Last week, the Texas Ethics Commission took the first step in adopting rulemaking that would require social media influencers to include political advertising disclosures when they are paid to post political advertising online.
While the Texas Election Code generally requires paid political advertising that appears on an internet website to include a disclosure statement that includes the name of the person who paid for the advertising, current Texas Ethics Commission rules carve out some exceptions to this.
Under current Texas Ethics Commission Rule 26.1, a disclosure statement is not required on political advertising posted online if the person posting or re-posting the political advertising “is not an officeholder, candidate, or political committee” and “did not make an expenditure exceeding $100 in a reporting period for political advertising beyond the basic cost of hardware messaging software and bandwidth.”
At its March 20 meeting, the Commission voted unanimously to advance an amendment to Rule 26.1 that would narrow the current exception to apply only if the person “did not post or re-post the political advertising in return for consideration.”
A video of the Texas Ethics Commission’s discussion and vote on this proposed rulemaking can be viewed here.
During the Commission’s meeting, James Tinley, General Counsel for the Texas Ethics Commission, discussed the rationale behind the proposal. “This gets at the idea of a candidate or organization paying individuals to post political advertising,” said Tinley. “There, you’d have to have the political advertising disclosing statement stating who actually paid for that political advertising.”
Last year, the website Current Revolt first reported that the social media marketing company Influenceable paid social media influencers $50 per tweet for posts supporting Texas Attorney General Ken Paxton. The Defend Texas Liberty PAC, which is funded almost entirely by prominent political donors Tim Dunn and Farris Wilks, reported spending $18,000 on Influenceable on May 19, 2023.
As previously reported by The Texas Voice, Influenceable’s marketing materials touted the lack of transparency involving paid advertisements made through its platform. In one instance, the materials stated, “Audiences don’t trust the platform, they trust the influencer – communicate to desired audiences using the right influencers without “sponsored” or advertising labels.”
While Influenceable was not mentioned by name during the discussion on the proposed rulemaking, it was clear that the publicity surrounding its business practices provided the impetus behind the proposal.
During his discussion on the proposed rulemaking, Tinley stated that “it’s not a hypothetical” that individuals are being paid to post political advertising online without disclosure statements, adding “there’s at least one business whose business model now is to do just that.” Tinley also noted that the Federal Trade Commission requires social media influencers to disclose when they make sponsored posts.
With the Commission’s unanimous vote, the proposed rulemaking will now be published in the Texas Register. Members of the public will also have the opportunity to submit comments to the Texas Ethics Commission regarding the proposal. Once the public comment period is complete, the proposal will be eligible for final adoption by the Commission at a future meeting.
