media accounts, since their instantiation. During the last year's election, staffers for the campaign, Obama For America, managed the social media presence, under the ultimate direction of the President.
According to an OFA official who asked not to be identified, that changed in early February. On the sixth of that month, OFA "made arrangements" with the campaign for use of the website and operation of the social media accounts—an agreement that may include "leases or sales" of those assets to OFA, which income would show up in the campaign's FEC filings.
In summary, then, the President—independent of both of the other two organizations—receives the benefit of political action from OFA as he did from the campaign. The campaign entity allows OFA to use the accounts, which will likely result in a financial relationship between the two. Both OFA and the campaign receive contributions from donors.
It's an arrangement complex and specific enough that there's little question it falls within the letter of the law—perhaps in part because the law lags badly behind technology and political campaigns in considering the role of social media in politics.
(A note: This article focuses primarily on OFA's Twitter account. The organization also controls the barackobama.com domain and its presences on Facebook and Tumblr, but Twitter is the most interesting example, and a broadly representative one.)
@BarackObama and the law
The body responsible for determining when organizations and elected officials break campaign finance law is the Federal Elections Commission. The FEC is a non-partisan body comprised of six commissioners—three Democrats, three Republicans—that evaluates gray areas of campaign activity and renders judgment.
There are two reasons that the FEC opinion usually trails political activity, as it very much is in the case of social media. The first is that it is necessarily responsive. Some organizations seek prior approval for situations that lie on the borders of existing law, but many apply a "ask forgiveness, not permission" mantra. The other reason the FEC trails is that it's a body comprised of an equal number of Democrats and Republicans. In Washington, D.C., that's a sure-fire formula for ties—and at the FEC, a tie goes to the status quo.
The agency's primary concern is ensuring voters know who pays for what, who, for example, "approves of this message." But their antennae are mostly focused on money, not perception. Since there is value in @barackobama's 29 million followers—if you were to buy that number of followers from an online site like FollowerSale.com, it would cost you in excess of $153,000—how it might change hands is important, regardless of the name it carries. (The organization does have its own Twitter account, @OFA, which is much less popular.)
Jason Kaune, a partner at the California law firm Nielsen Merksamer, specializes in political law and ethics. Political campaigns, he told me, "have gotten much more aggressive, and both the IRS and the FEC have given them room to do it." Obama, while not eligible for reelection, is still subject to the candidate rules that those two agencies develop. And "when something's given to a candidate they have to pay for it."
But, he notes, "this is the reverse, a sitting candidate gave something to a (c)(4)"—namely, the social media accounts. Obama is getting political benefit, but not any economic benefit—so the FEC wouldn't care. This also explains why OFA will likely pay for use of the accounts. In that case, there's no gift at all.
More importantly, OFA has no FEC obligation to be explicit in each tweet that @barackobama isn't actually Barack Obama. First of all, FEC rules only apply to electoral activity. But regardless, no FEC decision or issued rule clarifies how campaigns may or may not use social media. In 2010, Roll Call reported that the agency wasn't "in any particular hurry to map out" that uncharted territory. "The closest the FEC has come to entering the brave new world of social networking," it reported, "was a 2002 advisory opinion on text messaging, well before the method was notably used in the 2008 election by Barack Obama’s Presidential campaign." In that case, an opinion from the vice chairman suggested that text messages are exempt from standard disclaimers required on ads "since text messages are so small." That's about it. (The idea of Twitter fine print has plagued the Federal Trade Commission, too.)
If OFA treads into political territory, things change. Let's say that Barack Obama endorsed Elizabeth Colbert Busch for Congress in South Carolina against Mark Sanford. If the group were to tweet from @barackobama, "Voters in South Carolina, don't forget to go vote for Elizabeth Colbert Busch tomorrow!"—that would be a violation, even though it's theoretically "Barack Obama" tweeting it. As a (c)(4), OFA can't officially endorse or expressly advocate for a candidate. (This, too, is a blurry line that's not worth getting into for the purposes of this article.) It's perfectly fine for a group to tweet an endorsement or call to electoral action without a disclaimer; the FEC doesn't care about that. But OFA can't because of its IRS status. If OFA were not a non-profit, it could tweet endorsements for candidates in the President's name to its heart's content. Whether or not the President supported the candidate, but that's a question for later on.
Kaune notes that Obama's clearly getting a benefit from OFA's advocacy, but it's not one that the FEC captures. As he says, "I think it's more in the 'there oughtta be a law' category than 'a law is being broken.'"
The ethics of @BarackObama
The letter of the law notwithstanding, there's clearly a question of whether or not the seamless transition from an organization directly linked to the President to one that is wholly independent and reliant on donations is ethical. And the response to that is subjective.
Technically, OFA does reveal that the @BarackObama account isn't controlled by the President. But you only see that if you visit the account page, which most Twitter users wouldn't. At the time that @BarackObama changed hands, this was the only tweet that referred to OFA.
Organizing for Action is the next step in our grassroots movement, crucial to finishing what we started. Be part of it: OFA.BO/Lk1pEf— Barack Obama (@BarackObama) January 21, 2013
Far from being an explanation in the change of ownership, it's the telemarketer taking over with a sales pitch.
It's also worth noting that the bio still says, "Tweets from the President are signed -bo." That inclusion helps blur the distinction between the President and the account. If he still tweets from @BarackObama, it must still be associated with him, right? The last time the account included a "-bo" tweet was the day of his second Inaguration—before the handover.
I'm honored and grateful that we have a chance to finish what we started. Our work begins today. Let's go. -bo— Barack Obama (@BarackObama) January 21, 2013
If you open any tweet from @BarackObama, it's clear that the distinction between the account and the President is lost on a lot of people. There are regular requests for the President to follow users back, for example, and praise for policy measures. There doesn't appear to have been a time at which OFA responded in an effort to clarify ownership of the account.
"The @BarackObama Twitter account clearly states in its description that it is controlled by Organizing for Action," the OFA official told us, "and this is a Twitter handle that has been controlled and used for years by a nongovernmental organization—Obama for America—without any problems with confusion."
Kaune points out that OFA's management of @BarackObama is "no different than Senator So-and-so who doesn't know how to use an account and has a staffer do that." But in that case, the social media-savvy staffer works directing for the senator. OFA and Obama have no official relationship.
The role of Obama in OFA
The arms-length relationship between Obama and Organizing For Action is based on its legal status as a non-partisan organization. As Politico reported in February, the organization updated its guidelines to make that point clearly.
The organization on Wednesday quietly posted new guidelines on its website formally declaring its intention to stay out of campaign politics.
“Neither OFA nor its chapters will be involved in any way in elections or partisan political activity,” OFA wrote. “Its exclusive purpose is public policy advocacy and development, and in particular, both enactment of President Obama’s legislative agenda and the identification and advancement of other goals for progressive change at the state and local level.
How OFA ensures it's in sync with that legislative agenda has been covered before. OFA is run by Jim Messina, the man who also managed the President's reelection campaign. Leaders in the organization—measured in part by how much they contribute—meet regularly with the President and his advisors to learn about their priorities. But, according to the official we spoke with at OFA, actual coordination is minimal. "Generally speaking, Organizing for Action, as a private and independent organization, does not coordinate its digital communications, including those on Twitter, with the White House," said the OFA official. "When the President or the First Lady communicates directly with Organizing for Action's supporters, the White House is necessarily involved in reviewing those communications."
This is not dissimilar from other organizations that work to promote components of the President's agenda – though OFA may have less trouble getting someone on the phone.
Twitter verification fails again
It's not only OFA's fault that people think they're talking to Barack Obama on Twitter—Twitter's telling them that, too. Despite having no legal or personal relationship with the President, the account is verified by Twitter. Despite repeated emails and phone calls, no one from the company responded to our attempts to talk. It's not the first time that a verified account hasn't actually been the purported user. In January of 2012, the company verified Rupert Murdoch's wife—although she wasn't the one tweeting from the account.
Twitter should not still be struggling at negotiating political issues. In 2009, for example, the company came under fire for including Gavin Newsom, then mayor of San Francisco, in its suggested users list. Newsom saw a huge surge in followers—at the same time during which he was planning to run for governor. That's a clear benefit to a candidate and, while Twitter wasn't sanctioned in any way, it shortly revamped its system.
It might be argued that the off-chance of Obama again tweeting from the account using "-bo" is enough to warrant verification. He could tweet similarly from any account, of course—one tweet does not an account make.
There are simple steps that OFA could take to clarify its role on social media. An obvious one would be to change the name of the account, something akin to what the Vatican did in-between Popes. It could respond to confused users. It could change the image associated with the account. But there's not much incentive for OFA to do so.
The President's press office loudly proclaims its commitment to "creating an unprecedented level of openness" in government. "We will work together," it writes, "to ensure the public trust and establish a system of transparency, public participation, and collaboration." As an entity independent of the President, Organizing For Action appears not to be beholden to that mantra.
This post previously appeared on The Wire.