More Problems With SB 219

I wrote Saturday about the new “resign to run” provision contained in SB 219 targeting only the Railroad Commission. Unfortunately, it’s not the only problematic provision in the bill.

Free speech tax

The bill would amend Election Code section 251.003 to require an annual fee payable to the Ethics Commission by almost all filers (this includes candidates and all political committees). The premise behind disclosure requirements is that the public at large benefits by knowing who is spending money. The groups engaging in advocacy are the only ones in a position to file reports of  money coming in and going out, so it’s a necessary evil that they be burdened with filing obligations. But recognize that this takes time and money away from their efforts. They should not be taxed–in addition to the compliance costs already absorbed–for engaging in core political activities. We should be encouraging more folks to engage in the process, not slapping them with a free speech tax.

New disclosure requirements for broadcast ads

SB 219 includes more detailed disclaimer requirements for political ads (see pages 56-57 of the enrolled version). Everyone can agree that as a general matter, disclosure of campaign finances is healthy and necessary in terms of informing the electorate. But disclosure laws impose real burdens on speech, and therefore they must be appropriately tailored so as to do the least damage possible to fundamental rights while achieving their legitimate informational goals.

The new disclosure requirements applicable to television and radio ads will rob candidates and political committees of valuable time and resources, without achieving anything meaningful. Under current law, any “political advertising” in any medium is required to include a statement substantially similar to the following: “Political ad paid for by X.”  A floor amendment added in the House requires that any TV ad containing “express advocacy” and authorized by a candidate carry an image of the candidate, and a “written statement” identifying the candidate and stating that the candidate has approved the ad. The kicker is that the statement and image must appear “at the end of the communication for not less than four seconds.” TV ads done independently (i.e., not authorized by a candidate) are not required to display an image, but must carry the same four-second written statement identifying the individual or group paying for it. So the new bill requires a specific four-second duration and, in the case of ads by candidates, requires an image of the candidate. (These requirements were offered in slightly different form in HB 1398, but didn’t make it out of committee.)

Think about this in terms of the scarce resources of campaigns and political groups. Four seconds is 13% of a 30-second ad (the typical duration of an election ad). This can amount to thousands of dollars for each ad buy. Many campaigns also buy 15-second ads, but the law still requires a full four-second presentation of the candidate’s image and written statement. In that case, the government is taking over 27% of the ad time. These precious seconds cost money and rob time from the communication. I suppose it’s possible to display the image of the candidate and the written statement on only a portion of the screen, such that the other content of the ad can continue to the end, at the same time as the disclosure. But this will depend on the Ethics Commission’s application of the requirement that the image be “clearly identifiable.” How much of the screen must it occupy to meet that standard? Current law already requires a written statement, and this is sufficient to inform viewers. Is anybody really confused by ads that display a written statement but lack an image? Or by a written statement that lasts one or two seconds, rather than four? 

Ironically, this new requirement provides a rare example of incumbents disadvantaging themselves in comparison to “outside groups.” TV ads not authorized by a candidate must only display the written statement, but no image.

Regarding radio ads, the amendment would require that the spoken “paid for by” statement be recorded by the candidate or representative of the group paying for the ad. This may seem minor in most instances, but it also could prevent spontaneous ad buys if a group cannot get the statement recorded in their own voice in time. It is often necessary to respond immediately to a claim made by an opponent, or to some pressing issue, and requirements like this can act as practical obstacles to speech. There is nothing wrong with a statement in the same voice as the rest of the ad.

It seems to me these amendments add nothing to enhance disclosure, but will impose substantial costs on candidates and PACs by conscripting large chunks of every ad buy.

[Update: I just received a copy of a letter by the American Association of Political Consultants opposing HB 1398 earlier this month. (See here: AAPC_Duncan) They write that the new requirement threatens to “overwhelm the campaign message itself.”]

[Update2: coverage by the Dallas Morning News’ Trailblazers blog here]

Social media ad disclosure

The new requirements for social media sites seem reasonable for the most part, and the Lege should get credit for excepting text messages.  However, the bill requires that in the case of social media sites, the disclosure statement appear in a “printed box” on the profile page. This, I think, is impossible on Facebook or Twitter, etc.  There is an exception for social media advertisements that are “too small” to permit compliance with the requirement, in which case you can simply include a link to a separate page containing the appropriate disclaimer in full. I assume the Ethics Commission will have to interpret this provision to apply to a social media profile page that does not permit the user to include a “printed box.”