The Federal Election Commission voted Thursday to approve a draft advisory opinion to allow a Google pilot program enabling verified campaigns, political party committees and leadership PACs to circumvent Gmail’s algorithm for filtering out spam – sending fundraising emails straight to users’ inboxes.
Google has dominated the email service space for years. More than 1.8 billion people use Gmail in 2022, up from 1.5 billion in 2019. Google’s legal counsel Claire Rajan, a partner at the law firm Allen & Overy, told the commission Thursday that 10 million emails go to spam every minute. Google’s pilot program would test exempting email senders registered with the FEC from “forms of spam detection to which they would otherwise be subject,” according to the request.
The tech giant’s request came during a period of pressure from Republicans alleging Google’s algorithm unfairly sends conservative fundraising emails to spam. On June 15, Sen. John Thune (R–S.D.) introduced the Political BIAS Emails Act of 2022, which would “prohibit providers of email services from using filtering algorithms to flag emails from political campaigns that consumers have elected to receive as spam.” Google submitted its request to the FEC on July 1.
When FEC Chairman Allen Dickerson pressed Google’s counsel about GOP complaints of Gmail algorithm bias, Rajan insisted this pilot program is for a “commercial purpose” rather than a political purpose – the legal precedent cited from an earlier advisory opinion allowing Microsoft to provide free enhanced security for campaigns. The opinion stated that such services did not count as in-kind contributions if the company sought to enhance the user experience “based on commercial and not political considerations, in the ordinary course of its business and not merely for promotional consideration or to generate goodwill.”
But Rajan admitted Google received feedback “every day” from politicians and is looking to “enhance the product based on that feedback.”
No stranger to political lobbying, Google’s parent company, Alphabet Inc., has spent around $129.3 million on federal lobbying since 2014. At least two firms registered to lobby for Alphabet Inc. directly addressed Thune’s bill and platform bias issues during the second quarter of 2022, an OpenSecrets analysis of lobbying disclosures found.
“The evidence suggests that some actors in the tech industry display an undeniable pattern of ideological bias against conservatives,” Senate Majority Leader Mitch McConnell (R–Ky.) said after Thune introduced the Political BIAS Emails Act in June.
Republican outrage over email bias arose after GOP fundraising fell during the second quarter of 2022. Online donations through the Republican online fundraising platform WinRed dropped 12% from the first to the second quarter, the New York Times reported, while contributions to the Democratic ActBlue rose 21% during that time.
Commissioner Trey Trainor raised widely-cited findings by researchers at North Carolina State University that found spam filtering algorithms from the three largest email providers did show political bias – but not always against Republicans. The research team created 102 email accounts and subscribed to political campaigns for both presidential, 78 Senate and 156 House candidates from July 1 to Nov. 30, 2020. Gmail sent 59% more emails from Republican candidates to spam, their analysis showed, while Outlook and Yahoo sent more Democratic emails to spam – about 20% and 14% respectively.
Those findings were “misstated,” Rajan responded, and outside the legal scope of the question.
Commissioner Ellen Weintraub, the sole “no” vote on the Commission, noted it was a “smart choice” to exclude super PACs, as scam PACs are “less often” an issue with committees controlled by candidates or party committees.
Weintraub also said she is “sympathetic to all the commenters.”
Over 2,700 public comments poured into the Commission from July 9 to Aug. 5. The vast majority of comments vehemently opposed the proposal.
The Democratic National Committee’s comments opposing Google’s pilot program raise concerns that “Republican campaigns, party committees, and leadership PACs—the very entities Google proposes to exempt from its spam filters—have engaged in a variety of fundraising practices designed to mislead donors.”
“The volume and effect of these deceptive solicitations is substantial,” the DNC wrote, highlighting the prevalence of “predatory email tactics” such as tricking donors into making recurring contributions with pre-checked boxes, false promises to match political contributions, fake sweepstakes and other misrepresentations. While the examples in the DNC’s comments feature Republicans, both parties have recently faced scrutiny for online fundraising practices – including pre-checked boxes and claiming matching political contributions.
Citizens for Responsibility and Ethics in Washington and the Campaign for Accountability also submitted comments opposing the pilot program.
“Google should be aware that if it decides to move forward with its ridiculous and wildly unpopular plan to allow political campaigns to send spam email without consequence, it will face unprecedented backlash from its users, who overwhelmingly do not want this change to happen,” Josh Nelson, the CEO of Civic Shout, told OpenSecrets in a written statement.
Nelson submitted comments opposing the pilot program along with the names and zip codes of “15,166 Americans” Civic Scout collected through an online petition opposing Google’s pilot program.
“The proposal to allow political emails to bypass spam filters is a horrifically bad idea. Not only does it allow anyone who pretends to be a ‘politician’ to spam me with impunity, it encourages the most abusive and misleading forms of political advertising, which will make political discourse even worse than it already is,” one respondent wrote.
Another commenter was more direct: “I don’t give a rat’s patootie if the RNC thinks they’re being discriminated against,” citing the need for more research to demonstrate such a bias.
Rajan said those comments were an important part of the process, but that they reflected the fact that “people don’t like spam.”
The National Republican Senatorial Committee took a different approach to the pilot program. In a draft memo obtained by the Washington Post, the NRSC calls the pilot program “unacceptable,” arguing Google should instead allow “any 2022 campaign the option to reset their email domain, restoring their email reputation” – one of the factors Gmail’s algorithm looks to when determining if an email is spam.
“We demand all Republican Senators get Gmail mitigation, the same fix Google has provided to a handful of campaigns and committees,” the NRSC memo reads, according to the Washington Post. “This should be done in such a way that a warmup period is not required, so that emails may be sent by campaigns at the same rate they were sent before a reset without being immediately flagged as spam. The same option should also be made available to any Democrats concerned about email inboxing.”
While Vice Chair Dara Lindenbaum said that she also did not “want to” vote for the pilot program, she said she would vote yes because “the commission’s precedents permit this.” Lindenbaum also said she didn’t want to “hamstring innovation and pilot programs.”
The motion passed with four votes from Dickerson, Lindenbaum, Trainor and Commissioner Sean Cooksey. Weintraub was the only opposition vote, and Commissioner Shana Broussard abstained.
