Analysis: Unaccountably Free Political Speech, for a Few Weeks in Texas

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A regulatory wrinkle could strip an important piece of information from the political radio ads you hear in Texas between now and Election Day: Who’s paying for the commercials?

Those commercials are required to include written disclaimers saying who paid for them. The problem is that written disclaimers don’t work on the radio.

This all began with a question from Texas Right to Life, which asked if it was required to put its name on radio ads urging people to vote for a particular candidate for state office. 

• Update The State Might Allow Those Political Ads, But the Feds Won't

Emily Kebodeaux Cook of Texas Right to Life told the commissioners that the current rules are causing confusion for groups like hers that are trying to figure out what should go into their ads. Trey Trainor, an attorney on the same side, said political advertisers who don’t disclose run the risk of “frivolous challenges from political operatives.”

He said they would suffer if forced to disclose authorship in the body of their commercials.

“At the end of the day, that message is hurt because it must include a tagline, ‘Political ad paid for by Texas Right to Life’,” Trainor told the commissioners. “The real-world implications of this are, the message itself resonates across political lines. When you say who paid for it, it’s automatically tuned out by half the population, because it’s associated with being, oh, well, that’s a Republican message. And their target audience here is to actually move Democrats in a particular direction based upon the radio ad that they’re trying to run. So the government forced speech here is actually hurting the message.”

He said voters could find out who pays for commercials in the campaign finance reports filed periodically with the state. He said people who are interested can go to the Texas Ethics Commission’s website to try to look up those details up after they hear the ads on the radio.

That’s not where the Ethics Commission wants to end up, but that’s how it will work for the next couple of months.

State law says an advertiser must include a disclaimer — “political ad paid for by XYZ” — in commercials that urge a vote for a particular candidate. The current rule says disclaimers have to appear in writing, which works swell on TV, online and in print, but not so well on the radio. The commissioners proposed a rule that the disclaimer has to be “clearly spoken” if the ad doesn’t include written text.

And in what amounted to an official declaration of “Oops!” — because they had been asked officially for their opinion on the current rule — they also issued an advisory opinion letting the world know that current state rules, unlike federal laws, require no such disclosures on radio ads.

“I guess I need to buy all my radio ads between now and 60 days from now, when the commission meets again,” Trainor said, urging the commissioners to leave the issue for the Legislature to settle. But they approved both the advisory opinion saying the current rules don’t require disclaimers on radio ads and the proposed rule that would require disclaimers in the future.

“It is technically true that until such a rule change is formally adopted by this commission ... that such disclaimers are not required under law for radio broadcast,” said Chase Untermeyer, the commission’s chairman.

And when is that? The commission will meet again in October, and a rule approved then could take effect in 20 days — after Texans are voting and, perhaps, after this year’s election is over.

Until a rule is adopted, the official view of the Texas Ethics Commission is that groups like Texas Right to Life — the example here only because they asked the question — do not have to put their name or disclaimer on radio ads aimed at influencing your vote.

Radio listeners will hear some political commercials this year without knowing whether they come from trusted sources, untrusted sources or groups they’ve never even heard of.

And the advertisers are free, for a few weeks, to make their radio pleas and attacks without attaching their names to them. They can disclose — they just don’t have to.