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Influencer Disclosure Rule Scheduled for Adoption

Proposed Texas Ethics Commission Rule to Be Considered Next Week

UPDATE: The Texas Ethics Commission approved the proposed disclosure rule by a 7-0 vote at its meeting on June 18.

The Texas Ethics Commission will consider adopting a proposed rule at their meeting next week that will require social media influencers to post disclosure statements when they are paid to post political advertising online.

The agenda for the Texas Ethics Commission meeting scheduled for June 18 includes the following item: “Discussion and possible action on the adoption or proposal and publication in the Texas Register of an amendment to section 26.1 of Title 1 of the Texas Administrative Code, regarding political advertising.”

In March, The Texas Voice reported that the Texas Ethics Commission had unanimously voted to publish a proposed rule in the Texas Register that would require political advertising disclosure statements on political advertising that was posted or re-posted on the internet “in exchange for consideration.”

James Tinley, General Counsel for the Texas Ethics Commission, discussed the need for the proposed disclosure rule at the Commission’s meeting on March 20. “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.”

As of last week, the Texas Ethics Commission had received five written public comments regarding the proposed rule. 

Andrew Cates, an attorney who practices campaign finance and political law, submitted a comment expressing his belief that the rule needed to go further to encompass companies that serve as conduits for payments to social media influencers who make paid posts. 

“While the rule as amended would certainly bring the social media influencers into the net of political advertising disclaimer requirements, I think the amendment misses the mark on who exactly is responsible for the content being promoted. The influencer who is being paid should naturally bear some responsibility for taking a payment and posting or reposting content they did not create. Accepting personal responsibility for what you post online is only fair, after all.

But in my view, attributing responsibility only to those uninterested influencers who are very likely only posting or reposting for the money and not because they care or even understand the message they are promoting only gets at half of the problem.

The companies that act as middle men to push political advertising into the public arena should be held accountable as well. In the end, they are responsible for either obtaining or creating political advertising and paying others to post it,” wrote Cates.

The Texas Ethics Commission’s disclosure proposal received criticism from some within the political network of prominent political donors Tim Dunn and Farris Wilks, characterizing the proposed rule as an attempt by the “secret speech police” to curtail First Amendment rights. 

Tony McDonald, an attorney who represents several organizations within Dunn and Wilks’ political network, tweeted, “Are you a conservative activist on X who has been accused of being a “paid shill.” The lunatics in charge of the @TX_Ethics Commission are taking aim at you. They want to open up their endless prosecutorial maze to anyone who wants to drag you through it.” McDonald’s tweet included a link to an article on the website Texas Scorecard with the headline, “Texas’ ‘Secret Speech Police’ to Consider Targeting Citizens’ Social Media Posts.”

Dunn is a member of the board of directors of Texas Scorecard’s parent organization. The Defend Texas Liberty PAC, which was largely funded by Wilks and Dunn, reported making a $18,000 payment to Influenceable—a company that facilitates paid social media posts—on May 19, 2023.

Others, however, expressed support for the Commission’s efforts to bring transparency to paid social media political advertising. Mark Davis, a Dallas radio talk show host, tweeted, “Conversation starter: there’s a difference between a naturally inspired social media post and one that is paid for. As such, I’m prepared to support disclosure when a post is really a paid ad.”

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