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.