Ask the Attorney -- TPA Legal Q&A
Q: Even in the political off-season, our newspaper will carry paid political advertisements for local elections. Does Texas election law still require that political ads contain a disclaimer and disclose who has paid for the ad?
A: Yes — although the law has changed a bit recently. (See Political Advertising guide from the Texas Ethics Commission.) Texas law has required that any person who publishes, broadcasts, or distributes a political advertisement is responsible for making sure that the ad identifies who paid for it. For print advertisements, the law also required disclosure of the name and address of whoever contracted for the ad’s publication.
In May of this year, the Texas Court of Criminal Appeals decided that these requirements were an unconstitutional infringement of the right to engage in anonymous political speech.
While the Court’s opinion did not suggest that its ruling was limited, the Texas Legislature kept the law in place, while making a slight amendment via HB 1606, effective September 1. After that date, the law will require that an advertisement contain the name (but not address) of the person who paid for the ad or the PAC or candidate who authorized it, but only for political advertisements that contain “express advocacy.” What is “express advocacy”? Welcome to the Buckley v. Valeo legal thicket!
In 1976, the U.S. Supreme Court held in Buckley v. Valeo that political ads that “expressly advocate” the election or defeat of a candidate for public office or other ballot initiatives could be regulated, at least to some degree, as part of a government’s efforts to keep elections clean and open.
The Texas Legislature’s amendment to the election law provides that any political ad, regardless of content, that is authorized by a candidate or a PAC is “express advocacy.” How about other political ads? The U.S. Supreme Court won’t say, but in 2002 the federal appeals court that covers Texas said “express advocacy” is limited to the so-called “magic words” test: “words that explicitly advocate the election or defeat” of a particular candidate or ballot measure, such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” or “reject.”
It’s likely that the Legislature’s “fix” of the election law will be challenged in court, and questionable whether it will survive, at least as to non-candidates. When the Court of Criminal Appeals struck down the election law, it relied on a U.S. Supreme Court case which had struck down a similar law in Ohio – in a case involving a non-candidate’s anonymous handbill that clearly contained “express advocacy.”
In the meantime, what is the best course of conduct? Continue to insist that political ads are clearly identified as such, and insist that they disclose the name of the candidate, group, PAC or other person paying for them.
Nothing requires publications to accept anonymous political advertisements, and unless the current law is struck down, Texas election law still prohibits it.