Texas Ethics Commission will require influencers to disclose when they're paid for advertisements

ByRobert Downen, The Texas Tribune
Monday, June 24, 2024
Texas' anti-censorship law awaits SCOTUS ruling
A law intent on blocking censorship of social media posts based on political views is currently under review in the U.S. Supreme Court.

Texas' top campaign finance watchdog voted Tuesday to require social media figures to disclose when they are paid for political advertisement, nearly a year after The Texas Tribune reported that influencers were being quietly paid to defend impeached Attorney General Ken Paxton.

The video above is from a 2022 report.

In a 7-0 vote, the Texas Ethics Commission gave final approval to the changes, which were first proposed in March.

Last summer, the Tribune reported on a new company, Influenceable, that was paying Gen Z influencers to create or share social media posts that attacked the impeachment process and the Texas Republicans leading it, including House Speaker Dade Phelan. Commissioners did not mention the company directly on Tuesday, but said at their previous meeting that the changes were in response to "at least one business" that was paying social media figures for undisclosed political messaging.

Influenceable has a partnership with Campaign Nucleus, a digital campaign service that was founded by Brad Parscale, a top official on former President Donald Trump's last two campaigns. It also received $18,000 from Defend Texas Liberty in May 2023, after which influencers began to parrot claims that Paxton was the victim of a political witch hunt, accuse Phelan of being a drunk or urge their millions of collective followers to come to Paxton's aid.

Defend Texas Liberty is a political action committee that two West Texas oil billionaires, Tim Dunn and Farris Wilks, used to give more than $15 million to far-right campaigns and candidates in the state since 2021. The two are by far Paxton's biggest donors.

The new change amends the commission's rules to clarify that disclosures are required for those who are paid more than $100 to post or repost political advertisements.

"This is not the case of the TEC inventing a substantive requirement to rule making," the commission's general counsel, James Tinsley, said before the vote. "It's quite the opposite. It's pairing back an exception."

The rule change was strongly opposed by groups and figures funded by Dunn and Wilks, who decried it when it was first proposed earlier this year and claimed that the commission was creating a "secret speech police" that could target citizens for routine social media posts. Some of the loudest critics of the proposal, including the right-wing website Texas Scorecard, have for years been involved in lawsuits that challenged the constitutionality of the commission and sought to strip it of most of its regulatory powers.

Others argued that it did not go far enough because it held social media users accountable, but not those who pay them and fail to disclose as much.

"I just don't want to pass the buck onto people that are literally only posting these because they'll get $75, $80 or $90 out of it," Andrew Cates, an Austin-based attorney focused on political campaigns, testified Tuesday.

The commission's executive director, J.R. Johnson, agreed with Cates that the change is narrowly tailored, but added that it does prevent the commission from pursuing new rules in the future that deal with those who are paying social media users to post their political advertisements.

Campaign law experts have previously said that company's like Influenceable reflect a decadeslong failure to modernize disclosure rules, many of which have not been updated since the widespread proliferation of social media or the internet.

"The (federal) laws around disclosure of campaign spending assumed a traditional model, like paying somebody to print your ad in the newspaper or paying a TV station to play your ad on the air," Ian Vandewalker, an expert on the influence of money in politics and elections at the Brennan Center, told the Tribune last year. "Paying an influencer to talk about a candidate doesn't fit into those traditional definitions, and so it's slipping through the cracks."

Texas has some restrictions on out-of-state donations, limits donations during the biennial legislative session and requires disclosures of political advertising that contain "express advocacy." But otherwise, one longtime campaign finance lawyer said, the state's rules allow "dark money to run amok."

"If you're not actually advocating for or against the election of someone or a proposition, then you pretty much fall outside" most regulations, Austin lawyer Roger Borgelt said last year.

This year, some Republican state lawmakers have called for ethics reform during the 2025 legislative session, citing what they said was a flood of misinformation and deceptive advertising during this year's GOP primaries. Others directly cited Influenceable, and called for legislation to curb companies like it when lawmakers meet next year.

"I'm somebody who cares about truth and motivation," State Rep. Tom Oliverson, a Cypress Republican who is currently running for Texas House Speaker, told the Tribune last summer. "I really dislike manufactured outrage and manufactured narratives. I prefer people to be honest, straightforward and truthful. And so I do think that, at a bare minimum, these things should have to be disclosed."

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans - and engages with them - about public policy, politics, government and statewide issues.