Analysis: Texas Might Let Political Radio Ads Run Disclaimer-Free, But Feds Won't

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Political people, tap your brakes.

The state of Texas might not be requiring sponsorship disclosures on political radio ads right now, but the Federal Communications Commission is.

What initially looked like an opportunity to run anonymous political ads after this week’s meeting of the Texas Ethics Commission now looks like a pain in the neck for radio station managers across Texas.

A political radio commercial without “I’m so-and-so and I paid for this message” or “Political ad paid for by so-and-so” is, for now, legal under state law.

So the state won’t be policing this during the current election cycle. But the stations will have to do so, or risk fines from their federal regulators.

FCC regulations say all commercials — whether they are for a furniture store or a burger joint, a mayoral candidate or a local bond issue — have to identify their sponsors.

What’s more, according to the Texas Association of Broadcasters, most of the commercial radio stations in Austin, Dallas-Fort Worth, Houston and San Antonio are now required to post details about political commercials online; smaller stations will have to start doing so in 2018.

The Texas Ethics Commission found a glitch in its rules, which say that political ads must have written disclaimers saying who paid for them. Because you can’t put a written disclaimer on a radio ad, that means — to a lawyer — that the state doesn’t require a disclosure there.

That’s what the rule says. It’s not what the commission intended. It’ll take time — a posting, a public comment period and another meeting of the commission — before it can be changed.

“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,” Chase Untermeyer, the commission’s chairman, said at this week’s TEC meeting.

The commissioners voted to propose a remedy, but it probably won’t take effect, if at all, until after the November general election.

That means the state can’t force a political campaign or committee to put its name on its ads. But because of the FCC regulations, the radio stations can require the candidates to add disclaimers before they air political ads, or they can add the disclaimers themselves.

The difference, at least in Texas, is that the radio stations that play political ads are responsible for disclosure violations instead of the candidates and groups paying for the commercials.

• Read More Unaccountably Free Political Speech, for a Few Weeks in Texas

For now, that puts the onus on the state’s radio stations. After November, the TEC hopes to put it back on the political candidates and committees.

It also means that Texas voters should be able to hear who’s trying to persuade them in spite of the slip-up in the state’s campaign disclosure rules.

All of this puts the people who questioned the state’s disclosure rules right back where they started. Trey Trainor, an attorney, told the commission that groups like Texas Right to Life should be allowed to run educational spots without their name attached.

“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,” he told the commissioners. “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.”

That’s not going to work. Either the advertisers will put their names on it, or the radio stations will — state law or not.