Key Takeaways
- Campaigns, political action committees (PACs), and advocacy groups now routinely include influencers and creators in their media strategies, but the regulatory framework remains unclear.
- Foreign influence is the area drawing the most legislative attention.
- Thin or ad hoc documentation creates liability for both content creators and their sponsors.
Influencers and content creators have become major channels for political messaging. This practice has matured rapidly; like corporate brands before them, campaigns and PACs now routinely use creators as part of their paid media strategies.
There are few rules specifically governing influencer and creator marketing in the political space, and regulators often try to shoehorn these programs into rules designed for older media. The result is a patchwork of federal and state obligations under campaign finance, lobbying, and foreign agent registration laws. These different – and sometimes competing – regulatory schemes usually do not squarely address influencer programs, which may operate on handshake arrangements with thin documentation and informal terms. This creates risk for both content creators and their financial sponsors.
Foreign Influence
The possibility of foreign involvement in political and issue advertising and the emergence of the “influencer as lobbyist” – a creator who is paid to persuade government officials on policy, rather than to persuade voters – has driven policymakers to contemplate new restrictions on influencer marketing.
These efforts occur against the backdrop of FARA, which already requires persons acting as an agent of a foreign principal to register with and report to the U.S. Department of Justice (DOJ), subject to certain exemptions. FARA’s plain text clearly reaches an influencer who acts on behalf of a foreign government, either directly or through intermediaries, to create content aimed at shaping U.S. public opinion or policy – including efforts to influence U.S. elections. In recent years, some states have passed their own versions of FARA that apply to content distributed or viewed within their jurisdiction.
Whether individual influencers and creators are complying with FARA or its state analogues is another question entirely. In practice, intermediaries – agencies, consultants, and production companies – may register, but individual creators whose faces and voices an audience sees and hears may not; indeed, influencers may not even know where the money they receive comes from. The September 2024 DOJ indictment of two RT – formerly Russia Today – employees for conspiring to violate FARA and engage in money laundering is a prominent example. In that case, nearly $10 million in Russian government funds was funneled through a Tennessee-based media company to pay prominent creators, who maintained they were unaware of the funds’ source.[1]
Congress has also narrowed the compliance aperture for influencers acting on behalf of certain designated countries of concern, such as Russia and China. The PAID OFF Act, which became law after it was passed as part of the FY 2026 National Defense Authorization Act, narrowed provisions of FARA that allowed agents of certain U.S. adversary nations to avoid registration through the law’s commercial activity, domestic interest, or Lobbying Disclosure Act exemptions. A recently introduced proposal in the House, the Foreign Propaganda Disclosure Act, would further amend FARA to expressly include social media influencers within the definition of a “publicity agent” and require them to disclose foreign government funding for political and policy messaging.
Disclaimers, Disclosure and Recordkeeping
Standards for identifying an influencer’s funding are not uniform. Federal and state laws, and platform policies, can take different approaches.
For its part, the Federal Election Commission (FEC) has expressly declined to adopt influencer-specific rules. In its 2023 technological modernization rulemaking, a proposal to regulate influencers was backed by two commissioners but ultimately failed.[2] Nevertheless, the FEC’s existing framework can reach certain influencer distribution tactics like paid boosting or whitelisting. Moreover, campaign finance reports filed with the FEC may not indicate the ultimate recipient of funding if a payment is made to an agency, consultant, or production vendor, rather than to the individual creator account that viewers actually see on their feed or personal page.
Political compliance often turns on proving what happened and when, and who authorized a particular activity. Nevertheless, influencer and creator advertising programs can produce a fragmented trail that includes broadly scoped or short-form invoices, affiliate links, whitelisting arrangements, disappearing posts, and content boosted by multiple parties or collaborators. And if the same consultants, agencies, or production teams work across candidates and outside groups, unexpected “common vendor” coordination questions can arise.
Novel forms of digital media and compressed timelines for pushing out content can also make internal audits and enforcement response difficult. When a platform asks for substantiation, a regulator opens an inquiry, or an opponent files a complaint, a messy or incomplete record makes responding more expensive and harder to defend.
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BakerHostetler helps political and advocacy clients build influencer and creator programs that hold up under scrutiny. Our team includes former FEC officials and counsel to party committees and candidate campaigns at the federal, state, and local levels, with firsthand insight into how complaints are initiated, how agency inquiries develop, and what investigators typically prioritize. We advise on disclaimers and disclosure across jurisdictions, help clients implement workable approval and documentation flows, and spot coordination and reporting risk before content goes live. We also help clients respond to platform escalations, regulator inquiries, opponents’ complaints, and internal investigations.
[1] Two RT Employees Indicted for Covertly Funding and Directing U.S. Company that Published Thousands of Videos in Furtherance of Russian Interests, U.S. Dep’t of Justice (Sept. 4, 2024), https://www.justice.gov/archives/opa/pr/two-rt-employees-indicted-covertly-funding-and-directing-us-company-published-thousands.
[2] See Statement of Commissioners Ellen L. Weintraub and Shana M. Broussard Regarding the Commission’s Adoption of Final Rules in Reg. 2013-01 (Technological Modernization), Fed. Election Comm’n (Dec. 14, 2023), https://www.fec.gov/resources/cms-content/documents/Reg-2013-01-TechMod-Final-Statement-ELW-and-SMB.pdf.
