The Texas Ethics Commission has voted to approve rules that experts warn will chill free speech in Texas.

Shortly after the 2024 primary election, the TEC proposed a rule amending disclosure requirements for grassroots activists posting on social media, including simply reposting content. This activity is, in some cases, rewarded with small payouts. The new rule would remove an existing exception for those activists who spend less than $100 on social media activity during a reporting cycle.

During proceedings proposing and approving the new rules targeting the grassroots, no instances where this activity was used to advocate for or against a candidate’s election or a specific proposition were cited.

Instead, the event that prompted the rogue commission to act was Texans voicing disdain for the Texas House’s failed attempt to impeach Attorney General Ken Paxton. 

The commissioners’ move comes when judicial and administrative bodies are notably weaponized against conservatives. The most high-profile case is against the presumptive Republican nominee for President: Donald Trump.

The TEC’s decision follows a primary election that did not go well for establishment Republicans in Texas, especially in the Texas House. Speaker Dade Phelan lost several allies and lieutenants.

As such, it shouldn’t come as a shock that a bureaucracy with a track record of harassing conservatives at the behest of liberal Republican lawmakers and Democrat lobbyists would be goaded into action.

To circumvent the lawmaking process, the TEC claimed, via its general counsel, that it was not “inventing a substantive requirement to rulemaking.” Instead, it just removed an exception. 

Again, and problematically, for the commission, the apparent driving force behind this maneuver does not include political advertising.

By labeling social media posts as “political advertising” and adding the term “for consideration,” commissioners broadened their ability to launch enforcement measures against grassroots activists speaking out on a wide range of political activity when they fail to add disclaimers to the posts.

David Keating, president of the Institute for Free Speech, warned the commissioners, “something as trivial and common as a candidate offering supporters a free bumper sticker or campaign pin for reposting a message of support would appear to require a disclaimer. This would create a trap for unwary grassroots efforts or candidates.”

“Its terms are vague, leaving citizens to guess whether their conduct is included, which will cause many to choose silence on the most salient political issues of our day,” said Keating.

That most posters will fail to label their speech as political advertising (because it isn’t) appeared to be a foregone conclusion during the hearing, a sentiment shared by both the commissioners and the rule’s lone cheerleader.

Attorney Andrew Cates testified before the Commission. He called for the rule to go further, targeting platforms facilitating grassroots participation in the political process by allowing citizens to leverage their social media accounts for small amounts (often less than $100) to spread the word about issues important to Texans.

While Cates hoped the TEC would target vendors that facilitate the spread of messages among the grassroots, grassroots activists instead appear to be in the crosshairs. Recently, Cates posted to X that lawmakers should “look at grassroots advocacy and lobbying laws/rules to see if anything needs tightening around the use of AI for advocacy purposes.” Cates has also proposed rules making certain political advocacy a felony to have a “very effective chilling effect” on grassroots speech.

Lobbyists and lawmakers do not appreciate citizens engaging in the process and using their primary mechanism of power, their voice, to impact policy in Austin. The TEC, initially intended to police people in power who profit from their positions, has now set its sights on the citizenry.

The TEC is currently under sunset review, where lawmakers reconsider the agency’s purpose and performance.

As an agency that has been identified as weaponized, chiefly against conservatives and the grassroots, lawmakers may be called on to clip the agency’s bureaucratic wings and assign its key functions to other agencies.

The Sunset Advisory Commission has invited public input on the TEC to be submitted before August 15, 2024.

Daniel Greer

Daniel Greer is the Director of Innovation for Texas Scorecard.