Political advertising and social media

The Texas Ethics Commission recently revised rules regulating disclosures in online political advertising. Among other changes, the new rule exempts political advertising shared or re-posted on social media by persons other than a candidate or political committee from general requirements to disclose the message as political advertising and to identify the candidate or person responsible for the ad.

By Paul C. Watler

Newsrooms at Texas newspapers may wish to monitor online political advertising for compliance with the new rules and advertising departments will want to familiarize themselves with the requirements in order to work with campaigns or entities placing buys of online political advertising.

To understand the amendment’s effect, a background of the relevant law is helpful. In Texas, political advertising that expressly supports or opposes a political candidate, officeholder, political party, or ballot measure must include a disclosure statement informing the public that it is political advertising. The disclosure must also include the full name of either the person who paid for the advertising, the political committee authorizing the advertising, the candidate, or the specific-purpose committee supporting the candidate.  

Prior to the amendment, exceptions to the disclosure requirement existed for political advertising printed on certain types of physical media, like letterhead stationery and objects “whose size makes printing the disclosure impractical” (think campaign buttons, t-shirts, pins, and hats). Noticeably absent, however, was any mention of whether the disclosure rules applied to re-posting or sharing of political advertisements by non-candidates on social media or the use of social media for political advertising by candidates or campaigns. Enter the December, 2018 amendment adopted by the TEC.

The amendment provides that a disclosure statement is not required on:

(1) political advertising posted/re-posted on an Internet website, provided the person posting/re-posting the advertising 

(a) is not an officeholder, candidate, or political committee, and 

(b) did not pay more than $100 in a reporting period for political advertising beyond the basic costs of hardware messaging software and bandwidth; 

(2) the Internet social media profile of a candidate or officeholder, provided the webpage clearly and conspicuously displays the candidate or officeholder’s full name; or 

(3) political advertising posted/re-posted by a person on an Internet website, provided the advertising is posted with a link to a publically viewable Internet webpage that 

(a) contains the disclosure statement, or 

(b) is the candidate or officeholder’s social media profile. 

Although compliance with disclosure rules falls on candidates or campaigns placing advertising, Texas newspapers should encourage such advertisers to ensure that any political advertising placed on newspaper websites contain either a link to a disclosure statement or the candidate/officeholder’s social media profile. Additionally, simply confirming that political ad buyers are aware of the new changes to the Commission’s disclosure requirements could go a long way in heading off problems down the road.

Reporters and editors covering political campaigns and patrolling political advertisements should be alert to the recent changes, as it is quite possible that both political campaigns and the public are unaware of the amendment, which went into effect on Jan. 6. For instance, when the Commission first proposed the amendment back in November, 2018, not a single public comment was filed. In fact, since its adoption, the amendment has not garnered any media attention. Given the lack of fanfare, we are likely to see some missteps in the months ahead and during the next election cycle.

Online political advertising has exploded in recent years, as websites like Twitter and Facebook have become epicenters of political engagement. For example, in the 2018 U.S. Senate race in Texas, Beto O’Rourke spent more than $8 million on Facebook ads and nearly $2 million on Google ads. Many social media users have made it a habit to share or re-post advertising that originated with candidates or campaigns. All signs point similarly to high levels of Internet advertising and social media sharing in the buildup to 2020. With this flood of Internet advertising looming, the Commission’s most recent amendment updates Texas’ disclosure requirements.

Paul C. Watler is a partner in the Dallas office of Jackson Walker LLP. He focuses his legal practice on complex commercial, media and First Amendment litigation.