AAF-Amarillo Gov Affairs 2023-2024

Kristen Lee, Chair

November 2023

Meta to Require Labeling of Digitally Altered Political Ads (Including Those Generated By AI) – Looking at the Rules that Apply to Various Media Platforms Limiting Such Policies on Broadcast and Cable

By David Oxenford on November 9, 2023

POSTED IN ADVERTISING ISSUES, ON LINE MEDIA, POLITICAL BROADCASTING

Facebook parent Meta announced this week that it will require labeling on ads using artificial intelligence or other digital tools regarding elections and political and social issues. Earlier this week, we wrote about the issues that AI in political ads pose for media companies and about some of the governmental regulations that are being considered (and the limited rules that have thus far been adopted).  These concerns are prompting all media companies to consider how AI will affect them in the coming election, and Meta’s announcement shows how these considerations are being translated into policy.

 

The Meta announcement sets out situations where labeling of digitally altered content will be required.  Such disclosure of the digital alteration will be required when digital tools have been used to:

 

Depict a real person as saying or doing something they did not say or do; or

Depict a realistic-looking person that does not exist or a realistic-looking event that did not happen, or alter footage of a real event that happened; or

Depict a realistic event that allegedly occurred, but that is not a true image, video, or audio recording of the event.

The Meta announcement makes clear that using AI or other digital tools to make inconsequential changes that don’t impact the message of the ad (they give examples of size adjusting, cropping an image, color correction, or image sharpening) will be permitted without disclosure.  But even these changes can trigger disclosure obligations if they are in fact consequential to the message.  In the past, we’ve seen allegations of attack ads using shading or other seemingly minor changes to depict candidates in ways that make them appear more sinister or which otherwise convey some other negative message – presumably the uses that Meta is seeking to prohibit. 

 

This change will be applicable not just to US elections, but worldwide.  Already, I have seen TV pundits, when asked about the effect that the new policy will have, suggesting that what is really important is what other platforms, including television and cable, do to match this commitment.  So we thought that we would look at the regulatory schemes that, in some ways, limit what traditional electronic media providers can do in censoring political ads.  As detailed below, broadcasters, local cable companies, and direct broadcast satellite television providers are subject to statutory limits under Section 315 of the Communications Act that forbid them from “censoring” the content of candidate advertising.  Section 315 essentially requires that candidate ads (whether from a federal, state, or local candidate) be run as they are delivered to the station – they cannot be rejected based on their content.  The only exception thus far recognized by the FCC has been for ads that have content that violates federal criminal law.  There is thus a real question as to whether a broadcaster or cable company could impose a labeling requirement on candidate ads given their inability to reject a candidate ad based on its content.  Note, however, that the no-censorship requirement only applies to candidate ads, not those purchased by PACs, political parties, and other non-candidate individuals or groups.  So, policies like that adopted by Meta could be considered for these non-candidate ads even by these traditional platforms. 

 

It seems like almost every year as elections begin to heat up, the question arises as to whether the tools that some online platform adopts to combat political misinformation can be applied to broadcasters and other media – and each year we write about the differences in the regulatory schemes applicable to online platforms like Facebook and those that apply to traditional electronic media providers.  Facebook has been particularly active and particularly public about trying to curb abuses in political broadcasting, so we’ve written on the differing US regulatory schemes many times.

We wrote about the distinction last year, when Facebook decided to ban political ads in the week before the 2022 elections.  In June 2021, we wrote about Facebook’s plans to end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other platform users.  Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – although it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other potentially offensive content.  Just a year before, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act, which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230).

In past posts, we’ve looked in detail at the different regulations that apply to online platforms versus those that apply to broadcasters, cable companies, and other traditional media platforms.  In a 2020 post, we compared Facebook’s policy with the laws that apply to other communications platforms, including broadcasters and cable companies.  A lightly edited version of what we wrote in the past is below, and makes the regulatory distinctions clear:

In January 2020, the New York Times ran an article seemingly critical of Facebook for not rejecting ads from political candidatesthat contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales and contrast these rules to those that currently apply to online advertising.

 

As stated above, broadcast stations, local cable, and DBS systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations and DBS companies cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels them to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, the platform then known as Twitter, which in the past (but no longer) decided to ban all candidate advertising on its platform (see our article here), and the Facebook ban applied in 2022 which at the time prohibited new political ads the week before the November 2022 election.  Such blanket bans on advertising from federal candidates would be prohibited on a commercial broadcast station.

 

There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to those ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship, or any other Communications Act requirements – although from time to time there have been questions as to whether those rules should apply to cable networks, as the FCC has applied them to broadcast networks. But thus far cable networks have been treated more like online advertising, where the FCC rules generally do not apply.

 

Disclosure is another place where the government-imposed rules are different depending on the platform.  Broadcasters, local cable systems, and DBS operators have extensive disclosure obligations, in online public files, requiring that they detail advertising purchases by candidates and other issue advertisers.  We wrote (here and here) about policies adopted in the last few years about the new enhanced disclosure rules for federal issue advertising (including ads supporting or attacking federal political candidates purchased by groups other than the candidate’s own campaign committee).  Cable networks and online platforms do not have federal disclosure obligations.  Some have voluntarily adopted their own disclosure policies (see for instance Facebook’s qualification policy for political advertisers, here).  In addition, a number of states have imposed obligations on these platforms (see, for instance, our article here).  These rules are not at all uniform, and some are stricter than others.  See, for instance, our article here on the enforcement of Washington State’s very detailed political advertising disclosure rules that have resulted in legal actions seeking significant penalties brought against Facebook.  While a number of states have imposed on digital media companies some form of political disclosure or recordkeeping  rules, as we wrote four years ago, at least one appellate court has determined, in connection with Maryland’s online political advertising disclosure obligations, that such rules are unconstitutional when imposed on online platforms rather than on advertisers.

 

Certainly, it can be argued that there are technical differences in the platforms that justify different regulation and different actions by the platforms themselves.  Online platforms clearly have the potential to target advertising messages to a much more granular audience.  The purpose of this article is not to argue which regulatory scheme is best – just to point out that these differences exist.  While we are already well into the political season with advertising running for the 2024 election, watch as various jurisdictions tackle questions about how to regulate political advertising, both online and on more traditional media platforms. We’ve written about the FEC consideration of rules governing AI-generated content in political ads.  Other rules from other federal and state authorities may follow.   

Obviously, discussions about the proper regulatory standards to apply to online platforms, not just in the area of political advertising, but more broadly, continues today (see, for instance, our articles here and here).  We will be following those developments in future posts, and all media companies should be watching closely as rules are developed.

September 2023

From Griffin Communications 9.28.2023
FOR IMMEDIATE RELEASE
(512) 970-9944
elliott@griffincomms.com
REP. JOHN SMITHEE ANNOUNCES BID FOR RE-ELECTION
“Today I announced that I am seeking re-election to the Texas House. There are significant issues facing House District 86, the Panhandle and the state of Texas that require conservative leadership, thoughtful independence, and experience. For instance, last session I was proud to be a part of a team of area legislators that secured critical funding for a state hospital in Amarillo that will serve the entire Panhandle. As a legislator, I have always been deeply focused on the priorities of my district and our region, ensuring that our values and needs have a strong champion in the state legislature.

The last several months have been an extremely tumultuous time for the Texas House and the legislature as a whole. I look forward to returning to the Texas House to provide a steady hand, assist in unifying our Party, and help set a course for strong Republican victories in Novembers to come and beyond.

I am excited about the opportunities ahead to continue to serve the people of this amazing district and the state of Texas.” – Rep. John Smithee, HD 86

John Smithee was instrumental last session in providing historic funding for state border operations, securing $12 billion in new property tax relief for Texans, banning life-altering gender modification surgeries and procedures on minors, and continuing to foster a culture of life in our state.

Radio Issues Gain Congressional Support
posted on 9.25.2023
– Performance Tax, AM Radio
Local Radio broadcasters have garnered additional support from the Texas Congressional delegation for two of the industry’s key issues, a measure to preserve AM Radio in vehicles and another to prevent the imposition of a new music royalty on stations.

Performance Tax
Rep. Lance Gooden, R-Terrell, is the latest Texan in Congress to sign on as co-sponsor of HConRes 13, The Local Radio Freedom Act, which opposes efforts by the recording industry to force local Radio stations to pay a new royalty to record labels.
The proposed performance royalty – dubbed a Performance Tax – requires congressional approval and would add to the hundreds of millions of dollars in music royalties that stations across the country already collectively pay to songwriters and other artists.
Artist royalties continue to soar with the addition of GMR to the ranks of performance rights organizations like ASCAP, BMI and SESAC, just as a historic increase in streaming royalties collected by SoundExchange has further strained local stations’ operations.
Gooden’s support brings to 24 the number of co-sponsors from Texas – the most of any state. Texas Radio broadcasters are encouraged to thank current supporters and to contact lawmakers who have not yet confirmed their support for the Radio-friendly measure.
Where Texans in the U.S. House Stand on a Performance Tax
Overall, the resolution has bipartisan support from 194 House members, 26 short of the needed majority of 218. Its Senate companion, SConRes 5, has 22 co-sponsors.

Broadcaster’s Legal Considerations for Early Season Political Ads
By David Oxenford on September 22, 2023
POSTED IN ADVERTISING ISSUES, POLITICAL BROADCASTING

With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from PACs and other issue groups, and from both established candidates and newcomers eager to make an early splash to enhance their public standing. Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies. How are broadcasters to deal with these early political ad buyers?
Each broadcaster needs to discuss the issues that arise with these early political ads, both internally with their business teams and with their outside FCC counsel or in-house legal advisor. The first question to ask is whether a station even wants to run these ads. Ads from non-candidate buyers do not need to be run by stations but, if run, will likely impose some political file obligations on stations to the extent that they discuss candidates, potential candidates, or electoral and political issues (for more on political file issues, see our articles here, here, and here, and this video discussion that I did for the Indiana Broadcasters Association).
Ads from purported candidates can also raise other issues. First, are the ads for candidates for federal office, or only for state and local office? Only federal candidates have reasonable access rights – meaning that stations are only mandated to take ads from federal candidates (see our article here on reasonable access considerations). If stations do take ads from state and local candidates, they must treat all legally qualified candidates for the same office in the same way. See our articles here and here on some of the differences between the treatment of state and local candidates under FCC rules.
That raises the question of who are “legally qualified” candidates at this point in the election season? Generally, a legally qualified candidate is one who has qualified for a place on the ballot (which, in most states, likely has not happened as the local filing window for requests for ballot access has not yet opened for the 2024 elections) or one who has made a substantial showing that they are running as a write-in candidate. There are special rules for a Presidential candidate similarly premised on a place on the ballot or a substantial showing of their candidacy. Once a Presidential candidate is qualified in 10 states, they are generally considered, for FCC purposes, to be qualified in all states.
What is a substantial showing to determine that a candidate is qualified? In the jurisdiction in which they are running (or the jurisdictions, in the case of a Presidential candidate), the test is to look at the actions of the candidate to see if they really are conducting a campaign – it is more than simply asking for airtime to run political ads on a broadcast station. The factors to be considered include the following:

· Is the candidate making campaign speeches,
· Have they been distributing campaign literature,
· Have they been issuing press releases,
· Are they maintaining a campaign committee,
· Have they established campaign headquarters in the jurisdiction,
· Did they create a campaign website, and
· Are they using social media for the purpose of promoting or furthering a campaign for public office?

No one factor alone is sufficient – they all must be weighed to determine if the candidate really is conducting substantial campaign activity in the jurisdiction where they are seeking to claim that they are qualified, and the burden is on the purported candidate to show that they are legally qualified. See this article on a recent FCC decision on the weighing of these factors. This is a somewhat subjective determination that a broadcaster should make, based on all the facts, consulting with their attorney. For some candidates who are not running in a primary, or are running in primaries later in 2024, there may not even be a campaign that has truly started – so for FCC purposes, those seeking to buy time now may not be “candidates” yet, and thus stations may have the option as to whether they need to accept their ads. For major party presidential candidates in states with early primaries, many candidates may well be able to demonstrate that they meet the criteria for being legally qualified candidates, at least in some states, so that if they are federal candidates they will be entitled to reasonable access. A detailed analysis of these considerations is required – so contact your counsel for assistance in making this determination.
If the station has determined that a federal candidate is legally qualified so that reasonable access applies, or if the station is willing to sell time to the candidate even if the candidate does not meet the test of being legally qualified, the station should also look at other issues in considering any political advertisements that early buyers may want to start running now. For ads that are not from candidates, or from potential candidates who are not yet legally qualified, there are some business considerations. Does a station want to disrupt regular ad buyers or provoke the negative reactions from audience members who may react to political ads running outside of election season?
Other issues relate to the precedential nature of what you are doing. These are questions to discuss with legal counsel. By accepting ads from potential candidates before they are legally qualified, there may be an argument that you have conceded that there is an election, opening you to more requests for political airtime from other candidates. Other issues may include novel requests for purchase – for instance, proposals that the candidate only pay after the spots have run, or that a candidate pay a station based on a percentage of funds raised in a candidate’s broadcast appeals. On the latter request, check on campaign finance ramifications. The FCC does not require that stations sell to political buyers per inquiry, or other ads where payment is based on the response that the buyer receives. On the issue of not paying in advance, advancing credit to a candidate may set a precedent that could be applied to other political candidates later in election season. The FCC allows stations to apply their normal credit policies to candidates. The FCC has said the following about extending credit to candidates:
If a station’s credit policies would, for example, require advance payment from a commercial entity that has been established only for a temporary time or purpose (e.g., a seasonal fireworks merchant or a concert promoter), has an uncertain credit history with the station (e.g., a company that is new, advertising with the station for the first time, or advertises with the station only occasionally), or has an unstable financial condition, then the station can require advance payment from a political advertiser that falls within one or more of these categories. If, however, a station’s policy is to extend credit to commercial advertisers no matter what their nature, credit history, or financial condition, then the station would be required to extend credit to political candidates.
The FCC recognized that, under this standard, most candidates will not be extended credit and, seemingly most stations do not routinely extend credit to candidates absent a guarantee of payment by an agency with an established credit history. If that policy is not observed in one case, it could set a precedent for the future. Thus, the ramifications of any credit extended to a political advertiser should be discussed with counsel, as extending credit to one candidate may require that it be extended to all candidates.
These are but some of the considerations for early season political ads. We have written about other issues in the past (see for instance, our articles here and here), and likely will be covering other issues in the near future. Start your planning now – set political policies internally and discuss those policies with counsel so that you are familiar with all the ramifications of political sales throughout the coming election season. Review your political disclosure statement and update it as necessary. Educate your staff dealing with political issues, including those who post political information to the online public inspection file. While many stations appreciate the boost that political money provides to ad sales, these sales also impose legal obligations that, if not observed, can result in serious consequences. So be prepared!
Tags: extending credit to political candidates, legally qualified candidate, online polit

August 16, 2023
FEC Asks for Public Comment on Petition for Rulemaking on the Use of Artificial Intelligence in Political Ads
By David Oxenford
POSTED IN ADVERTISING ISSUES, POLITICAL BROADCASTING

The Federal Election Commission last week voted to open for public comment the question of whether to start a rulemaking proceeding to declare that “deepfakes” or other AI technology used to generate false images of a candidate doing or saying something, without a disclosure that the image, audio or video, was generated by artificial intelligence and portrays fictitious statements and actions, violates the FEC’s rules. The FEC rule that is allegedly being violated is one that prohibits a candidate or committee from fraudulently misrepresentating that they are “speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof.” In other words, the FEC rule prohibits one candidate or committee from falsely issuing statements in the name of an opposing candidate or committee. The FEC approved the Draft Notice of Availability to initiate the request for public comment on a second rulemaking petition filed by the group Public Citizen, asking for this policy to be adopted. This Notice of Availability was published in the Federal Register today, initiating the comment period. The deadline for comments is October 16, 2023. This is just a preliminary request for comments as to the merits of the Public Citizen petition, and whether the FEC should move forward with a more formal proceeding.
As we wrote in an article a few weeks ago, the FEC had a very similar Notice of Availability before it last month and took no action, after apparently expressing concerns that the FEC does not have statutory authority to regulate deliberately deceptive AI-produced content in campaign ads. Apparently Public Citizen’s second petition adequately addressed that concern. The Notice published in the Federal Register today at least starts the process, although it may be some time before any formal rules are adopted. As we noted in our article, a few states have already taken action to require disclosures about AI content used in political ads, particularly those in state and local elections. Thus far, there is no similar federal requirement.
Stations still need to be careful accepting any attack ad from a non-candidate organization that puts words into the mouths of a candidate – using AI or just through selective editing of the words of the candidate being attacked. As our last article on this topic warned, once a station is on notice that claims made in an ad are false, the station has an obligation to review those claims and determine if the continued airing of the ad could be defamatory or otherwise impose some liability on the station. The last two publicized cases where broadcasters were sued by candidates for the content of third-party ads both arose from apparent selective editing of a candidate’s words by non-candidate organizations. In both cases, the candidates alleged that the editing conveyed false information. Whether or not these cases ended up resulting in liability, they certainly cost the named stations time and money. So be prepared. Follow developments in government regulation of the use of AI in political ads carefully to see what obligations are imposed on candidates and other political organizations, and the media outlets that run the ads that they produce.

August 14, 2023
FCC Adopts New, Reduced Fee Schedule for Broadcasters

– Big Win After Years-Long Effort by TAB, NAB, Others

A years-long push by TAB, its state counterparts and the NAB to compel the FCC to modernize its regulatory fee structure yielded the biggest achievement yet with the adoption last week of a new fee schedule that delivers a five to six percent reduction in fees levied on local broadcasters, creates a lower fee tier for smaller market Radio stations, and adoption of additional relief measures for fee payors.
This was largely the result of a high-level reclassification of FCC employees undertaken at broadcast advocates’ urging to correctly reflect the industries those employees were serving which appropriately shifted more of the agency’s fee burden to those other industries.
Because it is unlikely that FCC employees’ work will change dramatically from year to year, most reclassifications will carry forward from year to year, resulting in more right-sized fees for broadcasters going forward, according to TAB’s FCC legal counsel, Scott Flick and Lauren Lynch Flick with Pillsbury Winthrop Shaw Pittman.
The attorneys have been working with TAB and the other industry advocacy groups to reform the FCC’s regulatory fee-setting process since 2020 during the height of the first COVID wave when the FCC had proposed a substantial increase.
The new fee schedule for Radio stations is shown on this chart. TV regulatory fees are done by precise population served, so they are different for every station, which is why they don’t summarize easily in chart form.
The impact on broadcasters is even more significant when considering the fact that the FCC’s new budget grew by $8 million.
Key Insights from the Flicks
“As a result of broadcasters repeatedly raising these issues in Comments, Reply Comments and ex parte meetings, this year, the FCC undertook a high level review of the work of many of its employees,” they said in a statement.
“This resulted in the FCC proposing to classify an additional 19% of its staff as direct employees of one of the four core bureaus, rather than simply assigning them as overhead for which all regulatees are responsible.
“By reclassifying these employees, the FCC acknowledged that their work benefits a particular industry that should pay for that work, and for the most part, that industry is not broadcasting.
“It is a circuitous way to reach the result (which is why broadcasters have criticized the methodology), but these reclassifications validate broadcasters’ complaints that they are paying for work that should be charged to payors in other industries.
“While the State Associations and NAB also urged the FCC to look at additional employees who should be reclassified, and the industries whose fees would rise not surprisingly opposed those reclassifications, in the Report and Order that came out today, the FCC punted on making further changes this year.”
Fee Payment Due Date Unknown
The FCC’s approval of the new fee structure does not set the dates for the submission of the fees, nor does it provide all of the detailed procedures for paying the fees.
A Public Notice is anticipated in the next few days establishing the payment window. In the past, each Bureau has also released a filing guide for the services which they regulate.

August 11, 2023
Political Spending Begins in House Races Where Both Sides Think They Could Win

There is still no sign of the political ad market slowing down as spending continues to pace well ahead of what was allocated to ad buys at this point during the prior presidential election cycle. AdImpact says $564 million was spent through Aug. 4.
More from CNBC: McCarthy-Aligned Super Pac Could Spend $100 Million to Target Blue States in 2024

JULY 2023

Senators Turn Attention to Privacy
July 27, the Senate Commerce, Science and Transportation Committee passed two privacy bills aimed at teens and youth. The Children and Teens’ Online Privacy Protection Act (COPPA 2.0), sponsored by Senators Ed Markey (D-MA) and Bill Cassidy (R-LA), and the Kids Online Safety Act (KOSA) sponsored by Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN). Both passed with broad bipartisan support.

COPPA 2.0, would block social media platforms from collecting information from teenagers without their consent, revamping a decades-old law that only applied to children younger than 13. It would also bar websites from targeting children and teens with advertisements.

KOSA would establish a duty of care for social media websites to protect children from online harassment and content that promotes suicide, substance abuse, eating disorders and sexual exploitation. It would also require platforms to provide safeguards to children and controls to parents to manage their kids’ time spent online.

In comments reported by the Washington Post, Senator Maria Cantwell (D-WA), Chair of the Commerce, Science and Transportation Committee, indicated hope the Committee will consider other “big tech” issues in the Fall, including comprehensive data privacy legislation, a proposal to ban children under the age of 13 from accessing social media and addressing concerns about foreign-linked apps, such as TikTok.

In another example of the bipartisan nature of these issues, Senators Elizabeth Warren (D-MA) and Lindsey Graham (R-SC) introduced legislation to create a new Digital Consumer Protection agency to police “the nation’s biggest tech companies—like Meta, Google and Amazon—to prevent online harm, promote free speech and competition, guard Americans’ privacy and protect national security.” The two argued for their bill in a joint op-ed in The New York Times.

AAF supports the enactment of a comprehensive data privacy and security law and will continue to work with our partners in Privacy for America to urge Congress to pass such a law.

July 20, 2023

TV Stations Launch ‘The Coalition For Local News’

Station groups form a new advocacy organization dedicated to protecting America’s most trusted source of news in the streaming era. It is urges lawmakers and regulators to modernize existing regulations and protect the economic viability of local TV news.
Local broadcast station groups, with the support of the ABC, NBC, Fox and CBS television affiliate associations representing more than 600 stations across the country, today introduced the Coalition for Local News, a new advocacy group urging lawmakers and regulators to act now to protect the future of local news in America.
The Coalition for Local News says it is “dedicated to the belief that local news is essential to the well-being of local communities across the nation and is a vital pillar of American democracy. As the most trusted source of news for Americans, local news broadcasts provide timely coverage of important issues and events, emergency weather service, and access to lifesaving information.
“The future of local broadcast news is threatened by regulations that need to be modernized and government inaction in exercising existing authority to protect the ability of local news outlets to compete.
“One glaring example,” it cites, “is the ‘streaming loophole” in the current FCC rule requiring cable and satellite providers, but not online streaming services, to negotiate directly with local broadcasters for carriage of their stations. Today, streaming services represent about one-third of the pay TV market and are growing quickly.”
Local television stations, the group says, “have lost control of their retransmission consent rights under current rules that cut them out of the negotiating process with streaming services. Without the ability to negotiate directly with streaming services, local broadcasters cannot obtain the compensation necessary for them to sustain their substantial investments in local news.”
Mike Meara, former chair of the ABC television Affiliates Association and member of the Coalition, said: “Local broadcast stations can thrive in a fair marketplace. We have demonstrated as much over the past 30 years of successful competition in the cable and satellite era. But no business can succeed when the rules don’t apply fairly and reflect today’s reality. The market has evolved dramatically and it’s time for lawmakers and regulators to act to protect local broadcast news.”

BRAND CONNECTIONS
The FCC began a process to consider the issue of the “streaming loophole” back in 2014 when it solicited public comment, but it has not addressed the issue since.
Last month, Sen. Maria Cantwell sent a letter to the FCC requesting that it refresh the record to address the current media environment and protect local news in the streaming era. Among the coalition’s chief priorities is urging the FCC to do just that — refresh the record now with comments that reflect the vastly changed market realities of 2023. Last week, the FCC announced its intent to consider updating a separate set of longstanding program carriage rules, an acknowledgment of the need to modernize video regulations in light of a changing marketplace.
Michael O’Brien, SVP at the E.W. Scripps Co., and a member of the coalition, said: “Congress and the FCC have always modernized federal rules in other contexts to keep them in line with advancements in communications technologies and changes in the marketplace. All we ask is that we modernize these regulations to reflect the current marketplace so local broadcasters are able to compete and thrive on a level playing field. “This ‘streaming loophole’ takes direct investments away from local broadcasters and allows national media conglomerates to control the right to local broadcasters’ signals, ultimately deciding the fate of local news.”
The coalition will be engaged in an array of advocacy efforts, including working with groups that recognize the vital importance of local news and urging them to get involved in this debate.

July 19. 2023

Eyes Off Texas: NIL Law Latest to Restrict Public Access to Records
Daniel Libit

It’s not just the peepers of NCAA investigators that the Lone Star State wants to keep away from its college athlete’s endorsement agreements. It’s the public’s, as well.
On Saturday, Texas Gov. Greg Abbott signed into law a sweeping name, image and likeness bill that effectively handcuffs the NCAA and college athletic conferences from taking any action against universities in his state that are alleged to have committed NIL-related violations.
The new measure, set to take effect July 1, is the latest and arguably most significant of the recent batch of state-based NIL provisions designed to constrain the NCAA’s enforcement arm.
Buried in the text of House Bill 2804, however, is an equally sweeping public records exemption for any athlete NIL “information written, produced, collected, assembled or maintained by an institution.” With this broad non-disclosure language, Texas becomes the sixth—and, arguably, most significant—state to explicitly forbid universities from releasing NIL documents in response to public records requests. It follows on the heels of Connecticut, Kentucky, Nebraska, Louisiana and Missouri taking similar actions with their NIL bills.
“This is just one more broad exception to the Texas Public Information Act that makes the Act anti-transparency,” said Tom Leatherbury, the director of the First Amendment Clinic at SMU Law School. “It was passed to cater to special interests that seek to shield the big business of college sports from public scrutiny. It runs counter to the 2019 laws that made government contracting information more accessible. It remains to be seen whether this law will also be used to hide arrangements that athletic departments have with sports management companies.”
Texas’ new law was originally drafted by state Rep. John Kuempel, the chair of the legislature’s higher education committee. In a phone interview, Kuempel’s chief of staff, Brittney Madden, suggested that the legislator had not critically engaged about the specific issue of disclosure in his bill, but instead relied on the language in other states’ bills and the advice of university stakeholders. Madden cited Texas A&M deputy general counsel Brooks Moore as a key contributor to the process. Moore did not respond to a request for comment.
Reporters attempting in recent years to obtain NIL-related information from public schools have typically been denied on account of federal and state student privacy exemptions.
Last fall, for example, ESPN reported on its generally unsuccessful efforts to view athlete NIL info from Texas A&M, Texas and 21 other Division I universities, by way of freedom of information requests. According to the article, Texas A&M initially responded to ESPN with an offer to provide 490 NIL contracts in exchange for production fees of $1,470. Though ESPN paid the money, it reported having only received a few dozen of those contracts four months later. Texas A&M’s office of general counsel did not respond to requests for comment about the status of this request or its position on the new state law.
Texas, meanwhile, provided ESPN a document listing dollar amounts or types of NIL deals between August 2021 and May 2022, which showed that Longhorns football players had netted almost $880,000 during that time period.
Prior to NIL’s arrival, the Uniform Law Commission, an organization that crafts nonpartisan model legislation for states, had debated whether or not its template bill should include specific language prohibiting the public release of NIL information. As Sportico previously documented, the commission ultimately decided not to explicitly address the issue.
Some leading athlete advocates have argued that there is a material difference in the public’s right to know the financial involvements of college coaches and administrators, who are employees of public universities, and college athletes, who receive no such benefits of employee status.
Earlier this year, an article in the Temple Law Review made the case that there is both a legal presumption and “compelling public policy arguments” favoring disclosure of college athlete NIL contracts—benefits that would ultimately redound to the athletes themselves.
“Transparency does not merely scratch the itch of curiosity; it helps reassure a skeptical public that competitions are fair and honest and that wrongdoers will be detected and punished,” wrote Frank LoMonte and Rachel Jones. LoMonte, now a lawyer for CNN, was previously the director of the Brechner Center for Freedom of Information at the University of Florida, and has separately advocated for the First Amendment rights of college athletes.
Aside from the military academies, all other NCAA public institutions are governed by the public records states and prevailing case law in their states. Since NIL went into effect, there have been two open records lawsuits, filed in two different states, dealing with the disclosability of athlete endorsement deals.
Gray Media Group, the owner of six local TV stations in Louisiana, filed suit against LSU in October 2021 for the NIL records it maintains, stipulating that the state’s NIL law at the time did not specifically exempt such records from disclosure. A state district court judge ruled against Gray Media, which declined to appeal the case. Louisiana’s legislature subsequently nailed the issue shut with its revised law enacted last summer, which now states that “any document disclosed by the intercollegiate athlete to the postsecondary education institution that references the terms and conditions of the athlete’s contract for compensation shall be confidential.”
State Sen. Patrick Connick, who sponsored the legislation, said he was not directly aware of Gray Media’s lawsuit.
“I am an attorney and do contract work and confidentiality clauses are standard,” he said in an interview.
In November 2021, the Athens Banner-Herald newspaper sued Georgia, claiming its denial of requests for Bulldogs athletes’ NIL contracts violated that state’s open records law. The parties settled this past fall after the presiding judge determined that un-redacted records revealing names of athletes would violate FERPA, but declined to dismiss the suit.
As part of its settlement, the newspaper withdrew its original public records request, which asked for individual copies of athlete NIL disclosure forms stipulating the financial terms of their publicity deals, and instead accepted aggregated numbers of Georgia athlete NIL deals and the total face value of those deals.
Despite the litigation, the Georgia general assembly did not seek to clarify this aspect of its prevailing NIL law when it was in session this year. The author of that legislation, state Rep. Chuck Martin, told Sportico that he doesn’t see an overall need to amend Georgia’s statute in the face of other states amending theirs, but that he is in favor of keeping NIL records confidential.
“I do think there should be some consideration to [clarify] those aren’t public documents,” Martin said.

July 11, 2023
Supreme Court makes it harder to deny religious accommodation requests

In a unanimous opinion, the Supreme Court has decided that the appropriate standard for rejecting or making a reasonable accommodation for employees’ religious needs is whether granting an accommodation would substantially increase costs in relation to the conduct of the organization’s particular business.
The case: Gerald celebrates the Sabbath on Sundays. He worked as a part-time U.S. Postal Service driver, but never on Sundays. Then Amazon contracted with the post office to deliver Amazon Prime purchases on Sundays. Gerald requested a reasonable accommodation of taking every Sunday off. His supervisor agreed and Gerald swapped shifts with other drivers willing to work on Sundays.
Later, the supervisor transferred Gerald to a delivery location that did not deliver packages on Sundays. But the Amazon business quickly grew, and soon Gerald’s location began delivering on Sundays. At first, Gerald was able to swap shifts with his supervisor’s help.
But then Gerald’s co-workers began expressing resentment that they had to work every Sunday, and they refused to swap shifts. After 20 Sunday shifts went unfilled, the post office told Gerald it could not reasonably accommodate his continued Sunday absences.
Gerald quit and filed a Title VII religious discrimination lawsuit. A federal district court initially ruled in Gerald’s favor, but the post office appealed. It argued it had already done enough to accommodate Gerald’s religious needs. The 3rd Circuit agreed, and Gerald appealed that decision to the Supreme Court.
Since TWA v. Hardison was decided in 1977, the standard for denying a religious reasonable accommodation had been whether the accommodation would create an “undue hardship” for the employer. It was a de minimis test that required the employer to show the accommodation would involve more than a trivial or minimal cost before turning the request down.
Gerald asked the court to raise the standard to approve the accommodation unless it imposed significant difficulty or cost—a far higher burden.
The unanimous Supreme Court decision says courts—and by extension employers—must take into account all relevant factors, including the particular accommodations at issue and their practical impact in light of the nature of the employer’s business, its size and its operating costs.
Takeaways: Review your process for making decisions about religious reasonable accommodations to conform to the Supreme Court’s new undue-hardship standard.

You should expect more religious accommodation requests as a result of this decision. Don’t be surprised if you receive new requests from employees whose previous requests for religious accommodations you denied.

When reviewing requests, don’t focus solely on co-worker objections and the inconvenience accommodations may cause for them. Focus instead on the negative effect accommodations might have on your operations and costs. However, understand there is now a new expectation: that religious accommodation requests must be granted unless there is a substantial negative impact on your operations and costs.

July 4, 2023
New FTC Guidelines Could Prompt Marketers, Influencers to Revisit Endorsement Practices

The Federal Trade Commission has issued a long-anticipated update to its guidelines for endorsements, which advise businesses about how to make sure consumers understand when celebrities, influencers or even regular consumers are compensated to promote or review their products.
Some marketers and influencers will now need to go beyond using hashtags such as “#ad” in social media, for example, to ensure that all users will see that a post is sponsored without having to click “more” or read the full text of the post, the FTC said last week as it released the update.
The FTC has long accepted many of marketers’ standard disclosure methods as sufficient, but the new guidelines make clear that this is no longer the case by going into greater detail about what they must do to avoid potential penalties, said Jeffrey Greenbaum, a partner in the advertising, marketing and public relations practice of law firm Frankfurt Kurnit Klein & Selz.
Allison Fitzpatrick, a partner at law firm Davis+Gilbert who specializes in social media and influencer marketing, said, “I think the whole influencer endorser landscape or environment [and] every party involved in it is on notice now.”
The guidelines also address several issues that have arisen since the last update in 2009, such as the introduction of artificial-intelligence-powered virtual personalities.
The FTC has been relatively quiet on influencer marketing in recent years, but the new guidelines likely foreshadow more high-profile cases like those filed against retailer Lord & Taylor and tea brand Teami, experts said.
Lord & Taylor settled with the FTC in 2016 after allegedly failing to disclose that it had paid for a magazine article and a series of posts by fashion influencers that were designed to promote its new clothing line.
The FTC sued Teami in 2020 over allegations that it made false claims regarding its products’ health benefits and failed to prominently disclose its relationships with influencers and celebrities such as rapper Cardi B. The company later agreed to settle, and the FTC awarded $930,000 to Teami customers.
In January, the FTC raised the maximum civil penalty for each violation of the provisions it enforces to $50,120 from $46,517; related judgments would apply to every offending post. But reputational risk is likely higher for brands, since penalties imposed on well-known companies will attract media coverage and increased scrutiny of future campaigns, Fitzpatrick said.
Influencers have long had a responsibility in the FTC’s eyes to disclose any relationships with the brands they mention, but the updated guidelines offer additional detail on a number of specific points.
For example, the agency stated that tagging a brand in a post or using hashtags like #sponsored or #ad doesn’t qualify as a proper disclosure if it isn’t clearly visible to all users. That means creators on TikTok can’t include such disclosures only in the text of a post, but must feature them within the video itself—a demand unlikely to appeal to influencers who value creative control.
“For an online disclosure to be effective, it needs to be unavoidable [under the new guidelines]. This is a big change in terms of what advertisers are required to do,” Greenbaum said.
The FTC also clarified that virtual influencers, such as those powered by generative AI programs, will be held to the same standards as their real-world counterparts, with responsibility for proper disclosures ultimately falling upon the brands that sponsor their posts.
Marketers’ top question when reviewing their influencer practices concerns their old assumption that they don’t have to include ad disclosures on posts featuring traditional celebrity endorsers, said Ryan Stern, chief executive of influencer marketing firm Collectively.
The idea was that consumers are more likely to assume that a celebrity who mentions a product has a commercial incentive to do it, but the FTC’s update says clear disclosures are required whenever even a small percentage of the audience is unlikely to fully understand the nature of an endorser arrangement.
Another key area of interest concerns marketing to children. The FTC’s update stated that standard disclosures won’t work for children, who are unlikely to understand them, but hasn’t yet released any further guidelines.
The FTC is determining how to move forward after hosting an October 2022 workshop regarding digital marketing to children, according to a spokeswoman.
The updated guidelines also focus heavily on product reviews, now requiring companies to either clearly disclose when they provide some sort of incentive for users to write positive reviews on platforms such as Amazon or to stop including those reviews in their total ratings altogether.
The FTC has separately proposed a new rule that would ban practices such as suppressing negative reviews or posting reviews attributed to people who don’t exist or have no experience with the products in question. Some experts suggested that the murky world of review sites could be a bigger priority for the FTC than influencer marketing.
“I think these ratings and review sites have an even bigger target on their back,” Fitzpatrick said.

June 20, 2023
Pieces of TAB Open Government Agenda Enacted, Franchise Tax Fix Vetoed

Gov. Greg Abbott’s constitutionally mandated deadline to act on legislation passed in the regular session of the 88th Texas legislature came and went at midnight this past Sunday.
June 18 was the last day for Abbott to sign, veto or let bills become law without his signature.
Two TAB-advocated Open Government measures, HB 3033 by Rep. Brooks Landgraf, R-Odessa, and HB 30 by Rep. Joe Moody, D-El Paso, became law.
A third TAB-championed bill, a measure on tax policy, fell victim to a gubernatorial veto as did dozens of other Texas Senate bills in a power play by Abbott over how to reduce property taxes.
“Business Days” Defined in the Texas Public Information Act
Rep. Landgraf’s measure includes language from a TAB newsroom legislative priority bill, HB 2135 by Rep. Terry Canales, D-Edinburg, which clearly defines “business days” under the Texas Public Information Act.
This long-sought TAB reform means local governments across Texas are not left to decide on their own which days they are open and closed for TPIA requests.
Lack of a clear definition in the TPIA has led to governmental abuse that has thwarted requestors of public records.
Abbott signed the bill on June 13; it takes effect Sept. 1.
“Dead Suspects Loophole” Closed
It has taken four legislative sessions, but Moody was able to pass a law that meaningfully addresses the so-called “dead suspects loophole” in the Texas Public Information Act that has stymied Texas families and newsrooms for years.
Currently, law enforcement can shield a wide variety of information in pending investigations and in closed cases that do not result in a conviction.
For example, because the Uvalde school shooting suspect was killed by authorities, the case will not result in a conviction, and the loophole is still being used to prevent release of information related to this criminal case.
The final version of HB 30 was heavily edited by the Texas House and Senate as it moved through the legislature, but the “as passed” version of HB 30 will allow Texas citizens to access more information that will help hold accountable the law enforcement that taxpayers fund.
Gov. Abbott let the bill become law without his signature, a clear nod to the Texas law enforcement community, but in stark contrast to the near unanimous support the measure saw in House and Senate votes.
The law takes effect Sept. 1.
Death of TAB’s Tax Policy Bill
TAB’s franchise tax clarification was among dozens of Senate bills Abbott vetoed in an effort to strongarm the Texas Senate into backing his preferred property tax reform measure, a House bill that Senate lawmakers have thus far eschewed.
As with the other Senate-sponsored tax bills that fell victim to Abbott’s veto pen, the Governor didn’t oppose the measure on its merits, but delayed its further consideration until the Senate has done what he wants on property taxes.
SB 1614 by Sen. Charles Perry, R-Lubbock, clarified, consistent with the tax code’s applicable provisions for broadcasting and “live and prerecorded television and radio programs,” that Radio broadcasters may take the cost of goods sold into consideration when calculating their franchise tax liability, just as Television broadcasters are permitted to do.
TAB proactively sought a legislative solution on this issue after recent discussions by state tax officials suggested that further clarification would be helpful to forestall potential misinterpretations of the law.
“While Senate Bill No. 1614 is important, it is simply not as important as cutting property taxes,” Abbott wrote in his veto message.
“At this time, the legislature must concentrate on delivering property tax cuts to Texans. This bill can be reconsidered at a future special session only after property tax relief is passed.”
TAB will resume efforts to pass the legislation at the earliest opportunity which could come in any one of a series of special sessions Abbott has threatened to call after failing to reach consensus on property tax reform or education funding.

June 12,2023

The Association of National Advertisers released an updated version of its media agency contract agreement – created in 2016 and last updated in 2018 – to address “key developments in the media-buying industry over the past five years.” Changes include a clause requiring an agency to obtain an advertiser’s consent before utilizing any artificial intelligence applications in the delivery of its services, and clarifications on compliance audits and performance audit, non-transparent services, and ESG and DEI. “For most companies, advertising spending is their second or third largest expense after employees and real estate costs,” said ANA CEO Bob Liodice. “An advertiser’s contract with its media agency must be detailed and precise given the amount of media flowing through the agency and the complexity of the media ecosystem. This revised and updated template will help advertisers achieve that goal.”

June 1, 2023

TAB Preserves Anti-SLAPP Litigation Law, Notches Wins in Tax Policy and Open Government

The regular session of the tumultuous 88th Texas Legislature ended Monday evening, capped by several TAB policy wins awaiting Gov. Greg Abbott’s signature. That evening Abbott announced the first of what he said would be several sessions.
“Many critical items remain that must be passed. Several special sessions will be required,” said Abbott. “To ensure that each priority receives the time and attention it deserves to pass into law, only a few will be added each session.”
Both chambers gaveled into extra innings on Tuesday. This time the focus will only be “on cutting property taxes and cracking down on illegal human smuggling.” TAB expects one of the other special sessions to focus on school choice/vouchers, one of Gov. Greg Abbott’s other priorities.
The weekend leading up to sine die of the regular session brought a flurry of activity on several remaining legislative priorities advocated by statewide leaders such as shoring up the Texas electric grid and outlining a new economic incentive framework to replace the flawed Chapter 313 program in the tax code.
It also saw the impeachment of a statewide officeholder, Attorney General Ken Paxton, R-McKinney, on a 121-23 vote. The proceedings now move to the Texas Senate where lawmakers have set June 20 as the day to review and approve rules for conducting a trial on the 20 articles of impeachment. The trial will take place before Aug. 28 on a date to be announced.
It was the second extraordinary action taken by House lawmakers in May. Early in the month the lower chamber expulsed now former Rep. Bryan Slayton, R-Royce City, a married lawmaker who engaged in an inappropriate relationship with a 19-year-old legislative intern.
Texas Citizen Participation Act Preserved
In its biggest policy win, TAB successfully fended off multiple efforts to weaken the Citizen Participation Act, the anti-SLAPP litigation law which TAB championed in 2011.
This session TAB and other groups that were members of the Protect Free Speech Coalition were able to stop SB 896 by Sen. Bryan Hughes, R-Mineola, which sought to cripple the law that helps end frivolous lawsuits meant to silence critical free speech. Broadcasters are often drawn into such suits by their reporting on local disputes.
While TAB fought SB 896 every step of the legislative process, we consistently offered language which would have addressed issues with the law’s implementation that have been raised by critics of the statute. The bill passed the Senate but died in the Texas House when it was not reached for a floor vote.
Many Texas broadcasters responded to TAB’s repeated requests to contact lawmakers on the bill. Others provided key committee testimony on TAB’s behalf such as general managers Bobby Springer of KHOU-TV Houston and Eric Lassberg of KXAN-TV Austin. Alternative bill language and testimony were provided by Laura Prather and Reid Pillifant of TAB Associate member law firm Haynes Boone, as well as Stacy Allen of TAB’s state legal counsel Jackson Walker. All three served on TAB’s Newsroom Legislative Committee for the session.
A last-ditch effort to attach SB 896 as an amendment to an interlocutory appeal housekeeping bill was stopped in its tracks with the threat of a TAB-researched parliamentary point of order on HB 3129. It was an outstanding effort as broadcasters and TAB never gave up defending this hard-earned free speech protection that most Texans do not realize they have.
Other TAB Policy Wins
Legislation clarifying that Radio stations are permitted to take costs of goods sold into consideration when calculating their state franchise tax liability passed the Legislature May 23 and is awaiting Gov. Abbott’s signature. SB 1614 by Sen. Charles Perry, R-Lubbock, clarifies, consistent with the tax code’s applicable provisions for broadcasting and “live and prerecorded television and radio programs,” that Radio broadcasters may take the cost of goods sold into consideration when calculating their franchise tax liability, just as Television broadcasters are permitted to do. TAB proactively sought a legislative solution on this issue after recent discussions by state tax officials suggested that further clarification would be helpful to forestall potential misinterpretations of the law.
In the Open Government realm, two TAB-advocated measures, one of which was a TAB newsroom legislative priority, are also awaiting Gov. Abbott’s action. June 18 is the last day for the governor to sign or veto bills.
HB 3033 by Rep. Brooks Landgraf, R-Odessa, includes language from HB 2135 by Rep. Terry Canales, D-Edinburg, which was one of five TAB newsroom legislative priorities. The added language clearly defines “business days” under the Texas Public Information Act so local governments across Texas are not left to decide on their own which days they are open and closed for TPIA requests. HB 3033 also includes language from three other Open Government-related bills, two of which featured TAB drafted language to minimize any potential harm to TPIA requestors.
The other measure that passed, HB 30 by Rep. Joe Moody, D-El Paso, addresses the so-called “dead suspects loophole” in the Texas Public Information Act that has stymied Texas families and newsrooms for years.
Currently, law enforcement can shield a wide variety of information in pending investigations and in closed cases that do not result in a conviction. For example, because the Uvalde school shooting suspect was killed by authorities, the case will not result in a conviction, and the loophole is still being used to prevent release of information related to this criminal case. The final version of HB 30 was heavily edited by the Texas House and Senate as it moved through the legislature. A conference committee was needed to resolve the differences between the two versions. The “as passed” version of HB 30 will allow Texas citizens to access more information that will help hold accountable the law enforcement that taxpayers fund.
Unresolved Open Government Issues
Unfortunately, TAB was unable to garner wins on four other Open Government issues. Bills addressing two of the issues passed the Texas House, only to die in the Senate’s Business and Commerce Committee for lack of a hearing, just like their Senate companion measures.
HB 2309 by Rep. Todd Hunter, R-Corpus Christi, ensured public access to dates of birth in criminal justice and electoral candidate records and documents. A newsroom’s inability to verify the right individual when reporting on a crime could easily lead to legal action against a station if the wrong individual were reported. SB 46 by Sen. Judith Zaffirini, D-Laredo, also addressed the issue and died a similar death in the same committee. Measures addressed the DOB issue passed the Senate in 2017, and the House in 2019 and 2021, but have not passed both houses in the same session.
HB 2493 by Rep. Giovanni Capriglione, R-Southlake, would have codified guidance from the Attorney General’s office directing government officials to release public information stored in spreadsheets in their original format, rather than converting them to PDF images that cannot be easily searched, sorted, nor analyzed. Governmental entities often store public information in spreadsheets. Analyzing data in a spreadsheet can help a requestor evaluate broad trends and better hold governments accountable. Two Senate bills also addressed the issue, SB 45 by Sen. Zaffirini and SB 965 by. Sen. Nathan Johnson, D-Dallas. All three bills failed to get a Senate committee hearing.
In two other Open Records problem areas, House and Senate companion bills endured a similar fate by never receiving a hearing.
HB 2492 by Rep. Capriglione and its companion SB 680 by Sen. Nathan Johnson, D-Dallas, clarified state law to ensure that local and state officials expedite the release of statutorily designated “super public” information such as the dollar value and descriptions of goods and services.
HB 2874 by Rep. John Smithee, R-Amarillo and SB 2286 by Rep. Mayes Middleton, R-Galveston, required governmental agencies pay requestor’s attorney fees when these entities voluntarily release records after a suit has been filed. Smithee passed a similar bill in the 2017 session, only to see it vetoed by the governor.

 

May 22, 2023

Note: The following is a guest submission from A.J. Rodriguez with Texas 2036. Their mission is to enable Texans to make policy decisions through accessible data, long-term planning, and statewide engagement in an effort to ensure Texas is the best place to live and work. Please visit texas2036.org to learn more.
The Lead: Taking Care of the Basics to Assure Texas’ Future
By A.J. Rodriguez
We began this legislative session in January with the welcome news that Texas had a historic $32.7 billion revenue surplus that could serve as a springboard for generational investments into vital infrastructure.
We know one thing for sure — Texas must prepare now for 2036 when the State celebrates its bicentennial. Those future Texans will bring their skills, education, and their can do spirit. What they can’t bring with them are the infrastructure basics — water, roads, or broadband cables, to name just a few.
It’s absolutely necessary for lawmakers to seize the opportunity now to take care of the basics so that Texas doesn’t miss a beat in preparing for the future.
Ready access to clean drinking water is one of those linchpins to the State’s continued economic expansion. Lawmakers are hard at work this session on legislation that would help create the water resources to support a growing Texas over the coming decades.
Signature pieces of water legislation under consideration now would establish constitutionally dedicated funds to support improvements to aging, leaky water systems and to expand water supplies through technologies like water desalination or importing water from sources outside Texas.
They are also considering directing through a Constitutional amendment a portion of the State sales and use tax as a funding source for these new water funds. We estimate Texas will need to spend more than $150 billion during the next 50 years on water.
A recent Texas 2036 voter poll found that 89 percent of voters support directing some of this year’s revenue surplus to fix aging, deteriorating water systems across the State. And 82 percent of voters support using surplus funds to develop new water supplies.
Broadband internet service is another key to open up Texas’ economy of the future. Much like the creation of the farm to market road of the last century, broadband holds the promise to more closely knit, rural Texas and historically underserved pockets of urban centers into the fabric of the State’s booming, high-tech economy.
We estimate nearly three million Texas households still lack access to broadband internet and another five million lack access to reliable, adequate digital connectivity. The network will only be as strong as our weakest digital connection point.
The Legislature this year has a once-in-a-generation opportunity to invest a significant portion of the State’s historic revenue balance toward ensuring all Texans have access to this important resource.
Texas is well positioned to bridge that digital divide further by using those State dollars to leverage what may be billions of dollars in federal funding available to the State for broadband expansion to underserved areas.
The same Texas 2036 poll found that 88 percent of Texas voters said that it was important for the Legislature to maximize its drawdown of federal broadband funds with 64 percent saying it is “extremely” or “very” important.
These are just a couple of examples of our lawmakers minding the basics. They’re also engaged in historic efforts to:
make healthcare more affordable and more accessible to more Texans
reform our system of funding Texas’ public community colleges to ready tomorrow’s workforce for emerging, high-demand jobs
invest more in the State park system, which benefits Texans everywhere.
With just a week left in the legislative session, there’s still time for Texas lawmakers to close the deal on all of these high impact, long-term investments for our State. Future generations of Texans are depending on it.
A.J. Rodriguez is the Executive Vice President of Texas 2036, a nonpartisan and nonprofit public policy organization.

 

March 6, 2023

Open Government Advocates Celebrate 50 Years of the TPIA

 

– Working to Strengthen Texas’ Open Records Law 

The venerable Texas Public Information Act celebrates its 50th anniversary of passage this year.

Originally known as the Texas Open Records Act, it was once considered a model Open Records law, but decades of tinkering and court rulings have led to an erosion of records requestors’ right of access. 

TAB and other Open Government advocates are working this session to give the law some teeth and shore up some of the previous legislative damage.

Next week marks the March 12-18, 2023 observation of national “Sunshine Week,” a celebration of state and national transparency laws and the public’s use of them to hold government  accountable to taxpayers.

As this is happening, there have been other recent reminders of how Texas’ Open Records law came to be in 1973.

Former Texas House Speaker Gus Mutscher, D-Brenham, passed away Feb. 26 at the age of 90.

Mutscher served as Speaker amid a genuine Texas legislative imbroglio involving influence peddling and personal financial enrichment at the Capitol.

Frank Sharp, a Houston banker, had arranged lucrative stock purchases for key lawmakers as favors for passing beneficial banking legislation that benefitted him.

It became known as the Sharpstown scandal, its name coming from one of Sharp’s business entities, Sharpstown State Bank.

Indictments came down against several Texas elected officials as the 1971 legislature began.

Mutscher was convicted of conspiring to accept a bribe and resigned in 1972 only to be cleared of the charge on appeal.

Another reminder?

St. Rep. Rayford Price, D-Palestine, who briefly succeeded Mutscher as Speaker, passed away Feb. 21.

The Sharpstown scandal led to a wholesale turnover of elected officials in the 1972 election, from statewide office to statehouse posts.

A bipartisan group of lawmakers hellbent on changing each chamber’s rules and enacting transparency reforms returned to the statehouse in 1973.

They were encouraged by a new Lt. Governor, House Speaker, and Attorney General – Democrats Bill Hobby, D-Houston; Price Daniel, Jr., D-Liberty; and John Hill, D-Austin.

The transparency reform efforts of the 1973 session led to the creation of what is now known as the Texas Public Information Act, as well as improvements to the Texas Open Meetings Act whose genesis was in the late 1960s.  

Campaign finance disclosure laws also were vastly improved.

TPIA Changes Being Sought

Defending the TPIA has become a time-honored tradition for TAB and other “usual suspects” in Open Government advocacy, namely, the Texas Press Association and the Freedom of Information Foundation of Texas.

TAB and these groups are working this session to improve the TPIA, seeking changes in five priority areas. 

Contracting Transparency

Clarify state law to ensure that local and state officials expedite the release of statutorily designated “super public” information such as the dollar value and descriptions of goods and services.

• SB 680 by Sen. Nathan Johnson, D-Dallas, referred to the Senate Business and Commerce Committee on Feb. 17

• HB 2492 by Rep. Giovanni Capriglione, R-Southlake, filed on Feb. 17

Public Information Requests & Remote Work Policies

Amend the Texas Public Information Act to clearly define what constitutes a “business day” under the Act to ensure the timely response to public information requests and that officials honor their obligation to respond to all requestors whether working remotely or not.

• SB 618 by Sen. Nathan Johnson, D-Dallas, referred to the Senate Business and Commerce Committee on Feb. 17

• HB 2135 by Rep. Terry Canales, D-Edinburg, filed on Feb. 9

• SB 43 by Sen. Judith Zaffirini, D-Laredo (“Business Day” only), referred to the Senate Business and Commerce Committee on Feb. 15

• SB 44 by Sen. Judith Zaffirini, D-Laredo (“Required Response” only), referred to the Senate Business and Commerce Committee on Feb. 15

Searchable-Sortable Records

Codify guidance from the Texas Attorney General’s office directing government officials to release public information stored in spreadsheets in their original format, rather than converting them to PDF images that cannot be easily searched and analyzed.

• SB 45 by Sen. Judith Zaffirini, D-Laredo, referred to the Senate Business and Commerce Committee on Feb. 15

• SB 965 by Sen. Nathan Johnson, D-Dallas, referred to the Senate Business and Commerce Committee on March 3

• HB 2493 by Rep. Giovanni Capriglione, R-Southlake, filed on Feb. 17

Dates of Birth

Protect Texans’ privacy and safety by ensuring public access to dates of birth records in criminal justice 

and electoral candidate documents.

• SB 46 by Sen. Judith Zaffirini, D-Laredo), referred to the Senate Business and Commerce Committee on Feb. 15

• HB 2309 by Rep. Todd Hunter, R-Corpus Christi, filed on Feb. 14

Texas Public Information Act/Attorney Fees

Require governmental agencies pay requestor’s attorney fees when these entities voluntarily release 

records after a suit has been filed.

• HB 2874 by Rep. John Smithee, R-Amarillo, filed on Feb. 27

If enacted, these legislative initiatives would strengthen Texas’ government transparency law and help foster public trust in government.

 

March 3, 2023

Texas Broadcasters Advance Policy Concerns in Congress

 

– Music Royalties, NextGen TV, Big Tech Top Agenda

TAB dispatched a 25-person delegation to Washington, DC last week to advocate for local Radio and Television broadcasters’ top policy concerns before members of Congress, meeting with all but two of the state’s 40 House and Senate offices.

The TAB delegation pressed lawmakers to:

• Support HConRes 13, The Local Radio Freedom Act. The measure opposes efforts by the recording industry to force local Radio broadcasters to pay a new performance royalty in addition to the hundreds of millions of dollars broadcasters already pay collectively to artists through SoundExchange, ASCAP, BMI, SESAC and GMR.

• Encourage the FCC to move quickly in establishing a new task force to accelerate the deployment of NextGeneration Television. The new technical standard ensures local TV broadcasters can thrive in the modern media marketplace with mobile service, better video and sound, enhanced emergency alerting, multilingual options and more – all free, over the air.

• Approve the Journalism Competition and Preservation Act. The legislation would create a temporary anti-trust exemption to allow broadcasters and all other interested publishers to collectively negotiate with individual Big Tech companies on the terms of use of their content.

The meetings were held over two days following the NAB’s State Leadership Conference which attracted more than 560 local broadcasters from across the country.

 

FEBRUARY  2023

 

February 27, 2023

Advertising groups are pushing the Federal Trade Commission to reject a law professor’s petition to have the FTC regulate some programmatic ads as it considers issuing privacy regulations. “The reasonable use of data provides tremendous benefits to consumers, the economy, and society as whole, and helps assure our nation’s current competitive position globally,” said the Interactive Advertising Bureau. “Were the petition to be granted, the unreasonable restrictions on the data-driven digital advertising ecosystem would significantly impede innovation, reduce consumer choice and increase consumer costs, as well as create barriers to entry for new market participants.” Brooklyn Law School professor Jonathan Askin maintains people shouldn’t have to bear the burden of reading a privacy policy, rather, “the burden to be compliant and respectful of privacy should be placed on those who have the knowledge, expertise, ability, and resources to do so — the ad tech companies themselves.”

 

February 15, 2023

Texas Sustains Strong Presence on Key Congressional Panels

 

Texas has long been well represented in Congress’ most influential committees charged with oversight of major industries powering the Lone Star economy. That tradition continues in 2023, particularly when it comes to the panels most important to Texas broadcasters.

In the House, where 435 members jostle for position based on seniority, fundraising prowess and relationships with leadership, four committees stand out.

The Judiciary and Energy & Commerce committees share oversight over broadcasters’ primary interests, while the Appropriations and Ways & Means committees hold sway over spending and tax policy.

Texans hold 22 seats on these four committees combined, with some also serving on the subcommittees charged with specific oversight on broadcasters’ highest policy priorities.

These assignments are particularly helpful as TAB prepares to send a 25-member delegation of local broadcasters to DC later this month to advocate on protecting Radio stations from a Performance Tax and reining in Big Tech’s anticompetitive behavior in the advertising market.

Here’s how the assignments break down across the four panels:

Energy & Commerce

• Michael Burgess, R-Lewisville
• Dan Crenshaw, R-Houston
• Lizzie Fletcher, D-Houston
• August Pfluger, R-San Angelo
• Randy Weber, R-Lake Jackson
• Marc Veasey, D-Dallas

Judiciary

• Veronica Escobar, D-El Paso
• Sylvia Garcia, D-Houston
• Lance Gooden, R-Terrell
• Sheila Jackson Lee, D-Houston
• Troy Nehls, R-Richmond
• Wesley Hunt, R-Houston
• Nathaniel Moran, R-Tyler
• Chip Roy, R-Wimberley

Ways & Means

• Jodey Arrington, R-Lubbock
• Lloyd Doggett, D-Austin
• Beth Van Duyne, R-Irving

Appropriations

• Chair:  Kay Granger, R-Arlington
• John Carter, R-Round Rock
• Michael Cloud, R-Victoria
• Henry Cuellar, D-Laredo
• Jake Ellzey, R-Midlothian
• Tony Gonzales, R-San Antonio

Plum Roles for Cruz, Cornyn in Senate

 

Cruz serves as the highest ranking Republican on the upper chamber’s Commerce, Science & Transportation committee and was key to advancing the Journalism Competition and Preservation Act from that panel last summer.

He joins Senator John Cornyn in serving on the upper chamber’s Judiciary committee which, in part, deals with copyright matters.

 

February 13, 2023

FCC spectrum authority top priority of New House Chair

House Energy and Commerce Committee Chairwoman Cathy McMorris Rodgers R-Wash., said today that she is looking to pass legislation firming up the Federal Communications Commission’s (FCC) spectrum auction authority after a similar measure failed to clear the Senate last year.

Rep. McMorris Rodgers talked about the importance of that legislative effort at an event organized by Punchbowl News.

“We’re going to work,” the committee chair said. “It’s important that we reach an agreement as soon as possible and that we ensure that the FCC can be opening up new [spectrum[ bands and ensuring that we continue to lead in the allocation of spectrum,” she said.

There’s a pressing need to get a new spectrum bill on the books as the FCC’s spectrum auction authority is set to expire on March 9.

Rep. McMorris Rodgers cited the need for legislative action on spectrum issues as fitting into U.S. competition with China on technology development.

“American leadership matters, and we see a growing threat from China,” she said. “China is making it very clear that they want to lead from an economic and technological, as well as a military power.”

“They want to be the dominant power,” she continued. “All of that is informing our efforts and only underscores the importance when it comes to an issue like spectrum, it is a national security issue.”

 

February 8, 2023

Annual compliance regulations: Is your business ready?

BY SOCIETY FOR HUMAN RESOURCE MANAGEMENT

 

With each new year, federal and state rules and regulations evolve, requiring businesses to take extra measures to ensure compliance and minimize liability. Whether these new policies have minor or comprehensive impacts, employers must make employees aware of all changes affecting their rights, responsibilities and protections within the guidelines of these new laws, while complying with any employer requirements defined by the same.

Updating policies to reflect said changes can be time-consuming and, at times, confusing. Luckily, companies like SHRM provide helpful compliance tools that ensure individual state and federal legalities are covered.

The necessity for compliance

All companies, big and small, are required to adhere to certain protocols to remain in business under US law. These regulations can be state-driven, federally mandated, or industry-specific, depending on the parameters of their respective field. Ensuring these guidelines are followed should be every company’s main priority – not doing so could leave your business at risk to hefty fines. In fact, the US Department of Labor (DOL) recently announced an increase in their maximum penalty for Occupational Safety and Health Act (OSHA) violations to an astronomical $14,502 per day.

To bring further attention to employee rights, the US Equal Employment Opportunity Commission (EEOC) recently released a new “Know Your Rights” poster, which updated the previously posted “EEO is the Law” poster. These updates must be posted either physically or digitally—and in some states, both—by the employer and accessible by all employees. Physical and digital labor law poster subscriptions offer businesses the ability to put compliance on autopilot. Any time a change is made, employers automatically receive new, current posters, taking the guesswork out of labor law change compliance.

Build a valuable employee handbook

As new regulations are released, it is even more critical to keep employees updated of changes and how they may be affected by them. An effective way to accomplish this is by keeping an up to date employee handbook and making it readily accessible to employees. A builder tool can simplify the creation of this helpful resource to ensure compliance and avoid confusion over rights and responsibilities.

Digital optimization and compliance

Changes to FMLA programs, for example, have immediate effects on an employee’s life and wellbeing. Failure to notify employees of critical changes to their benefits can lead to hostile working conditions and even lawsuits. With each state having its own laws and regulations to follow, it is no wonder there is so much confusion regarding employee benefits and protections. Large companies have an even harder time keeping track of regulations varying across multiple states, making a streamlined solution critical. Companies that succeeded during the pandemic leaned heavily into digital solutions, for everything from hosting meetings to staying compliant. Digital optimization has become the new norm, and it’s here to stay.

Digital solutions, provide employers guidance and resources to create their state- and company-specific FMLA policies, stay up-to-date on their state’s FMLA requirements, access templates for required forms, and generate various leave reports, all in one place. In addition to these fantastic benefits, employees can:

• Determine leave eligibility based on parameters set for your programs.

• Receive email notifications when important leave dates and milestones are nearing.

• Access a range of FMLA forms that can be filled out, printed, and/or saved.

As we ramp up productivity and make plans for 2023’s big goals, let technology do the heavy lifting to handle critical tasks, like complying with regulatory updates, minimizing penalty liabilities, and communicating benefits and rights to employees, and ensure a happy and healthy new year for the business and those working within it.

 

February 1, 2023

 

5 Questions on the FCC’s EEO Obligations for Broadcasters

By David Oxenford 

Beyond the general requirement that all broadcasters (and all other businesses) avoid discrimination in hiring, promotion, and all other employment practices, the FCC imposes additional obligations on radio and TV stations that are part of “employment units” with 5 or more full-time employees.  An employment unit is defined as a station or commonly controlled cluster of stations serving the same general geographic area that share at least one employee.  Full-time employees, for FCC purposes, are employees who work at least 30 hours per week. 

1. 1.  Generally, what are the basics of the FCC’s Equal Employment Opportunity requirements?

For broadcasters, the FCC rules set out a three-prong EEO outreach program designed to facilitate the hiring of those not already in the broadcast industry.  The program encourages hiring outreach to alert all members of a community about job openings at a broadcast station, and to educate and inform the community about broadcast employment.

The first prong requires broadcasters to “widely disseminate” information about virtually all full-time job openings at a station. The wide dissemination requirement obligates the broadcaster to provide information about all openings for full-time jobs at its stations in such a way so as to reach members of all groups within its community. 

In the past, broadcasters were required to use more traditional recruitment sources for dissemination of information about job openings, sending notices of vacancies to local community groups, employment agencies, educational institutions, and newspapers to solicit candidates for virtually all open positions at any station. Under an FCC ruling about 5 years ago, while the FCC encourages the use of multiple recruitment sources, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community.  The broadcaster must self-assess the success of its dissemination and, if they are not getting diverse candidates from the recruitment sources that they use for each job vacancy, they need to consider expanding the scope of their outreach efforts in order to reach diverse candidates.

The second prong of the FCC’s EEO rules requires that broadcasters notify any community group about job openings at the station if the community group specifically asks to be notified of such openings. Stations need to provide such notifications to community groups that ask, and to publicize through on-air announcements or through other means reasonably designed to reach the groups within the station’s community, the fact that community groups can request that they be included on the list of groups getting notifications.

The third prong of the EEO program for broadcasters is the obligation to do “non-vacancy specific outreach.”   The FCC has provided a menu of options for efforts that stations can undertake to educate their community about the jobs available at broadcast stations and the training necessary to fill those jobs, as well as the training of employees and others to assume new responsibilities at broadcast stations. These menu options include activities such as internship and mentorship programs, speaking before community groups about job openings, providing scholarships for those interested in broadcasting, working with educational institutions to educate their students about broadcast jobs, setting up training programs to prepare existing employees to assume new responsibilities, EEO training for management, and similar programs.  Depending on market size and the nature of the activity, stations need to have their employees meaningfully participate in numerous menu options in every two-year period, even if they have no job openings in these periods.

2. Does the FCC require wide dissemination of information about openings for part-time employees?

While the FCC does not require wide dissemination of information about openings for part-time employees, there are advantages to broadcasters who do go through the outreach process for such openings.  If a broadcaster widely disseminates information about part-time job openings before filling such a position, if the person hired proves to be a capable employee that the broadcaster wants to hire on a permanent, full-time basis, they can do so without any further recruiting efforts.  If the broadcaster did not widely disseminate information about the job opening before hiring the part-timer, before promoting them to a full-time position, they must widely disseminate information about the full-time position to see if anyone with better qualifications applies. 

3. Should a station participate in State Association-sponsored Career Fairs to bolster EEO outreach credit? 

Yes. As noted above, stations need to do non-vacancy specific outreach efforts to inform members of their communities about broadcast jobs, whether or not they have specific jobs to fill. One of the menu options available to meet that obligation is attendance at job fairs by management-level employees who are involved in the hiring process. If station employees attend 4 job fairs in a two-year period, they get one credit toward meeting their obligations (smaller stations need 2 credits in each two-year period measured from their license renewal filing date to meet their non-vacancy specific outreach requirements, larger stations in larger markets need 4 credits in a two-year period).

4. When does the FCC review station EEO practices? 

The FCC reviews the EEO practices of broadcast stations on a regular basis.  Each year, employment units with 5 or more full-time employees must upload to the FCC-hosted online public file of each station within their unit an Annual EEO Public Inspection File Report.  This report details each full-time job opening filled in the prior year, with information about the recruitment sources used to fill the positions, and which sources resulted in candidates who were interviewed for the open positions, as well as the recruitment source of the person who was hired.  The annual report also must summarize the non-vacancy specific menu options in which employees of the station participated during the year. This report must be uploaded by the anniversary of the due date for a station’s license renewal application.

The FCC can ask for further information about employment practices at a station if they receive any complaints about the station’s EEO performance.  For television stations and larger radio groups, they routinely review the Annual Public File Reports of all stations in a state at the mid-point of the license renewal cycle (April 2024 for Indiana radio, and April 2025 for Indiana TV).  The FCC also conducts annual audits of 5% of all broadcast stations, reviewing not only the public file information, but also asking for documentation that supports the EEO efforts specified in the annual reports.  Finally, the FCC reviews EEO performance of stations when it reviews the station’s license renewal application.

5. Do you see any additional EEO-related changes on the horizon?

The FCC began a proceeding about 5 years ago to review its EEO rules to determine if there should be changes to make them more effective.  The FCC did not propose any specific changes in its rules, instead asking for general comments on what could be done to make the rules more effective.  The comments ranged from those urging fewer specific obligations on broadcasters with more emphasis on those who violate general employment discrimination principles applicable to all businesses, to those seeking more specific goals for station recruiting efforts.  Likely, further public comments will be required before the FCC adopts any specific proposal advanced in that proceeding.

The FCC is also contemplating the return of the FCC Form 395-B, an annual employment report detailing the gender and the race or ethnicity of all station employees and classifying these employees by the job function that they fulfill at the station (e.g., management, on-air, sales, engineering, or clerical).  The filing of this report was suspended over 20 years ago when a court found its use was discriminatory, as the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce.  The FCC wants to bring back the form to track employment practices in the broadcast industry but is struggling with privacy concerns and with how to collect the employment data without violating the court’s mandate against using the information for enforcement purposes.

*     *     *

JANUARY  2023

 

January 26, 2023

An Overview of the Hot Policy Topics in Music Licensing

By David Oxenford 

Royalties paid for the use of music by broadcasters and digital media companies, and other issues about music rights, can be an incredibly dense subject, with nuances that can be overlooked.  I participated in a CLE webinar earlier this week, sponsored by the Federal Communications Bar Association, where we tried to demystify some of the issues in music licensing (see description here).  I moderated a panel on the Hot Topics in Music Licensing, talking about the broadcast performance royalty, the appeal of the webcasting royalty decision, issues about the proliferation of performing rights organizations seeking royalties for the public performance of musical compositions, and more theoretical issues about the entire process of clearing music for use by broadcasters and other businesses.  To highlight some of the issues, and some of the tensions in the world of music royalties, I put together the attached article.  Hopefully, it provides some context on the relationship between some of these hot topics, and gives some food for thought as to how these issues can be addressed. 

As 2023 begins, our “Hot Topics” panel will look at some of the current legal and policy issues in music licensing that may be relevant to the communications industry.  Most of the issues we will discuss are ones that have been debated, in one form or another, in copyright circles for decades.  But, as copyright can be so complicated with many stakeholders with differing interests, the chances of any final resolution to any of these issues may well be small.  This article is meant to put some of those debates in context, as many of the specific issues, in one way or another, are intertwined. 

The issue that likely will be the most contentious this year (and has been for decades) is the continuing effort of the recording industry to establish a public performance right in sound recordings that would apply to non-digital performances.  For over 25 years, recording artists and the record labels (which usually hold the copyrights to popular recordings) have had a right to a performance royalty for digital performances.  Broadcasters who stream an online simulcast of their programming, along with webcasters and others who make non-interactive digital transmissions, must pay a performance royalty, generally to SoundExchange.  The rates to be paid are set by the Copyright Royalty Board.  But in the US, over-the-air broadcasters, restaurants, bars, clubs, retail establishments, and others who publicly perform music pay only for the performance of the musical compositions (the “musical work”), not for the performance of the song as recorded by a particular artist (the “sound recording”).  That has been a point of contention for a century, almost from the moment when recorded music first appeared, but the issue has become particularly heated in the last two decades, once the sound recording public performance right was established after being mandated by copyright legislation in the late 1990s.

The recording industry has been particularly focused on establishing the sound recording performance right for over-the-air-broadcasting, arguing that the right is common throughout the rest of the world, and that music creators and copyright holders should be compensated when others are using that music as the basis of their business.  Broadcasters have traditionally argued that they provide the promotional vehicle by which artists attract audiences to buy their recordings and attend their concerts.  The artists and labels now contend that this promotional value is not nearly as significant as it once was, with the plethora of other means to distribute music.  But there is also a question of economics.  Broadcasters have argued that any royalty should be a negotiated one, as taking additional money out of a broadcast industry that is under attack from all sorts of new competition could well cripple the services provided by broadcasters, at the same time that more and more rights holders are seeking a bigger and bigger “piece of the action” from broadcasters.

In the last Congress, artists and labels pushed for passage of the American Music Fairness Act to establish this royalty, trying to carve out support from smaller broadcasters by proposing low rates for small, independent broadcasters.  Other rates under the proposed legislation would have been set by the Copyright Royalty Board using the “willing buyer, willing seller” standard that attempts to establish the value that a competitive market would put on such rights.  While that bill passed the House Judiciary Committee in the last Congress, it never made it to the floor of Congress, but likely will be reintroduced this year.

At the same time, broadcasters and other music users feel that they have been squeezed by royalty demands from all quarters.  The traditional performing rights organizations (“PROs”) that collect royalties on behalf of songwriters and their publishing companies for the public performance of the musical work (the two largest being ASCAP and BMI), are always seeking higher royalties, as they are under pressure from their own members who, in some cases, are looking at alternative collection societies that promise higher royalty payments.  The rates paid by the radio industry to ASCAP and BMI are currently under negotiation.  ASCAP and BMI are nonprofit organizations (though BMI last year announced that it was investigating financial alternatives, including a possible sale) and both are bound by antitrust consent decrees, requiring them to treat all artists in the same non-discriminatory way, paying them at the same royalty rates.  Traditionally, these two PROs have been limited to only licensing performance rights for musical works, while newer competitors can provide wider services to artists, including collection of mechanical royalties (paid when a reproduction of a song is made, e.g., when a record is pressed, a download made, or an on-demand stream is served) and even sync licensing (permission to use a song within an video or audio production, like in a movie, commercial, or podcast). 

The two traditional PROs have competition from SESAC, which has been around for decades but in recent years has been owned by private equity companies and has expanded beyond simply collecting performance royalties into providing other licensing services. Through litigation, both the radio and TV industry have secured the right to force SESAC to submit to an arbitration panel if it cannot reach a voluntary royalty rate in negotiations with broadcasters; however, other antitrust restrictions do not currently apply to SESAC’s operations.  Global Music Rights (GMR), another privately owned PRO, is not governed by any antitrust restrictions, having forced the radio industry last year to abandon litigation to impose such restrictions.  Instead, GMR has offered license agreements to the commercial radio industry at rates that, while not public, did not receive widespread praise for their reasonableness.  Not only can these for-profit PROs offer artists incentives to abandon the traditional PROs, but the big publishing companies (many owned by the record labels) have talked about withdrawing from ASCAP and BMI in order to license music themselves, especially to the big digital music services.  Competition between these groups, particularly for the most successful songwriters, puts upward pressure on royalty rates.

And it is not just music royalties that are being sought, but now PROs representing the writers of comedy and spoken-word material that is recorded and played by radio, TV, and digital services are demanding their own performance royalties.  While SoundExchange collects royalties for all sound recordings, whether music or not, the musical works PROs are limited by the consent decrees or their business practices to only representing musical works.  These spoken word organizations have been active in pursuing royalties from many of the big digital services in the past two years.  Watch for their efforts to continue and possibly expand in the near future.

These developments only scratch the surface of the rights issues that exist.  Digital music services are now beginning to deal with the results of the Music Modernization Act, enacted in 2018, which created a music rights collective to collect the mechanical rights for musical works used by on-demand services like those offered by Spotify, Amazon, and Apple.  Rates for these rights are also overseen by the Copyright Royalty Board, although the music services and rightsholders recently announced a settlement for the royalties to be paid by these services for the next five years.  These digital music services must negotiate directly with the copyright holders for the rights to use sound recordings in on-demand services, resulting in royalty rates that reportedly approach 75% of a service’s income.  With music royalty rates so high, some of these services have started to emphasize podcasts and other material that does not result in paying high music royalty payments.

In a normal marketplace, when the cost of goods used by a business gets too high, the business will search for new suppliers who can provide the needed goods at a lower price, or it will seek substitutes for those goods. To some extent, the increase in podcasts and other non-music programming on some of the big digital platforms may represent that search for substitutes.  But, on the music side of things, it is not that simple.  Few music services or music radio stations can survive with recordings from only one record label, as consumers want to hear their favorite songs regardless of the label on which that song is released.  Musical works performing rights are even more complicated as, particularly in today’s music industry, there are often multiple songwriters on any popular song, and each songwriter may be a member of a different PRO.  To get the rights to play the song, the radio station cannot just rely on the rights from one PRO, as it generally needs all the rights from all the PROs in any song to play that song.  Plus, each of the PROs have attracted core songwriters in multiple genres of music, making it difficult to work around the music that they license.  Thus, music services generally cannot get by simply by paying only one PRO. 

There is the additional complication of it being very difficult to understand the ownership of various musical rights.  There is no universal registry of who owns what rights to what songs and, even when it is clear who owns a particular set of rights, it may be difficult, especially for a small entity, to get the attention of a rightsholder to try to directly license the music.  The Music Modernization Act promised to create a directory for musical works, but so far that promise is just aspirational.  The catalogs listed on the sites of most PROs include caveats that they are not legally binding. 

Similarly, as sound recording rights are bought and sold in an active trading market, just knowing the name of the band or record label may not get you the name of who needs to be contacted to clear music rights.  So far, online exchanges have not come to represent a wide enough swath of music to facilitate easy transactions to allow a music service to pick and choose the music that it wants to use.  There is no market by which suppliers of music can be played off each other for the music service to lower its costs.  The murky nature of rights ownership, and the need for music services to have the rights to play virtually all songs in order to be attractive to consumers, allows each service to use the rates given to other services to create a constant upward march in royalty rates.  Once a GMR gets a high rate through contracting with must-have songwriters and outlasting the radio industry in litigation, its rates will serve as a benchmark for negotiations with the other services to demand higher rates, and those new rates will in turn be used to demand higher rates by the next PRO in line to negotiate.  PROs are also now beginning to index their royalties to the amounts paid for sound recording performance rights, linking those two rights together where an increase in one spurs an increase in the other. 

Is there a better way?  One thought that has been floated is to create one pot for all payments for music use where any music user, whether it be a big on-demand digital media company or a local radio station, would pay one set price for the music that it uses.  That total price paid for music is what is important to the service – not how much each of the competing PROs should receive, and not how much should be paid for the sound recording versus the musical work.  If there was a single pot into which all royalties could be paid, then those royalties could be divided up by the artists, songwriters, and copyright holders.  Those in the music industry are in a better position than the music service to determine who should be entitled to what percentage of the total pot.  Those in the music industry have the information as to who owns what rights.  They know what is being paid for those rights in the open market.  This system would be similar to the proceedings held by the Copyright Royalty Board to distribute among TV rightsholders the royalties paid by cable systems for programming carried on distant television signals carried by these systems.  How these royalties are divided is really a dispute between these rightsholders, not between the music service using the music and the rightsholder. 

Of course, any such system would upend the business models of the many collection societies that have sprung up to distribute music royalties – so don’t look for this solution anytime soon.  Until then, the debates will go on as to who should be paid how much by each music user. 

 

January 18, 2023

State Lawmakers Start Slowly as Revenue Hits Staggering High

 

– $72 Billion More Than Current Budget; Special Session?

State lawmakers are back in session and getting off to their usual slow start as Senate and House leaders weigh committee assignments and take time this week to inaugurate Gov. Greg Abbott and Lt. Gov. Dan Patrick, each of whom is starting a third four-year term. Top of mind for all of them is the extraordinary amount of additional revenue available to fund not just existing government services, but also potentially a long list of neglected needs and various tax cuts.

Texas journalists broadly reported on Comptroller of Public Accounts Glenn Hegar’s recent announcement that the state had a $32.7 billion surplus in the current budget cycle, but that number is less than half of the story – though certainly notable as the highest surplus in the state’s history.

When that surplus is combined with all of the state’s tax and other revenue projections for the next two-year budget cycle, total revenue available is actually $71.9 billion more than lawmakers appropriated in the 2022-23 budget cycle.

State budget wonks at the Texas Taxpayers and Research Association (TTARA) attribute this new money fairly evenly to inflation, a healthy oil and gas industry and a much stronger economy overall. Moreover, they remind us that Texas doesn’t really live up to its reputation as a “low-tax state.”

THE (PARTIAL) MYTH OF TEXAS AS A LOW TAX STATE

So Much, They Can’t Spend It All

Even if they were so inclined, which they’re not, the legislature would find it difficult to spend all the new revenue.

Legislative leadership has adopted a growth limit in appropriations of state tax revenue for the 2024-25 budget cycle of 12 percent.

Once they complete their biennial ritual of supplemental appropriations for the current budget – primarily $5 billion for Medicaid expenses they knew were coming but deliberately underfunded – that brings the spending limit to $139.6 billion, or $20 billion more than spent in the current budget.

That leaves about $43.5 billion of new revenue above the spending limit, making the spending limit itself the huge question for lawmakers.

They can vote to exceed the limits on their own with a simple majority, or they can avoid potential voter backlash by putting higher spending to a public vote, thereby exempting that spending from the constitutional limit.  The latter move would require a two-thirds vote of both chambers, instead of just a simple majority, meaning bipartisan negotiations would be needed to fund big ticket items.

Such items might include infrastructure investments including broadband, roads, coastal protection, the state’s electrical grid and other state and school facilities.

Other identified priorities include strengthening the state’s pension systems, providing property tax relief, and increasing school funding to address inflation, raise teacher pay and benefits, and reducing recapture payments from school districts designated as “property wealthy” by the state, otherwise known as the state’s “Robin Hood” school funding system.

Sustainable Revenue Picture?

Lawmakers want to avoid creating structural problems in state finances and be certain that the higher revenue base is sustainable for the long term.

With the new revenue picture including a nearly $33 billion surplus, that indicates a roughly $150 billion package of spending increases and tax cuts is readily achievable, which is another $10 billion beyond the new spending limit.

And there’s still the state’s Economic Stabilization Fund, commonly referred to as the Rainy Day Fund, to consider as it approaches its $27 billion limit in 2025.

Clearly, state lawmakers can look beyond spending increases to tax cuts as ways to make a huge difference in Texans’ lives and businesses.

Some potential targets include cutting school property tax rates, increasing the homestead exemption, lowering the homestead appraisal cap, and extending the appraisal cap to include commercial property.

Other potential targets could include reducing the sales or franchise tax rates, expanding exemptions for various state taxes, or even issuing property tax reimbursement checks to taxpayers.

While being awash in money is a great problem to have, it could be more than they can resolve in their regular 140-day session which ends May 29, which begs the question: Will lawmakers complete all this work without a special session?

 

Open Government Reforms on Agenda as Lawmakers Return

 

If recent trends continue, lawmakers will file about 7,000 bills and resolutions during the regular session of the 88th Texas Legislature.  

Typically, however, only a small percentage of bills filed (15-20 percent) make their way to the governor’s desk in their original form or as part of other legislation.  

AAF should be hopeful that much needed reforms to Texas’ Open Government laws will be amongst those measures that “go the distance.”

The Texas Sunshine Coalition, a diverse group and other longtime Open Government partners such as the Texas Press Association and Freedom of Information Foundation of Texas, are working this session to strengthen the Texas Public Information Act (TPIA).

The coalition is focusing its legislative efforts to improve several areas of concern related to the TPIA, one of the primary tools of Texas newsrooms for newsgathering. 

Texas citizens have a right to know how public officials are conducting business and how taxpayer dollars are spent. 

Contracting Transparency

Although the Legislature passed Senate Bill 943 in 2019 to increase public access to government contracts following a troublesome Texas Supreme Court ruling known as Boeing, some governments still withhold contracting information, including “super public” information such as the dollar value and descriptions of goods and services. 

Even when governments do provide such information, they often defer to private companies or seek attorney general rulings to withhold or delay its release. 

Some even continue to cite Boeing. 

AAF’s goals should be to promote the closing of these TPIA loopholes. 

The Coalition has drafted legislation to address the issue and broadcasters should expect House and Senate bills to be filed soon.

TPIA Business Days, Administrative Issues

During the pandemic, many governmental entities declared they were closed for business when it came to TPIA requests, even though they continued to operate with a full staff of employees working remotely and many public records were available electronically. 

Some governments stated they were operating on a “skeleton crew” and ignored TPIA requests for months on end. 

Texas Association of Broadcasters and others seek to correct this problem by clearly defining what constitutes a “business day” under the Act. 

Open Government advocates also seek to ensure that governments honor their obligation to respond to all requestors whether working remotely or not. 

St. Sen. Judith Zaffirini, D-Laredo, has filed SB 43 and SB 44 to address these issues and a House bill should be filed soon.

Searchable-Sortable Records

Many governmental entities store public information in spreadsheets but convert these documents to PDF images before producing them to the public. 

This conversion is unnecessary and only makes it more difficult to search and sort information. 

For years, the Texas Attorney General’s Office has recommended producing documents in their original format, but some governments continue to resist this recommendation. 

AAF should push efforts to codify existing Attorney General’s guidance into law. 

Sen. Zaffirini has filed SB 45 to address the issue, and a House bill is expected to be filed soon.

Dates of Birth Access and Verification

In some public records, disclosing dates of birth (DOBs) helps ensure that individuals can be properly identified. 

This is particularly true in criminal justice documents, such as arrest records, when common names are involved. 

Disclosing DOBs on applications filed by candidates for public office also helps the public properly identify and better understand who is on the ballot. 

AAF should support restoring access to dates of birth in criminal justice and candidate public records to help ensure accuracy in newsgathering.  

Zaffirini has filed SB 46 to address the issue and St. Rep. Todd Hunter, R-Corpus Christi, is expected to file a House bill on the issue soon.

Attorneys’ Fees

The TPIA includes a provision stating that “the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails” in a mandamus suit. 

A plaintiff’s ability to be awarded attorneys’ fees is key to enforcement of the TPIA.  

However, a governmental body is permitted to produce requested records right before a judge signs an order awarding attorney’s fees and avoid paying those fees.  

TAB supports legislation amending the TPIA to explicitly include the awarding of attorneys’ fees when a governmental body decides to voluntarily release the records after a suit has been filed. 

This policy correction mirrors changes made in 2007 to the federal FOIA law, upon which the TPIA is modeled.  

Expect House and Senate bills to be filed soon using draft legislation prepared by the Texas Sunshine Coalition.

Law Enforcement Transparency 

More than any other Texas event in recent memory, the mass shooting at a Uvalde school in 2022 has made clear more transparency is needed to keep law enforcement accountable to the public which funds it. 

St. Rep. Joe Moody, D-El Paso, has refiled HB 30 from the 2021 legislative session, a bill which addresses several issues involving the law enforcement exception in the TPIA, Section 552.008 of the Texas Government Code. 

Importantly, the bill takes on the TPIA’s so-called “dead suspects loophole.” 

Currently, law enforcement can shield a wide variety of information in pending investigations and in closed cases that do not result in a conviction. 

Since the Uvalde school shooting suspect was killed by authorities, the case will not result in a conviction, yet the loophole was used to prevent release of information related to this criminal case. 

The victims’ families and the public were kept in the dark for months after that tragic day.  

Later, leaked information and video showed that law enforcement’s incident response did not match the official version of events.  

This exception in the TPIA has also been used to prevent release of information in incidents in which an arrested individual died in police custody.

But HB 30 would not stop there. 

It also requires the Texas attorney general to maintain an Internet accessible database of reports of officer-involved injuries or deaths of citizens and officer injuries and/or deaths. 

It adds to the list of information in an officer’s personnel file that must be released such as use-of-force reports, incident reports, extraordinary occurrence reports, emergency action reports, Taser-use reports, or any other report concerning the use of force or firearms by that officer or witnessed by that officer. 

Reports on incidents in cases in which physical or property damage was caused by a law enforcement vehicle, called fleet occurrence reports, would also be made public. 

The bill also makes public a list of other information such as basic information related to a criminal investigation; a search warrant; probable cause affidavit for search warrant; arrest warrant; arrest report; incident report or accident report; a mug shot; reports of an officer-involved shooting or discharge of a firearm; reports related to an officer’s use of force resulting in death or serious bodily injury; reports related to the death or serious injury of an arrestee or detainee while in custody.  

It also requires disclosure of disciplinary record information.

Finally, HB 30 would mandate the release of more body/dash or other law enforcement camera video. 

ADERSHIP

EDITORS’ PICK

Edelman Trust Barometer Says We Only Trust Business—And Democrats Trust It More 

 

Do you trust this man? 

Richard Edelman, President of PR firm Edelman – FORBES

The 2023 Edelman Trust Barometer is out and has declared that the people of the world believe business is the “only institution seen as competent and ethical.” As such, the PR giant says, business has emerged as an ethical force for good in a polarized world. And that, according to Edelman CEO Richard Edelman, means we are now looking for CEOs to be the leading voice on societal issues.

Okay, let’s unpack this a bit.

The online survey, now in its 23rd year, typically kicks off the World Economic Forum in Davos with a slate of statistics that show government, business, the media and NGOs engaged in a race to the bottom when it comes to who’s least trustworthy. (If you want to compare how we feel about CEOs to how they’re feeling about the world, I cited several recent studies in this piece.)

On an aggregate level, the Edelman study found 62% of 32,000 respondents in 28 countries said they trust business. About 59% said they trust NGOs, which may not sound like a huge difference to you but does put it into what Edelman calls “neutral” territory. Government and media come in at 51% and 50% respectively. (I apologize. Give us another shot.)

Technically, the top-line results don’t look all different from a year ago; business has technically moved up one percentage point. But the devil, of course, is in the details and it’s clear that the countries with the most polarized politics are paying a steep price in terms of trust. If you tally up the scores, business now holds a 53-point lead over government when it comes to competence and is 30 points ahead on ethics.

The message: governments are failing to deliver.

Here in the land that took 15 rounds to vote in a House Speaker, it may be no surprise that the United States is right up there in Edelman’s “severely polarized” quadrant. That’s calculated as a combination of perceived polarization and faith that those divisions can be overcome. Also in that quandrant are Argentina, Columbia, South Africa, Spain and Sweden. (It’s worth noting that the least polarized, by this metric, include Saudi Arabia, China and India.)

Dig deeper in the U.S. and you see that Republicans More Likely To Say Our Differences Are Insurmountable than Democrats. Half of Republicans say the U.S. is polarized and out views are entrenched, vs. one-third of Democrats. Only 26% of Republicans trust government, vs. 61% of Democrats, with an even larger divide for media. Only 23% of Republicans think they’ll be better off in five years while 48% of Democrats do.

 

January 13, 2023

How Snooki May Wind Up Changing Political Ad Rules For Everyone.

 

Following a decision last month to require new disclaimer requirements for online ads, including audio spots that stream on the web, the Federal Election Commission has turned its attention to disclosures for political promotions spread by media influencers – including broadcast hosts. The idea of expanding its oversight has so far brought mixed feedback, as some groups agree the FEC should require disclosures when a website, mobile app or ad platform is paid to “boost” content, such as making it more prominent on the app or social sharing content that promotes a candidate.

In a rulemaking proposal under consideration, the FEC would revise the definition of “public communication” to include communications that are “placed for a fee on another person’s website, digital device, application, or advertising platform” and incorporate that definition into a new category of communications that must carry disclaimers called “internet public communications.”

The Campaign Legal Center says it supports the proposal as a way to modernize regulations and to clarify political groups’ regulatory obligations when using new and emerging technologies and advertising tactics to reach voters. To prove its point, Brennan Center points to Nicole Polizzi—better known as “Snooki” from the MTV reality show “Jersey Shore”—who was paid to make a video supporting John Fetterman’s 2022 campaign for the U.S. Senate from Pennsylvania against Dr. Mehmet Oz. CLC says it was one of the most talked-about ads of the 2022 election cycle, demonstrating just how effective it can be to work with influencers. “Future candidates will surely take note,” it says.

In other cases, advocates say politicians frequently pay media platforms like Facebook to promote content. As with influencers, absent disclaimers, CLC says the public might reasonably conclude the promoted content is organic, when in reality it is targeted to them as part of a financial transaction, like any other kind of political advertising.

“To not specifically mention communications ‘promoted for a fee’ in the FEC’s regulations would represent a clear disconnect from the reality of advertising practices in the 2024 election cycle and for the foreseeable future,” CLC argues.

The Brennan Center for Justice also cites the Snooki ad for pushing the FEC to go further and explicitly require disclaimers for communications that are promoted for a fee on another person’s website, digital device, application, or advertising platform.

“There is no principled distinction between these newer methods of paid communication and typical online ads where the Commission’s disclaimer rules unambiguously apply,” Brennan argues. “If anything, the need for clear disclaimers is even greater for nontraditional advertising that resembles organic content.”

Free Speech Groups Oppose Rule

Even as the proposal draws praise, some free speech groups believe the FEC is on the wrong course. The Institute for Free Speech says the proposal would be “impermissibly vague” and “potentially overbroad,” suggesting the FEC itself is unsure of what it is intended to do. The Institute says that would be “dramatically expanding” internet regulations. It also complains the rulemaking is not about a technology modernization of the rules as advertised, but instead a policy change.

Citizens United says the FEC deserves credit for its recent work to modernize its disclaimer rules in light of technological developments. But it also thinks the proposal “goes too far, whether intentional or not,” and that “serious threats to the online free speech rights” lurk in its pages. Citizens United says no supplemental rules are needed, but if the FEC does move forward, it should limit its reach to simply making it clear that its operating under existing law regarding promotional advertising, not expanded regulation.

Some New Online Rules Already On The Books

The FEC voted in December to require new disclaimers for online ads, including audio spots that stream on the web. The end result will mean disclosures for online audio ads will not be the same as what is on the radio, but the guidelines governing the two will now be a step closer. Under the new rules, the digital ad disclosures will still need to be obvious, but the exact wording is not being spelled out. It also does not go as far as what is required for radio and TV stations.

“The new internet disclaimer provisions do not impose the stand-by-your-ad requirements applicable to radio and television advertisements on internet public communications,” the FEC wrote in its decision. It says that is to give candidates flexibility as they craft their ads as long as the disclosures also satisfy the requirements of the regulation.” The FEC says the disclosures will simply need to meet a “clear and conspicuous” requirement.

 

January 11, 2023

Looking Into the Crystal Ball – What’s Coming in Broadcast Regulation in 2023 From the FCC

By David Oxenford 

It’s a new year, and it’s time to look ahead at what Washington may have in store for broadcasters this year.  The FCC may be slow to tackle some of the big issues on its agenda (like the completion of 2018 Quadrennial Review or any other significant partisan issue) as it still has only four Commissioners – two Democrats and two Republicans.  On controversial issues like changes to the ownership rules, there tends to be a partisan divide.  As the nomination of Gigi Sohn expired at the end of the last Congress in December, the Biden administration was faced with the question of whether to renominate her and hope that the confirmation process moves more quickly this time, or to come up with a new nominee whose credentials will be reviewed by the Senate.  It was announced this week that the administration has decided to renominate her, meaning that her confirmation process will begin anew.  How long that process takes and when the fifth commissioner is seated may well set the tone for what actions the FCC takes in broadcast regulation this year.

Perhaps the most significant issue at the FCC facing broadcasters is the resolution of the 2018 Quadrennial Review to assess the current local ownership rules and determine if they are still in the public interest.  As we wrote last week, the FCC has already started the 2022 review, as required by Congress, even though it has not resolved the issues raised in the 2018 review.  For the radio industry, those issues include the potential relaxation of the local radio ownership rules.  As we have written, some broadcasters and the NAB have pushed the FCC to recognize that the radio industry has significantly changed since the ownership limits were adopted in the Telecommunications Act of 1996, and local radio operators need a bigger platform from which to compete with the new digital companies that compete for audience and advertising in local markets.  Other companies have been reluctant to endorse changes – but even many of them recognize that relief from the ownership limits on AM stations would be appropriate.

The Quadrennial Review also looks at the dual network rule that currently forbids the common ownership of two of the Top 4 TV networks.  Also under consideration is the potential for the combination of two of the Top 4 television stations in any local market.  Common ownership of such stations is only permitted now through what is essentially a waiver process.  The FCC has asked if there are specific criteria that could be adopted to evaluate those requests (e.g., a combination of the 3rd and 4th stations would be allowed if their market share did not exceed a specific percentage of the market – or the share of the higher rated stations in the market) so that applicants would have more certainty about whether a proposed combination would be allowed.  These issues are all fully briefed and argued to the FCC and are just awaiting an FCC decision. 

While not directly part of the Quadrennial Review process, the question of the national cap on television ownership could be a subject that a new FCC could review.  Television companies are limited from having an attributable interest in television stations reaching more than 39% of national television households.  There are several television companies that have exceeded that threshold by relying on the “UHF Discount” that counts UHF stations as reaching only half the households in their markets, a legacy from the days of analog television broadcasting, when VHF stations (those operating on Channels 13 and below) were the preferred means of transmission.  Once the conversion to digital occurred, the tables were reversed, as UHF channels are generally acknowledged to have superior transmission capabilities, an advantage that continues in the new ATSC 3.0 “Next Gen TV” transmission standard. 

Recognizing that reversal, the last Democratic Commission abolished the UHF discount (see our article here) only for that action to be reversed by the Pai administration (see our article here).  The Commission under Republican Chairman Pai questioned whether the FCC had the authority to repeal the UHF discount, as that discount had been in place when Congress enacted the 39% cap.  That administration also started a proceeding to review the national ownership cap for television companies, asking if the FCC could amend that cap on its own (or did it need authority from Congress) and, if so, what the limits on national ownership should be.  That proceeding has never been resolved, and this new Commission has yet not been faced with a proposed acquisition that relied on the UHF discount.  If a fifth Commissioner joins the FCC, this is an issue that may well be considered. 

Also on the horizon for TV regulation are several open proceedings to look at the transition to ATSC 3.0.  One that particularly seems ripe for decision is the Further Notice of Proposed Rulemaking seeking comment on the interplay between multicast channels and the ASTC 3.0 conversion – particularly in the context of the legal responsibility for “lighthouse” ATSC 1.0 programming streams left behind on the digital multicast stream of a host station by a station that has converted to the new transmission standard.  The Pai Commission proposed to make clear that the legal responsibility for the lighthouse signal would be the responsibility of the programmer, not the host station (see our article here from an earlier stage in the proceeding discussing the issue).  While that seems like a commonsense standard, issues about cable carriage and multiple multicast streams have clouded the proceeding, and it has yet to be resolved. Look for potential action at some point this year. 

Also pending is a proceeding to determine when to terminate the requirement for the duplication of programming of the primary broadcast stream on both the Next Gen and lighthouse legacy digital streams.  Other Next Gen TV issues, including the expansion of single-frequency networks, could be on the FCC’s agenda (see our article here on an FCC action approving these distributed transmission services) as a decision approving the expansion of these networks is still subject to FCC review because of reconsideration filings. 

Issues of TV white spaces devices and other unlicensed uses of the television spectrum also are under FCC consideration.  Also pending is the final resolution as to whether the “Franken FMs” or “FM6 stations” – LPTV stations operating on TV channel 6 with an analog audio service that can be received on FM radios at 87.7, will be allowed to continue to operate (see our article here).

EEO issues for both radio and TV also could be considered by a full-strength FCC.  The FCC has requested comments on bringing back the annual EEO Form 395, reporting on the race and ethnicity of broadcast employees (see our article here).  A rulemaking initiated by the last Commission looking at broader reform of the EEO rules is also still outstanding and could be given further consideration (see our article here). 

Political broadcasting is always an issue.  The requirement for quicker disclosure of advertising orders placed by political candidates and issue advertisers has been brought to the foreground by the hundreds of consent decrees signed by broadcasters across the country in past two years (see our articles here and here).  Disclosure requirements about the funding of political advertising backers has also been considered in previous administrations – and could make a return in this one (see our articles here and here). Watch for other clarifications of the political broadcasting rules that could come this year in the relative lull between election years.

For radio, there are various technical proposals that are still on the table for possible consideration.  Proposals for a Class C4 FM service (here) and the limited origination of programming on FM boosters through “zonecasting” (here) are pending and could be given further consideration.  While the C4 proposal is only at the Notice of Inquiry stage so any final rules, before being adopted, would have to be put out for public comment in a Notice of Proposed Rulemaking, the zonecasting proposal has already been on a Notice of Proposed Rulemaking.  The FCC proposals have been vigorously contested, opposed by many prominent broadcast companies while aggressively supported by the company that developed the system.  This proceeding could be considered by the Commission this year.  Proposals for increased power for HD subchannels for FM radio are also on the table for comment this month, and possible action later this year.

Enhanced public file obligations have also been proposed to obligate broadcasters to use a standard certification form for buyers of program time on a station to assess whether those buyers are acting as agents of a foreign government, with the FCC proposing that these certifications be added to the public file whether or not the programmer says that they have any connection to the foreign government (see our article here).  The FCC is also considering requiring broadcasters to certify regularly as to the steps they are taking to secure their EAS systems from hacking and other online breaches (see our articles here and here). 

These are only some of the potential policy issues affecting broadcasters that could be on the plate of a full FCC in 2023. Watch as the nominations progress to see what other issues of importance to broadcasters come up in the discussions on Capitol Hill.  Be prepared for other changes through proceedings we have not mentioned here, or through FCC actions in individual cases through the enforcement process or in connection with specific requests by broadcasters for technical changes or approval of acquisitions.  The FCC adapts to the issues of the day, and broadcasters need to be prepared for whatever comes their way from the new Commission. 

And the FCC is not the only entity making decisions that affect broadcasters.  The Courts, Congress, and other government agencies also make important decisions that can have a major impact on broadcasters – either through regulation of their core operations, or by affecting other aspects of their business, including digital media.  We will look at issues that may arise from Congress, the Courts, and other agencies in a subsequent article.  But, as set out above, there is no shortage of regulatory issues facing broadcasters in the coming year. 

January 10, 2023

Are Non-Compete Clauses A Thing Of The Past? Analyzing the FTC’s New Regulation Declaring Non-Compete Clauses An Unfair Method Of Competition

 

On July 9, 2021, President Biden issued an executive order that, among other things, directed the Federal Trade Commission (FTC) “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Making good on (and, in fact, going significantly beyond) this directive, on Jan. 5, 2023, the FTC released its proposed regulation which declares most non-compete clauses, and other clauses which have the effect of prohibiting competition, an unfair method of competition. This proposed regulation has a wide-reaching impact and is analyzed more fully below.

The Regulation

The FTC’s proposed regulation seeks to add a new subchapter J, consisting of part 910, to Title 16, Chapter 1 of the Code of Federal Regulations. Section 910.2(a) of the proposed regulation declares: “[i]t is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.” The term “worker” applies to both employees and independent contractors.

Section 910.2(b) of the proposed regulation requires employers to rescind existing non-compete clauses with their employees (current or past) within 180 days after the regulation is formally published and subsequently provide each employee notice of such recission within 45 days after rescinding the noncompete clause. Section 910.2(b)(2)(C) provides model notice language for employers to give to their current or past employees subject to non-competition obligations.

Section 910.3 provides a narrow exception to the ban on non-compete clauses, which permits a person who is a “substantial owner of, or substantial partner in” a business to enter into a noncompete agreement where that person is “selling a business entity or otherwise disposing of all of the person’s ownership interest in the business entity, or … selling all or substantially all of a business entity’s operating assets.”

Section 910.1(b)(1) defines a non-compete clause as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” Section 910.1(b)(2) expands this definition to include “a contractual term that is a de facto non-compete clause because it has the effect of prohibiting the worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer.” Such de facto non-compete clauses include a non-disclosure agreement “written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer” and contractual terms “that require[] the worker to pay the employer or a third-party entity for training costs if the worker’s employment terminates within a specified time period, where the required payment is not reasonably related to the costs the employer incurred for training the worker.”

Section 910.4 of the proposed regulation purports to preempt state laws to the extent such state laws are inconsistent with the proposed regulation.

The Regulation’s Potential Impact

The FTC’s proposed regulation will have a wide-ranging impact on all manner of businesses, big and small, across all industries. The regulation, if adopted, unequivocally precludes classic non-compete clauses entered into as a condition of employment. In addition, the FTC’s broad definition of non-compete clauses, which includes “de facto” non-compete clauses, creates the potential that broadly drafted non-disclosure, non-solicitation, anti-poaching monetary penalty clauses and other types of restrictive covenants meant to protect trade secrets, confidential business information and/or the exploitation of customer relationships and goodwill could violate the FTC’s proposed regulation and be effectively nullified.

As a result, should the FTC’s proposed regulation go into effect, businesses will not only be prohibited from using non-competition clauses, but they must also carefully review (and, if necessary, revise) their employment and post-employment contracts to ensure that any non-disclosure, non-solicitation, anti-poaching or other agreements intended to protect the business are narrowly tailored to avoid potential nullification through the FTC’s proposed regulation.

Further, and regardless of whether the rule is finalized or challenged on rulemaking grounds, the legal position underlying the FTC’s announcement creates additional risks to employers seeking to implement and enforce non-compete agreements.

The Future of the FTC’s Proposed Regulation

Whether the FTC’s proposed regulation will ultimately go into effect remains to be seen. Initially, the proposed regulation faces a 60-day public comment period, during which the public is invited to comment on the proposed regulation, which may or may not impact the final regulation. Comments on the proposed regulation may be made up to 60 days after the Federal Register publishes the proposed rule. The public comment period will open soon

Following the public comment period, the FTC will take another vote on the final regulation before final publication of the regulation. The final vote has not yet been scheduled.

The FTC’s proposed regulation is likely to generate significant and substantial litigation on various grounds, including, without limitation, that it exceeds executive authority and goes beyond the limited mandate of President Biden’s Executive Order. Bond will, of course, provide updates if and when the FTC’s rule is challenged on these and other legal grounds.

Conclusion

The future of non-compete clauses is murky. If the FTC’s proposed regulation goes into effect, non-compete clauses as we know them will be a thing of the past. However, the FTC’s proposed regulation will likely face many challenges in the weeks and months to come and may be tied up with legal challenges for the foreseeable future.

Should the FTC’s proposed regulation go into effect, employers will need to take steps to comply with the regulation, including by reviewing their employment and post-employment agreements to identify whether they contain any non-compete clauses and, if so, rescind such clauses and provide the necessary notice to employees. In addition, employers should immediately consider, in anticipation of the regulation going into effect, having their non-disclosure, non-solicitation, anti-poaching and other types of agreements reviewed and, if necessary, revised, to better ensure they are no broader than necessary to protect against the use and disclosure of confidential and trade secret information or the exploitation of customer relationships and goodwill.

 

 

January 09, 2023

 

Texas Lawmakers Grapple with Still-Soaring Budget Surplus

 

– Focus on Property Tax Relief, Services

Texas Comptroller of Public Accounts Glenn Hegar confirmed this week that the State of Texas’ record budget surplus has grown even more, further expanding lawmakers’ opportunities to deliver greater relief from the state’s high property tax burden and increase funding for core government services.

Hegar delivered an updated revenue estimate one day before Texas state lawmakers were sworn in to commence the 140-day legislative session in which the only task required by the state constitution is to adopt a two-year spending plan.

Lawmakers are looking at a $49.7 billion surplus, including $32.7 billion in greater than anticipated tax revenue in the current two-year budget cycle, $14 billion in the state’s savings account, and $3 billion in unspent federal funds from the American Rescue Plan Act passed by President Joe Biden in 2021.

In his announcement, Hegar noted that while some of the increase is tied to inflation, it’s primarily driven by economic growth. He urged lawmakers to ensure any large investments they’re planning be made toward things that can drive further economic growth, such as improving the “electrical grid, broadband connectivity, port and water infrastructure, salary adjustment for state employees, our teachers and nurses, and development of our skilled trade workforce.”

With respect to taxes, Hegar urged legislators to consider meaningful tax reduction that avoids creating “demands on general revenue that might be difficult to meet in years to come.

Spending Limit, Dueling Priorities

Lawmakers are subject to spending limits they can waive on their own, so how much of the surplus will be invested in Texas this session has yet to be determined. Nervousness about waiving the limits could prompt them to seek voter approval in a statewide referendum.

What is clear, is that there are varying priorities among lawmakers for how to invest these dollars.

Gov. Greg Abbott pledged in his re-election campaign to direct half of the surplus to reducing property taxes. Other leaders are focusing on reducing the business franchise tax burden, and investing in infrastructure needs, education, health and human services and other core government services.

While property taxes are set by local governments, the costliest portion – for local public schools, is directly influenced by how much state funding lawmakers direct to public education.

Recent tax-cutting efforts by state lawmakers has resulted in actual reductions in local property taxes in some of the state’s most populous counties, while the rate of increase for others has declined substantially.

Some proposals seeking support are changes to the state’s property tax system and franchise tax that provide relief to the broadest base of businesses possible without compromising the resources needed to invest in core government functions.

Some proposals being floated so far could meet that test, such as repealing the business personal property tax and implementing appraisal caps for commercial property.

One idea – to eliminate the business franchise tax altogether – would cost the state $5 billion annually, but smaller businesses whose revenue fall below the taxable threshold would not benefit.

Some proposals we should consider would be advancing a suite of Open Government measures, including one to ensure journalists’ access to certain dates of birth records, eyeing proposals that would legalize new gaming enterprises and watching out for measures that would restrict or improperly regulate advertising.

 

 

January 6, 2023

Congress passes SECURE 2.0 Act, making important changes to 401(k)s

Alice Gilman

The last act of the 117th Congress was to pass the Consolidated Appropriations Act, 2023. Tucked not-so-deep into the CAA is the SECURE 2.0 Act of 2022—90+ provisions focused on 401(k) and other retirement plans. SECURE 2.0 builds on what we can now call SECURE 1.0, which was enacted in 2019.

SECURE 2.0 is an expensive piece of legislation. Congress has chosen to pay for it by mandating that plans offering certain 401(k) features, like catch-up contributions, be made on an after-tax, Roth basis.

Every mention of the word “Roth” will require significant adjustments to your payroll system to accommodate after-tax withholding. At a minimum, Payroll, HR and Benefits will need to work together to ensure the following:

• All eligible participants are timely enrolled into an auto-enrollment plan, and the proper amount is withheld and invested prudently, if employees don’t indicate their investment choices
• All qualified part-time employees are enrolled in the plan and pretax deductions are made from their pay
• Determining employees’ wages for catch-up contribution purposes.

Expanding coverage

The basis for withholding, including for auto-enrollment 401(k) plans, is that you can’t miss what you never thought you had. Instead of opting in, employees must opt-out to receive their full pay. And most employees don’t opt out.

Auto-enrollment plans

Auto-enrollment plans have been around for quite some time; SECURE 1.0 allowed but didn’t require plans to auto-enroll new participants.

401(k) plans established after Dec. 29, 2022, must auto-enroll participants once they’re eligible, beginning with the 2025 plan year. Employees are eligible to participate if they work full time, have completed 12 months of service, and are age 21 or older. The initial withholding percentages range from 3% to 10%, with automatic annual increases of 1% per plan year, up to 10%, but not more than 15%. Employees can elect a lower percentage.

Employers in business for fewer than three years, small employers with up to 10 employees, church plans, and governmental plans are excluded from these provisions.

SECURE 2.0 also introduces a new safe harbor 401(k) plan design—a starter 401(k) plan, effective for plan years beginning in 2024. A starter plan accepts only pretax contributions and generally requires all employees to be auto-enrolled. Default pretax contributions range from 3% to 15%, up to the IRA contribution limit. Employees who are age 50 or older can contribute an additional $1,000.

Part-time employees

SECURE 1.0 opened enrollment to long-term part-time employees. For these employees, 401(k) plans must have a dual-eligibility requirement under which they complete either one year of service (with the 1,000-hour rule) or three consecutive years of service, with at least 500 hours of service per year.

For plan years beginning in 2025, SECURE 2.0 reduces the three-year rule to two years. As under current law, these employees aren’t entitled to an employer match.

Fixing mistakes

Auto-enrollment plans may seem to work on autopilot, but mistakes leading to hefty tax penalties can happen. While the IRS has procedures to correct mistakes, SECURE 2.0 goes further and provides a safe harbor for penalty-free corrections of reasonable mistakes. Mistakes must be corrected prior to nine-and-a-half months after the end of the plan year in which they occurred. This provision is effective for errors after Dec. 31, 2023.

Tax credit for start-up costs

Currently, employers with no more than 100 employees during the preceding year may take a tax credit equal to 50% of administrative costs, up to $5,000.

For taxable years beginning in 2023, the credit increases to 100% for employers with up to 50 employees. These employers are also entitled to an additional credit equal to 100% for the first year of their matching contributions, up to a per-employee cap of $1,000. Employees who earn more than $100,000 are excluded from the credit computation. The credit is phased out in increments of 25%, until the fifth year, when it is 0%. Employers with 51 to 100 employees are eligible for a reduced credit.

Student loans

For contributions made for plan years beginning in 2025, employees who are paying back student loans may receive employer-matching contributions, up to the annual limits, less the pretax deductions they’ve already designated. Employees self-certify they’ve been paying back their loans and employers may rely on these certifications.

These provisions are in addition to the IRC § 127 provision allowing employers to repay up to $5,250 in employees’ student loans per year.

Incentives to participate

Employers can’t offer cash incentives to employees to participate in their 401(k) plans.

For plan years beginning in 2023, employers may offer de minimis cash incentives, not paid for with plan assets, such as low-dollar gift cards, to boost participation in the plan. Unless the IRS says otherwise, however, these incentives are fully taxable.

Increasing retirement savings

Employees’ income isn’t limitless and financial pressures may deter them from fully participating in a 401(k) plan. SECURE 2.0 addresses some of these pressures.

Emergencies

Employees experience emergencies all the time. SECURE 2.0 contains four provisions to help employees get through them.

• After-tax Roth emergency savings accounts. Plans may offer to enroll or auto-enroll non-highly compensated employees into 401(k)-linked emergency savings accounts. Accounts must be set up as Roth after-tax accounts. Contributions are limited to 3% of salary, up to $2,500 a year (or a lower amount). Once the cap is reached, additional contributions can be directed into employees’ Roth 401(k) accounts (if they have one) or stopped until the balance falls below the cap. Contributions are treated as elective deferrals for purposes of employer matching contributions. Employers may make matching contributions into the 401(k) portion of the plan. Employees are entitled to one withdrawal a month, and the first four withdrawals are fee-free. Notice provisions apply. For employees who are auto-enrolled, state anti-garnishment laws are overridden. These provisions are effective for plan years beginning in 2024.
• Hardship distributions. Plans may offer employees hardship distributions, but these distributions are subject to the 10% tax on early withdrawals if employees are younger than 59½. Effective for distributions made after Dec. 31, 2023, plans may allow penalty-free distributions for emergency expenses. Maximum annual distribution: $1,000. Employees self-certify that they qualify for a distribution. Only one distribution every three years is permissible if employees don’t pay back their previous distributions.
• Domestic violence distributions. For distributions made after Dec. 31, 2023, plans may permit employees who self-certify they are victims of domestic abuse to withdraw the lesser of $10,000 or 50% of their account. Distributions are penalty-free. Employees can repay their distributions over three years.
• Distributions related to terminal illnesses. Distributions to employees who are diagnosed with a terminal illness and who are expected to die within 84 months are penalty-free. Employees’ physicians must certify the illness and employees must present the certification to the plan administrator prior to taking distributions. This provision is effective for distributions made after Dec. 29, 2022.

Provisions to help older employees

The tax code already targets several provisions to older employees. SECURE 2.0 makes the following changes:

• Employees must begin to take required minimum distributions by the later of when they turn 72 or by April 1 of the year following their retirement. The age for RMDs increases to 73, starting Jan. 1, 2023, for employees who turn 72 after 2022. The age increases again to 75, starting in 2033, for employees who turn 74 after Dec. 31, 2032.
• Employees who are at least 50 years old can make pretax catch-up contributions. For taxable years beginning after Dec. 31, 2024, employees who are between 60–63 years old will be able to increase their catch-up contributions to the greater of $10,000 or 150% more than the regular catch-up amount in 2024. Catch: All catch-up contributions will be required to be made on a Roth, after-tax basis. Exception: Employees earning less than $145,000 during the preceding year may make pretax contributions or opt for Roth treatment.

Roth 401(k) provisions

Taxing 401(k) distributions can deter employees from participating. Contributions into Roth IRAs and 401(k) plans are always after-tax, so there are no taxes due on distributions. It’s a good deal.

There are no RMDs for Roth IRAs prior to the account holder’s death. Roth 401(k)s, however, aren’t quite as generous. For taxable years beginning after Dec. 31, 2023, the pre-death distribution requirement is eliminated for Roth 401(k) plans.

Employers can’t make matching or nonelective contributions into employees’ Roth 401(k) accounts. For contributions made after Dec. 29, 2022, employers may make these contributions on a Roth basis, provided the contributions are fully vested when made.

Simplifying and clarifying the 401(k) plan rules

SECURE 2.0 simplifies some of the 401(k) plan rules.

• Terminating employees. Employers may transfer former employees’ 401(k) accounts into IRAs if employees leave their accounts behind and the balance is between $1,000 and $5,000. For distributions made after Dec. 31, 2023, the mandatory cash-out balance increases to $7,000.
• Locating missing plan participants. The Department of Labor is directed to create a lost-and-found database employees can use to locate old 401(k) assets. Plans will eventually need to provide the database with current and former employees’ names and Social Security numbers. The database must be operational by 2024.
• Furnishing notices. Employers must distribute a battery of notices to employees, even those who don’t participate in the plan. For plan years beginning after Dec. 31, 2022, provided all nonparticipants receive summary plan descriptions, employers need only furnish them with an annual reminder notice of their eligibility to participate and the election deadlines, and any required document they request.
• Rollover forms. Employees who terminate employment can avoid the 20% withholding tax on their distributions by directly rolling over those distributions into another plan or IRA. The IRS is required to simplify and standardize the rollover process by creating sample forms for incoming and outgoing plans to use. The IRS has until Jan. 1, 2025, to complete this task.

 

With Sen. Cruz’s Help, Big Tech Competition Bill Advances

 

– Measure Seeks to Level Playing Field

Major legislation that would level the competitive playing field between news content publishers and Big Tech firms cleared a key hurdle last week thanks in part to Texas Sen. Ted Cruz who reached across party lines to clarify an amendment he had successfully attached to the measure, but which threatened to derail the effort.

The Journalism Competition and Preservation Act, S. 673, would create a temporary antitrust exemption to allow local broadcasters and certain other digital publishers to jointly negotiate with a dominant online platform regarding access to their content.

Cruz worked with chief bill authors Sens. Amy Klobuchar, D-MN, and John Kennedy, R-LA, to reach agreement on changes to his amendment that addressed his concerns while averting political hot button issues.

Thanks to Cruz’s leadership, the measure cleared the Senate Judiciary Committee with a strong 15-7 bipartisan vote, including all Democratic Senators and four Republicans, including Sens. Cruz and Kennedy, as well as Charles Grassley of Iowa and Lindsey Graham of South Carolina.

“Texas broadcasters are grateful for Sen. Cruz’s leadership on this all-important issue that speaks to our ability to effectively compete in a rapidly changing media landscape,” said TAB Chairman Paul Gleiser, owner/operator of ATW Media, LLC in Tyler.

“Sen. Cruz committed to TAB that he would work with the bill authors to try to address our concerns as we work mightily to preserve local community journalism on-air and in print, and he followed through in an admirable and bipartisan fashion.”

Sen. John Cornyn, Texas’ senior senator, also serves on the panel, but did not support the measure.

As revised, the JCPA would:

• Empower eligible digital journalism providers—that is, news publishers with fewer than 1,500 exclusive full-time employees and non-network news broadcasters that engage in standard newsgathering practices—to form joint negotiation entities to collectively negotiate with a covered platform over the terms and conditions of the covered platform’s access to digital news content.
• Require covered platforms—which are online platforms that have at least 50 million U.S.-based users or subscribers and are owned or controlled by a person that has either net annual sales or market capitalization greater than $550 billion or at least 1 billion worldwide monthly active users—to negotiate in good faith with the eligible news organizations.
• Enable non-broadcaster news publishers to demand final-offer arbitration if their joint negotiation with a covered platform fails to result in an agreement after six months.
• Create a limited safe harbor from federal and state antitrust laws for eligible digital journalism providers that allows them to participate in joint negotiations and arbitration and, as part of those negotiations, to jointly withhold their content from a covered platform.
• Prohibit discrimination by a joint negotiation entity or a covered platform against an eligible digital journalism provider based on its size or the view expressed in its content and provide a private right of action for violations of this prohibition.
• Prohibit retaliation by a covered platform against eligible digital journalism providers for participating in joint negotiations or arbitration and provide a private right of action for violations of this prohibition.
• Sunset within eight years. 

 

DECEMBER 2022

December 21, 2022

TEXAS US Congress Members

 

Name	URL	State	District	Party	Terms
Allred, Colin Z. – Representative	https://www.congress.gov/member/colin-allred/A000376	Texas	32	Democratic	House: 2019-Present
Arrington, Jodey C. – Representative	https://www.congress.gov/member/jodey-arrington/A000375	Texas	19	Republican	House: 2017-Present
Babin, Brian – Representative	https://www.congress.gov/member/brian-babin/B001291	Texas	36	Republican	House: 2015-Present
Brady, Kevin – Representative	https://www.congress.gov/member/kevin-brady/B000755	Texas	8	Republican	House: 1997-Present
Burgess, Michael C. – Representative	https://www.congress.gov/member/michael-burgess/B001248	Texas	26	Republican	House: 2003-Present
Carter, John R. – Representative	https://www.congress.gov/member/john-carter/C001051	Texas	31	Republican	House: 2003-Present
Castro, Joaquin – Representative	https://www.congress.gov/member/joaquin-castro/C001091	Texas	20	Democratic	House: 2013-Present
Cloud, Michael – Representative	https://www.congress.gov/member/michael-cloud/C001115	Texas	27	Republican	House: 2018-Present
Cornyn, John – Senator	https://www.congress.gov/member/john-cornyn/C001056	Texas		Republican	Senate: 2002-Present
Crenshaw, Dan – Representative	https://www.congress.gov/member/dan-crenshaw/C001120	Texas	2	Republican	House: 2019-Present
Cruz, Ted – Senator	https://www.congress.gov/member/ted-cruz/C001098	Texas		Republican	Senate: 2013-Present
Cuellar, Henry – Representative	https://www.congress.gov/member/henry-cuellar/C001063	Texas	28	Democratic	House: 2005-Present
Doggett, Lloyd – Representative	https://www.congress.gov/member/lloyd-doggett/D000399	Texas	35	Democratic	House: 1995-Present
Ellzey, Jake – Representative	https://www.congress.gov/member/jake-ellzey/E000071	Texas	6	Republican	House: 2021-Present
Escobar, Veronica – Representative	https://www.congress.gov/member/veronica-escobar/E000299	Texas	16	Democratic	House: 2019-Present
Fallon, Pat – Representative	https://www.congress.gov/member/pat-fallon/F000246	Texas	4	Republican	House: 2021-Present
Fletcher, Lizzie – Representative	https://www.congress.gov/member/lizzie-fletcher/F000468	Texas	7	Democratic	House: 2019-Present
Flores, Mayra – Representative	https://www.congress.gov/member/mayra-flores/F000473	Texas	34	Republican	House: 2022-Present
Garcia, Sylvia R. – Representative	https://www.congress.gov/member/sylvia-garcia/G000587	Texas	29	Democratic	House: 2019-Present
Gohmert, Louie – Representative	https://www.congress.gov/member/louie-gohmert/G000552	Texas	1	Republican	House: 2005-Present
Gonzales, Tony – Representative	https://www.congress.gov/member/tony-gonzales/G000594	Texas	23	Republican	House: 2021-Present
Gonzalez, Vicente – Representative	https://www.congress.gov/member/vicente-gonzalez/G000581	Texas	15	Democratic	House: 2017-Present
Gooden, Lance – Representative	https://www.congress.gov/member/lance-gooden/G000589	Texas	5	Republican	House: 2019-Present
Granger, Kay – Representative	https://www.congress.gov/member/kay-granger/G000377	Texas	12	Republican	House: 1997-Present
Green, Al – Representative	https://www.congress.gov/member/al-green/G000553	Texas	9	Democratic	House: 2005-Present
Jackson Lee, Sheila – Representative	https://www.congress.gov/member/sheila-jackson-lee/J000032	Texas	18	Democratic	House: 1995-Present
Jackson, Ronny – Representative	https://www.congress.gov/member/ronny-jackson/J000304	Texas	13	Republican	House: 2021-Present
Johnson, Eddie Bernice – Representative	https://www.congress.gov/member/eddie-johnson/J000126	Texas	30	Democratic	House: 1993-Present
McCaul, Michael T. – Representative	https://www.congress.gov/member/michael-mccaul/M001157	Texas	10	Republican	House: 2005-Present
Nehls, Troy E. – Representative	https://www.congress.gov/member/troy-nehls/N000026	Texas	22	Republican	House: 2021-Present
Pfluger, August – Representative	https://www.congress.gov/member/august-pfluger/P000048	Texas	11	Republican	House: 2021-Present
Roy, Chip – Representative	https://www.congress.gov/member/chip-roy/R000614	Texas	21	Republican	House: 2019-Present
Sessions, Pete – Representative	https://www.congress.gov/member/pete-sessions/S000250	Texas	17	Republican	House: 1997-2019, 2021-Present
Taylor, Van – Representative	https://www.congress.gov/member/van-taylor/T000479	Texas	3	Republican	House: 2019-Present
Van Duyne, Beth – Representative	https://www.congress.gov/member/beth-van-duyne/V000134	Texas	24	Republican	House: 2021-Present
Veasey, Marc A. – Representative	https://www.congress.gov/member/marc-veasey/V000131	Texas	33	Democratic	House: 2013-Present
Weber, Randy K., Sr. – Representative	https://www.congress.gov/member/randy-weber/W000814	Texas	14	Republican	House: 2013-Present
Williams, Roger – Representative	https://www.congress.gov/member/roger-williams/W000816	Texas	25	Republican	House: 2013-Present

Texas State Senate Representatives

 

District 131 Rep. Allen, Alma A.	District 121 Rep. Allison, Steve	District 103 Rep. Anchía, Rafael	District 56 Rep. Anderson, Charles “Doc”	District 9 Rep. Ashby, Trent	District 18 Rep. Bailes, Ernest
District 3 Rep. Bell, Jr., Cecil	District 4 Rep. Bell, Keith	District 123 Rep. Bernal, Diego M.	District 92 Rep. Bhojani, Salman	District 24 Rep. Bonnen, M.D., Greg	District 113 Rep. Bowers, Rhetta Andrews
District 114 Rep. Bryant, John	District 54 Rep. Buckley, Brad	District 136 Rep. Bucy lll, John H.	District 63 Rep. Bumgarner, Benjamin	District 58 Rep. Burns, DeWayne	District 83 Rep. Burrows, Dustin
District 112 Rep. Button, Angie Chen	District 128 Rep. Cain, Briscoe	District 119 Rep. Campos, Elizabeth “Liz”	District 40 Rep. Canales, Terry	District 98 Rep. Capriglione, Giovanni	District 11 Rep. Clardy, Travis

 

District 46 Rep. Cole, Sheryl	District 95 Rep. Collier, Nicole	District 96 Rep. Cook, David	District 117 Rep. Cortez, Philip	District 82 Rep. Craddick, Tom	District 127 Rep. Cunningham, Charles
District 72 Rep. Darby, Drew	District 111 Rep. Davis, Yvonne	District 7 Rep. Dean, Jay	District 133 Rep. DeAyala, Mano	District 122 Rep. Dorazio, Mark	District 142 Rep. Dutton Jr., Harold V.
District 51 Rep. Flores, Lulu	District 69 Rep. Frank, James	District 61 Rep. Frazier, Frederick	District 38 Rep. Gámez, Erin	District 124 Rep. Garcia, Josey	District 28 Rep. Gates, Gary
District 17 Rep. Gerdes, Stan	District 99 Rep. Geren, Charlie	District 120 Rep. Gervin-Hawkins, Barbara	District 97 Rep. Goldman, Craig	District 104 Rep. González, Jessica	District 75 Rep. González, Mary E

 

District 47 Rep. Goodwin, Vikki	District 41 Rep. Guerra, R.D. “Bobby”	District 31 Rep. Guillen, Ryan	District 126 Rep. Harless, Sam	District 52 Rep. Harris, Caroline	District 8 Rep. Harris, Cody
District 10 Rep. Harrison, Brian	District 57 Rep. Hayes, Richard	District 5 Rep. Hefner, Cole	District 143 Rep. Hernandez, Ana	District 34 Rep. Herrero, Abel	District 49 Rep. Hinojosa, Gina
District 33 Rep. Holland, Justin	District 48 Rep. Howard, Donna	District 138 Rep. Hull, Lacey	District 32 Rep. Hunter, Todd	District 73 Rep. Isaac, Carrie	District 26 Rep. Jetton, Jacey
District 134 Rep. Johnson, Ann	District 139 Rep. Johnson, Jarvis	District 115 Rep. Johnson, Julie	District 147 Rep. Jones, Jolanda “Jo”	District 100 Rep. Jones, Venton	District 12 Rep. Kacal, Kyle

 

District 88 Rep. King, Ken	District 80 Rep. King, Tracy O.	District 85 Rep. Kitzman, Stan	District 91 Rep. Klick, Stephanie	District 44 Rep. Kuempel, John	District 76 Rep. Lalani, M.D., Suleman
District 71 Rep. Lambert, Stan	District 81 Rep. Landgraf, Brooks	District 67 Rep. Leach, Jeff	District 23 Rep. Leo-Wilson, Terri	District 35 Rep. Longoria, Oscar	District 37 Rep. Lopez, Janie
District 125 Rep. Lopez, Ray	District 43 Rep. Lozano, J. M.	District 118 Rep. Lujan, John	District 22 Rep. Manuel, Christian	District 39 Rep. Martinez , Armando “Mando”	District 116 Rep. Martinez Fischer, Trey
District 16 Rep. Metcalf, Will	District 108 Rep. Meyer, Morgan	District 105 Rep. Meza, Terry	District 78 Rep. Moody, Joe	District 145 Rep. Morales, Christina	District 74 Rep. Morales, Eddie
District 148 Rep. Morales Shaw, Penny	District 30 Rep. Morrison, Geanie W.	District 36 Rep. Muñoz, Jr., Sergio	District 53 Rep. Murr, Andrew S.	District 107 Rep. Neave Criado, Victoria	District 89 Rep. Noble, Candy

 

District 130 Rep. Oliverson, M.D., Tom	District 79 Rep. Ordaz, Claudia	District 13 Rep. Orr, Angelia	District 77 Rep. Ortega, Evelina “Lina”	District 106 Rep. Patterson, Jared	District 129 Rep. Paul, Dennis
District 144 Rep. Perez, Mary Ann	District 21 Rep. Phelan, Dade	District 70 Rep. Plesa, Mihaela	District 87 Rep. Price, Four	District 102 Rep. Ramos, Ana-Maria	District 14 Rep. Raney, John
District 42 Rep. Raymond, Richard Peña	District 27 Rep. Reynolds, Ron	District 60 Rep. Rogers, Glenn	District 90 Rep. Romero, Jr., Ramon	District 110 Rep. Rose, Toni	District 135 Rep. Rosenthal, Jon E.
District 6 Rep. Schaefer, Matt	District 93 Rep. Schatzline, Nate	District 132 Rep. Schofield, Mike	District 66 Rep. Shaheen, Matt	District 109 Rep. Sherman Sr., Carl O.	District 55 Rep. Shine, Hugh D.
District 2 Rep. Slaton, Bryan	District 59 Rep. Slawson, Shelby	District 62 Rep. Smith, Reggie	District 86 Rep. Smithee, John T.	District 68 Rep. Spiller, David	District 64 Rep. Stucky, Lynn

 

District 150 Rep. Swanson, Valoree	District 50 Rep. Talarico, James	District 84 Rep. Tepper, Carl H.	District 146 Rep. Thierry, Shawn	District 65 Rep. Thimesch, Kronda	District 29 Rep. Thompson, Ed
District 141 Rep. Thompson, Senfronia	District 94 Rep. Tinderholt, Tony	District 15 Rep. Toth, Steve	District 19 Rep. Troxclair, Ellen	District 101 Rep. Turner, Chris	District 1 Rep. VanDeaver, Gary
District 25 Rep. Vasut, Cody	District 149 Rep. Vo, Hubert	District 140 Rep. Walle, Armando	District 20 Rep. Wilson, Terry M.	District 137 Rep. Wu, Gene	District 45 Rep. Zwiener, Erin

 

 

 

Texas State Senate Members
Bryan Hughes District 1 Bob Hall District 2 Robert Nichols District 3 Brandon Creighton District 4 Charles Schwertner District 5 Carol Alvarado District 6 Paul Bettencourt District 7 Angela Paxton District 8 Kelly Hancock District 9 Beverly Powell District 10 Larry Taylor District 11 Jane Nelson District 12 Borris Miles District 13 Sarah Eckhardt District 14 John Whitmire District 15 Nathan Johnson District 16 Joan Huffman District 17 Lois Kolkhorst District 18 Roland Gutierrez District 19 Juan “Chuy” Hinojosa District 20 Judith Zaffirini District 21 Brian Birdwell District 22 Royce West District 23 Dawn Buckingham District 24 Donna Campbell District 25 José Menéndez District 26 Eddie Lucio, Jr. District 27 Charles Perry District 28 César Blanco District 29 Drew Springer District 30 Kel Seliger District 31

 

December 7, 2022 DOL seeks to define the employee/independent contractor relationship once and for all   The Supreme Court began to develop the test for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act in the 1940s. While the linchpin is the employer’s right to control (and not the exercise of control), the Supreme Court, lower courts and the Department of Labor agree on two things when applying this test: The key is the totality of the circumstances, and no single factor is more important than another. The extent to which the services rendered are an integral part of the employer’s business. The permanency of the relationship between the employer and the worker. The amount of the worker’s investment in facilities and equipment. The nature and degree of control asserted over the worker by the employer. The worker’s opportunity for profit and loss. The amount of initiative, judgment or foresight in open-market competition with others required for the worker’s success. These factors were never codified, until the Trump administration issued regulations in 2021, which the incoming Biden administration froze and then withdrew, subject to litigation.

 

December 7, 2022

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Federal Election Commission Adopts New Rules for Sponsorship Disclaimers for Online Political Advertising – And to Consider Rules for Political Marketing Through Social Media Influencers 

By David Oxenford on December 5, 2022

Last week, the Federal Election Commission (FEC) adopted new disclaimer requirements for internet-based political advertising, including the identification of the ad sponsor.  This decision resolves many of the issues that have been debated at the FEC for over a decade as to what internet content is considered a “public communication” that requires a disclosure of the sponsor of the content – and just what the disclosure should reveal.  We wrote about a 2018 rulemaking soliciting comment on these issues that was just part of the process that led to the vote taken last week.  While the FEC had generally acknowledged that online political ads should have some sponsorship identification, it is only now that the FEC has adopted detailed requirements for this identification.  As discussed below, the proceeding requires disclosures when a sponsor pays an online platform to transmit the political message.  However, the FEC postponed for another day consideration as to whether the disclaimers would be required when the sponsor pays others to promote or widely disseminate the message to platforms that are not paid (e.g., where people are paid by a sponsor to post political messages on social media sites).  These rule changes will impact most media companies with websites and mobile apps, as well as the nationwide streaming services now developing ad supported platforms.

Specifically, the FEC adopted a proposal that would amend its rules to require a disclaimer on those “communications placed for a fee on another person’s website, digital device, application, or advertising platform.”   The FEC also issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication.

The new rules also describe the disclaimers that will be required on internet communications once the new rules become effective.  The FEC rejected proposals to include the “stand by your ad” language required in political advertisements transmitted on TV, radio, and cable.  On these platforms, the stand-by-your-ad provisions require that the candidate identify themselves and state that they approved the message.  The FEC rejected the inclusion of this clause in the mandated disclaimers, finding that, even though very similar audio and video ads are now transmitted online, including by streaming services, the FEC’s statutory authority to require such language only applies to broadcast and cable.

Instead, the general disclaimer rules on disclaimers will be followed.  The FEC summarized the existing rules which include requirements set out below:

• If a candidate, an authorized committee of a candidate, or an agent of either, pays for and authorizes the communication, then the disclaimer must state that the communication “has been paid for by the authorized political committee.”
• If a public communication is paid for by someone else, but is authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must state who paid for the communication and that it is authorized by the candidate, authorized committee of the candidate, or an agent of either.
• If the communication is not authorized by a candidate, an authorized committee of a candidate, or an agent of either, then “the disclaimer must clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication, and that the communication is not authorized by any candidate or candidate’s committee.”
• Every disclaimer “must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity of the person” that paid for the communication.

The FEC also adopted other requirements for disclaimers:

• for such communications with text or graphic components, include the required written disclaimer,
• be of sufficient type size to be clearly readable,
• be displayed with a reasonable degree of color contrast,
• for video ads, be visible for at least 4 seconds,
• For audio with no video, graphic, or text components, be included within the audio.

The decision also discusses exceptions to these requirements where, because of the size of the announcement or other technical limitations, the full disclaimer cannot be added.  These exceptions will apply when the full disclaimer “cannot be provided or would occupy more than 25 percent of the communication due to character or space constraints intrinsic to the advertising product or medium.”  The FEC describes the disclaimer requirements for communications that fit within this exception – an “adapted disclaimer” as “a clear statement that the internet public communication is paid for, and that identifies the person or persons who paid for the internet public communication using their full name or a commonly understood abbreviation or acronym by which the person or persons are known, which is accompanied by: (1) an “indicator” and (2) a “mechanism.” An “indicator” is notice in the ad as to the existence of the full disclaimer information at some other location, and a “mechanism” is a way to get to that information, such as through a link on a textual or graphic ad.

This decision clarifies that, for traditional political advertising on online platforms for federal candidates and elections, sponsorship identification is required.  The Further Notice will seek to clarify the obligations of paid influencers and others as to their disclosure requirements, but it seems safe to assume that some disclosure eventually will be required.

But don’t think that these are the only rules to consider. As we have written before (see, for instance, our articles here and here), states have also been very active in adopting their own rules as to disclosure of sponsors of political advertising, some much broader than the FEC rules adopted last week.  In some cases, the state rules apply only to state candidates and issues.  In other cases, they are not specifically limited.  All of these rules, both state and federal, are very complicated and get into details and nuances not covered in this article.  So, when dealing with these issues (both state and federal) carefully review all the rules and seek guidance from attorneys and other advisors who are familiar with those nuances.

The new FEC rules will become effective after they have been transmitted to Congress for a 30-day review period.  Comments on the Supplemental Further Notice will be due 30 days after the notice is published in the Federal Register.

 

NOVEMBER 2022

 November 7, 2022

In this final (we hope) pre-election TAB Political Update, we have some last-minute poll and other types of information to impart, plus some suggestions on what to look for and what to expect after 7pm as the results start to stream in.

 

ONE LAST GUBERNATORIAL POLL

Claremont McKenna College’s Rose Institute of State and Local Government has a multi-state gubernatorial poll out that appears to be the last poll on the Texas governor’s race we’ll see before election day. 

 

It shows incumbent GOP Gov. Greg Abbott leading his Democratic challenger, former U.S. Rep. Robert (Beto) O’Rourke, 51 percent to 44 percent with 5 percent undecided.  The poll was conducted online between Oct. 11-26 of 817 likely voters by YouGov. The margin of error is +/- 4 percent.

 

The folks at RealClearPolitics haven’t figured this latest poll into their average of Texas gubernatorial polling which as of 11/3 was Abbott +9.2%

 

GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Abbott	O’Rourke	Spread
CMC/Rose Institute/YouGov	B+	10/11-26	817 LV	+/- 4%	51%	44%	Abbott +7
UH Hobby Center/YouGov	B+	10/19-26	1,200 LV	+/- 2.8%	53%	40%	Abbott +13
The Hill/Emerson College	A-	10/17-19	1,000 LV	+/- 3.0%	53%	44%	Abbott +9
Spectrum News/Siena College	A	10/16-19	649 LV	+/- 5.1%	52%	43%	Abbott +9
Univision/Shaw & Co.	—	10/11-18	1,400 RV	+/- 2.6%	46%	42%	Abbott +4
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	54%	43%	Abbott +11
Marist	A	10/3-6	898 LV	+/- 4.8%	52%	44%	Abbott +78

* As graded by FiveThirtyEight

 

LACKLUSTER EARLY VOTING

Early voting for the Nov. 8 general election was down, with 5,491,547 of the state’s record 17,672,143 registered voters casting ballots in person or by mail. 

 

That translates to a 31.07 percent turnout thus far.  Of that total, 5,171,654 cast ballots in person and 319,893 did so by mail.  Mail-in balloting was significantly down from the last two elections.

 

Nearly 40 percent of the state’s registered voters cast early ballots in the 2018 midterm election, and ultimately about 53 percent cast ballots that year.

 

UH political scientist Brandon Rottinghaus told the Austin American-Statesman that both parties were expecting a higher turnout. “Republicans need bigger numbers in rural areas and suburban areas, and Democrats need to have bigger turnout in urban areas,” Rottinghaus said.

 

What’s worrying for Democrats is that urban turnout is lower than it was in 2018, Rottinghaus noted. 

ELECTION NIGHT – THINGS TO WATCH

 

• Do any of the statewide offices fall to the D’S?  Likely not, but there was much GOP political handwringing earlier this year, especially in the A.G.’s race.  The most recent statewide polling indicates that the GOP will retain all statewide offices.

 

• Is there any movement in the Texas U.S. House delegation?  Three seats are in play. The GOP is trying to flip CD 15, CD 28, and CD 34. Until 2021 redistricting, these were blue seats, but each was redrawn to be more competitive with CD 15 drawn to favor a Republican candidate. A special election this past summer saw Republican Mayra Flores win to become the U.S. Representative for CD 34, which is drawn to be a blue seat. Embattled incumbent U.S. Rep. Henry Cuellar, D-Laredo, will try to hang onto his CD 28 seat. The national handicappers mostly call CD 34 a “Toss-Up”, with CD 15 breaking for the GOP and CD 28 breaking for the D’s.  The GOP smells a sweep in the air. “I expect to win” all three, Tom Emmer, the chair of the National Republican Congressional Committee, said in a recent interview. “I absolutely do.”

 

• Is there any movement in the Texas House or Senate? Likely not much due to redistricting, so the GOP should maintain or only slightly increase its current 85-65 Texas House lead and 18-13 Texas Senate lead.

 

• There will be one flipped seat in the Texas Senate, SD 10.  The Democrat dropped out of the race last spring. The question is whether SD 27 will be affected by volatility in South Texas as the GOP tries to flip those congressional seats noted above. 

 

• In the House, there are two South Texas House seats to watch for similar effects, HD 37, and HD 74. These are both blue seats, but the races could be tighter than usual.  

 

• One of the more interesting Texas House races to watch is HD 118, where St. Rep. John Lujan, R-San Antonio, hopes to hang onto the Texas House seat he won in a 2021 special election. He previously won the seat in a 2016 special election only to lose it in the 2018 general election. In fact, he has yet to serve in a regular session of the Texas Legislature. This time he’s getting some serious resources from the GOP.  Will it make the difference?

 

• Will there be any movement in County Judge races? The one to watch is Harris County, where the GOP is hoping to flip the seat. Other urban counties have seen a good deal of activity but not on the level of Harris County. Democrats and Republicans both agree that Tarrant County is important to their long-term futures. Despite to O’Rourke winning the county in 2018 and Biden winning it in 2020, the GOP remains strong there.

 

• Will the state surpass 51 percent turnout? That’s what we saw in the last midterm election in 2018. There was a high-profile race for U.S. Senate that year between U.S. Sen. Ted Cruz, R-Houston, and former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso. Since early voting is down from 2018 levels, it is doubtful that will be an offsetting election day turnout to generate the necessary votes to surpass 51 percent.

 

• Local race outcomes and ballot issues? Depending on where you live, there may be municipal races of note or ballot initiatives. Austin voters have a particularly vigorous mayoral election, while San Marcos voters will decide whether to limit the local enforcement of state marijuana laws. The proposed ordinance would end citations and arrests for possession of up to 4 ounces of marijuana.

 

• How delayed will election results be?  Counties across the state are reporting election worker shortages. Others are also reporting threats and forms of staff intimidation. The State of Texas has election watchers posted in a few urban counties.  Even the DOJ will have poll watchers out in Dallas, Harris and Waller Counties.  It’s definitely not tallying votes as usual this year.

 

• Which way do suburban women voters break in 2022?  Democrats were hoping to win them and independents as a result of the Dobbs SCOTUS decision, but it appears the economy and threat of a recession is the winning issue for the GOP. The Wall Street Journal reported last week its latest poll that showed White suburban women have “significantly shifted” their support from Democrats to the GOP in the remaining days of the 2022 midterm elections thanks to “rising concerns over the economy and inflation.” 

 

• Will younger voters show up in 2022? While there has been an increase in registered voters in the past four years, and demographically they are skewing younger, will they actually show up this year to vote?

 

ELECTION NIGHT RETURN ISSUES

As chair of the Secretary of State’s Elections Advisory Committee. I will be on-site at the Secretary of State’s Office after 7 pm Tuesday night to staff the media helpline (512) 475-2717. You can also reach me on my cell phone, (512) 217-9948. If it’s an issue before 7 pm, call the SOS media office (512) 463-6116.

 

Local election officials must keep the Secretary of State’s office up to date on issues with returns. Your newsroom can check the veracity of what local election tabulation officials are telling you by calling me at the numbers above.

 

Newsrooms should expect delays in returns Tuesday night as jurisdictions across the state are reporting a shortage of election workers which will delay the count process.

 

TAB’S COMPETITIVE POLITICAL RACES

Here’s our list of the competitive statewide, statehouse, and congressional seats in the Nov. 8 general election. Open seats are in purple. Incumbents are highlighted in green.

 

STATEWIDE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
Governor	Statewide	Greg Abbott, R-Austin	Robert (Beto) O’Rourke, D-El Paso
Lt. Gov.	Statewide	Dan Patrick, R-Houston	Mike Collier, D-Houston
Atty. Gen.	Statewide	Ken Paxton, R-McKinney	Rochelle Mercedes Garza, D-Brownsville
Ag. Comm.	Statewide	Sid Miller, R- R-Stephenville	Susan Hays, D-Austin
Land Comm.	Statewide	Dawn Buckingham, R-Lakeway	Jay Kleberg, D-Austin
Comptroller	Statewide	Glenn Hegar, R-Katy	Janet T. Dudding, D-Bryan
RRC	Statewide	Wayne Christian, R-Center	Luke Warford, D-Austin

 

CONGRESSIONAL RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
CD 28		Laredo	Cassy Garcia, R-Laredo	Henry Cuellar, D-Laredo
CD 15		RGV / S. TX	Monica De La Cruz, R-Alamo	Michelle Vallejo, D-Mission
CD 34		RGV / S. TX	Mayra Flores, R-Los Indios	Vicente Gonzalez, D-McAllen

 

TEXAS SENATE RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
SD 27		RGV/S. TX	Adam Hinojosa, R-Corpus Christi	Morgan LaMantia, D-Brownsville

 

TEXAS HOUSE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
HD 70	DFW	Jamee Jolly, R-Plano	Michaela Elizabeth Plesa, D-Dallas
HD 112	DFW	Angie Chen Button, R-Richardson	Elva Curl, D-Dallas
HD 118	San Antonio	John Lujan, R-San Antonio	Frank Ramirez, D-San Antonio
HD 37	South Texas	Janie Lopez, R-San Benito	Luis Villarreal, Jr., D-Harlingen
HD 74	South Texas	Katherine (Kat) Parker, R-Alpine	Eddie Morales, Jr., D-Eagle Pass
HD 54	Waco/T/K	Brad Buckley, R-Salado	Jonathan Hildner, D-Killeen

 

November 3, 2022

Early voting in the Nov. 8 general election will end Friday. This weekend will see statewide candidates for office crisscrossing Texas in one last push to get their parties’ voters to show up at the polls before 7pm on Tuesday night.

 

As we head into the final weekend before Tuesday’s general election, we have some new statewide polling data to report from the UH Hobby Center for Public Affairs. In short, it’s great news for the GOP and troubling news for Democrats. All statewide GOP candidates lead their Democrat opponents by double digits.

 

Speaking of polls, there’s been a lot of hand-wringing this year after U.S. pollsters seriously underestimated GOP votes in 2016 and 2020, leading to some cringeworthy poll results in retrospect. Have they adjusted to be more accurate in 2022?

 

The conventional wisdom is the GOP easily retakes the U.S. House and has a chance to retake the Senate although most call that eventuality a toss-up. The FiveThirtyEight data nerds have a fun read today on the possibility of polling errors in 2022.

 

There’s been another rating change by the national handicappers in one of those South Texas congressional races on TAB’s list of competitive races.

 

We have an important reminder to sales teams and general managers about candidate accessibility this weekend.

 

We still do not have incumbent Agriculture Commissioner Sid Miller’s latest campaign finance numbers to report, but in other TEC news from this week’s required “eight-day out” campaign finance reports, Attorney General Ken Paxton, R-McKinney, failed to disclose campaign donors for the third time this year as required by law. Paxton filed a corrected report later in the week.

 

 

Political Advertisement Buys this Weekend

The South Texas area has the three competitive political contests involving legally qualified federal candidates, but all broadcasters need to be aware of certain FCC regulations that are applicable this weekend.

 

Broadcasters should ensure they have adequate staffing to handle last minute changes or ad buys by these federal candidates as well as equal opportunities requests from all candidates during this coming weekend, Nov. 4-6.   

 

Section 73.1944 of the FCC’s Rules requires radio and television stations that have provided weekend access to any commercial advertiser during the 12 months prior to the election to provide similar access to federal candidates the weekend before the Nov. 8 general election.

 

“A station only needs to offer federal candidates the same kind of weekend services that it has previously offered to commercial advertisers. This means that if a station has provided weekend access only for deleting copy or canceling spots, as opposed to selling and scheduling new spots, the station is only required to provide those same pre-election weekend services for federal candidates,” said Scott Flick of TAB’s FCC legal counsel, Pillsbury Winthrop Shaw Pittman.

“Stations may accept last minute buys from candidates if they choose, but if they do so, they cannot discriminate between competing candidates with regard to providing the same expanded access.” 

 

Similarly, while the rule does not require stations to provide weekend access to a non-federal candidate, if a station does so (since staff is already standing by for federal candidate requests), it needs to provide those same services to that candidate’s competitors.

 

To ensure appropriate weekend access is available to candidates (and to avoid candidate complaints to the FCC), stations should make it clear to anyone who calls the main number, request line, or any listed station phone number how to get in touch with station sales staff. Station staff working on-air should also be apprised of the procedure in case a campaign calls the on-air number.

 

Because this requirement increases the likelihood of last-minute changes, stations should practice careful inventory management so that they can accommodate those spots they are legally obligated to run. Stations must be particularly careful when selling a new schedule this week to a candidate, as the opposing candidate(s) may demand equal opportunity to air spots before Election Day, and the station needs to ensure it has adequate available inventory to accomplish that.

 

Note that because this last example involves an equal opportunity request, that can mean signing contracts and adding spots to the traffic system over the weekend, even if you have not done that in the past year for a commercial advertiser.

 

 

New statewide political race polling

The UH Hobby School of Public Affairs is out with its latest polling involving statewide political races. The GOP should be rejoicing at the results which show all the party’s statewide candidates in double-digit leads over the Democratic candidate for that office. The poll was conducted Oct. 19-26 and utilized 1,200 likely voters. It has a margin of error of +/- 2.8%. Here is what the poll found:

 

• Incumbent Republican Greg Abbott (53%) holds a 13% lead over Democrat Beto O’Rourke (40%), with 4% undecided.

 

• In the race for lieutenant governor, incumbent Republican Dan Patrick (51%) holds a 15% lead over Democrat Mike Collier (36%), with 10% undecided.

 

• In the attorney general race, incumbent Republican Ken Paxton (49%) holds a 12% lead over Democrat Rochelle Garza (37%), with 11% undecided.

 

• In the race for comptroller, incumbent Republican Glenn Hegar (49%) holds a 17% lead over Democrat Janet Dudding (32%), with 16% undecided.

 

• In the open seat land commissioner race, Republican Dawn Buckingham (48%) holds a 16% lead over Democrat Jay Kleberg (32%), with 18% undecided.

 

• In the race for agriculture commissioner, incumbent Republican Sid Miller (49%) holds a 14% lead over Democrat Susan Hays (35%), with 16% undecided.

 

• In the railroad commissioner race, incumbent Republican Wayne Christian (47%) holds a 14% lead over Democrat Luke Warford (33%), with 16% undecided.

 

The report also had some interesting information about voter habit and issues driving GOP and Democratic voters to the polls.

 

• Of the 1200 likely voters polled, 64% of these Texas likely voters intend to vote early, either in-person (54%), by mail (8%), or early but undecided as to in-person or by mail (2%).

 

• One in four (26%) plan to vote on Election Day, while the remaining 10% is split between those who will vote either early or on election day.

 

• Six issues are extremely or very important to the gubernatorial vote decision of more than three out of four likely voters: crime and public safety (85%), inflation (83%), electric grid reliability (81%), government spending and taxes (79%), K-12 public education (79%), and economic growth (76%).

 

• For Abbott voters, the five issues that are extremely or very important are inflation (95%), immigration and border security (95%), crime and public safety (92%), government spending and taxes (89%), and economic growth (83%).

 

• For O’Rourke voters, the five issues that are extremely or very important are voting rights (90%), health care costs (90%), electric grid reliability (88%), abortion (84%), and K-12 public education (83%).

 

Here are the gubernatorial poll results from October. As of today, the RealClearPolitics average of Texas gubernatorial polling is Abbott +9.2%.

 

GOVERNOR

Governor

Poll	Accuracy*	Dates	Sample	M of E	Abbott	O’Rourke	Spread
UH Hobby School/YouGov	B+	10/19-26	1,200 LV	+/- 2.8%	53%	40%	Abbott +13
The Hill/Emerson College	A-	10/17-19	1,000 LV	+/- 3.0%	53%	44%	Abbott +9
Spectrum News/Siena College	A	10/16-19	649 LV	+/- 5.1%	52%	43%	Abbott +9
Univision/Shaw & Co.	—	10/11-18	1,400 RV	+/- 2.6%	46%	42%	Abbott +4
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	54%	43%	Abbott +11
Marist	A	10/3-6	898 LV	+/- 4.8%	52%	44%	Abbott +78

* As graded by FiveThirtyEight   

 

Here are the other statewide office poll results for October. Note that we’re including a poll from September in the RRC race as that race was not polled by the UT Politics Project last month.

 

LT. GOVERNOR

Lt. Governor

Poll	Accuracy*	Dates	Sample	M of E	Patrick	Collier	Spread
UH Hobby School/YouGov	B+	10/19-26	1,200 LV	+/- 2.8%	51%	36%	Patrick +15
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	51%	36%	Patrick +15

 

 

ATTORNEY GENERAL

Attorney General

Poll	Accuracy*	Dates	Sample	M of E	Paxton	Garza	Spread
UH Hobby School/YouGov	B+	10/19-26	1,200 LV	+/- 2.8%	49%	37%	Paxton +12
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	51%	37%	Paxton +14

 

COMPTROLLER

 

Poll	Accuracy*	Dates	Sample	M of E	Hegar	Dudding	Spread
UH Hobby School/YouGov	B+	10/19-26	1,200 LV	+/- 2.8%	49%	32%	Hegar +17
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	47%	35%	Hegar +12

 

LAND COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Buckingham	Kleberg	Spread
UH Hobby School/YouGov	B+	10/19-26	1,200 LV	+/- 2.8%	48%	32%	Buckingham +16
UT/TX Trib/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	47%	36%	Buckingham +11

 

AGRICULTURE COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Miller	Hays	Spread
UH Hobby School/YouGov	B+	10/19-26	1,200 LV	+/- 2.8%	49%	35%	Miller +14
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	51%	39%	Miller +12

 

RAILROAD COMMISSIONER

 

Poll

Accuracy*

Dates

Sample

M of E

Christian

Warford

Spread

UH Hobby School/YouGov

B+

10/19-26

1,200 LV

+/- 2.8%

47%

33%

Christian +14

TEGNA/TX Hispanic Pol. Found.

—

9/6-15

1,172 LV

+/- 2.9%

44%

37%

Christian +7

 

 

NATIONAL HANDICAPPER DOWNGRADES A D’S CHANCEs IN South texas Congressional RACE

Only one update to report this week in national handicappers’ ratings of competitive Texas congressional races. The folks at 270 to Win have moved their rating of the CD 28 in South Texas to a more competitive level, “Tilt D.” Next stop would be “Toss Up.” It’s not a surprising change as South Texas is the volatile political hot spot of Texas this year.

 

Updated Nov 2 (Governor), Nov 2 (U.S. House)   

270 to Win			House	Governor
RATING STRUCTURE	Safe D, Likely D, Lean D, Tilt D, Toss Up, Tilt R, Lean R, Likely R, Safe R
CD 15	Open Seat	Lean R
CD 28	Cuellar	Tilt D (Was “Lean D”)
CD 34	Flores	Toss Up
Governor	Abbott	Likely R

 

 

TAB’S COMPETITIVE POLITICAL RACES

The GOP appears to have a lock on the statewide races with most polling this fall indicating leads of five percentage points or better in all contests. There will be a handful of competitive congressional and statehouse districts. The 2022 congressional and statehouse hotspot is South Texas.

 

Here’s our list of the competitive statewide, statehouse, and congressional seats in the Nov. 8 general election. Open seats are in purple. Incumbents are highlighted in green.

 

Governor	Statewide	Greg Abbott, R-Austin	Robert (Beto) O’Rourke, D-El Paso
Lt. Gov.	Statewide	Dan Patrick, R-Houston	Mike Collier, D-Houston
Atty. Gen.	Statewide	Ken Paxton, R-McKinney	Rochelle Mercedes Garza, D-Brownsville
Ag. Comm.	Statewide	Sid Miller, R- R-Stephenville	Susan Hays, D-Austin
Land Comm.	Statewide	Dawn Buckingham, R-Lakeway	Jay Kleberg, D-Austin
Comptroller	Statewide	Glenn Hegar, R-Katy	Janet T. Dudding, D-Bryan
RRC	Statewide	Wayne Christian, R-Center	Luke Warford, D-Austin

 

CONGRESSIONAL RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
CD 28		Laredo	Cassy Garcia, R-Laredo	Henry Cuellar, D-Laredo
CD 15		RGV / S. TX	Monica De La Cruz, R-Alamo	Michelle Vallejo, D-Mission
CD 34		RGV / S. TX	Mayra Flores, R-Los Indios	Vicente Gonzalez, D-McAllen

 

TEXAS SENATE RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
SD 27		RGV/S. TX	Adam Hinojosa, R-Corpus Christi	Morgan LaMantia, D-Brownsville

 

TEXAS HOUSE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
HD 70	DFW	Jamee Jolly, R-Plano	Michaela Elizabeth Plesa, D-Dallas
HD 112	DFW	Angie Chen Button, R-Richardson	Elva Curl, D-Dallas
HD 118	San Antonio	John Lujan, R-San Antonio	Frank Ramirez, D-San Antonio
HD 37	South Texas	Janie Lopez, R-San Benito	Luis Villarreal, Jr., D-Harlingen
HD 74	South Texas	Katherine (Kat) Parker, R-Alpine	Eddie Morales, Jr., D-Eagle Pass
HD 54	Waco/T/K	Brad Buckley, R-Salado	Jonathan Hildner, D-Killeen

 

 

remaining 2022 political dates of note

Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

November 1, 2022

With the Nov. 8 general election just one week away, it is looking increasingly bleak for Democrats’ prospects of flipping a single statewide office or picking up seats in the Texas statehouse. In fact, the trick for the D’s this election will be to hang on to what they currently have or are designed to have through redistricting.

 Said UT political scientist Jim Henson on Monday, “Polling and voting data suggest that as of early October, there are no apparent signs of a significant disruption to the status quo in electoral trends in the state, and signs of shifts in a more typical direction compared to 2018, which took place in a very different electoral environment. While the statewide polling shows the more or less usual amount of variance in statewide trial ballots (which allows observers with axes to grind to cherry pick results to fit whatever point they are hacking at), neither those results nor, more importantly, the contextual data suggest major tectonic shifts in the political system.”

 For the D’s, it’s a two-fold problem.  Motivating issues and higher voter turnout.

 Despite some significant issues available for use by the D’s (electric grid failure, SCOTUS abortion decision, continued gun violence in schools, etc.), none of it appears to be moving the needle for team blue. Early voting suggests that Texas voters aren’t as motivated as they were in 2018, the last mid-term election that also saw a marquee U.S. Senate race.  Voter turnout in the most populous counties is lagging 2018, the last mid-term election – not good news for the D’s. Democrats have also been hoping that the almost 2 million new voters added since 2018 will break their way, but they’ll have to show up to vote first. 

 

Meanwhile the GOP is utilizing the albatross of a high inflation economy, immigration, and crime to sink the D’s hopes and motivate the GOP base and independents to break Republicans’ way. The GOP may very well pick up more than one congressional seat this election in South Texas and may make other headway in the statehouse as well.

 The GOP is also encouraging its base to not let up off the gas now or on Nov. 8. Lt. Gov. Dan Patrick, R-Houston, appeared on TAB member station KFYO-AM Lubbock’s Chad Hasty show this week and told Hasty’s audience that he and Abbott are “not way ahead.”  He went on to say that polling he trusts show both contests as single digit races in the 5-7 percentage point margins. For the most part, it hasn’t been less than that all year long.

 In this issue of the TAB Political Update email, we have the latest campaign finance report information for the statewide and statehouse races. That’s below for your consumption.  But first, a couple of quick bullet points on random topics.

 

• This is the time of election season when “cease and desist” letters from one campaign’s lawyers go out to radio and TV stations claim their opponents’ ads are misleading or false and ask for an ad take down. Always consult your station counsel in such instances. Because of federal regulations, broadcasters are not liable for the content of ads placed by a legally qualified candidate or their representative. Broadcasters ARE liable, however, for the content of ads placed by third-party groups.

 

• Expect delays in the Nov. 8 returns. Many counties are reporting poll worker shortages in the wake of threats and other security issues. That could hamper the election return counts.

 

• Add to that mix is the fact that mail-in ballot numbers are significantly down from previous elections. That means higher day of voting numbers. What’s behind the low mail-in ballot rates?  One possible factor is the influence of former President Donald J. Trump. “Prior to 2018, voting by mail was really the bread and butter for Republican candidates,” said GOP strategist Derek Ryan to the Houston Chronicle. “And then (Trump) started discussing how potentially unsafe voting by mail could be, and I think that message has resonated with the Republican base.”

 

• Don’t forget that the bill filing for the 2023 Texas Legislature begins Monday, Nov. 14. The openiing day of bill filing always brings a mix of serious proposals as well as the absurd. There’s always a story to be had.

 

  

LATEST STATE CAMPAIGN FINANCES NUMBERS

The latest state campaign finance report information was due at the Texas Ethics Commission on Monday. We have that information below. If you want to check the numbers for a local statehouse race not on our list, here’s the link to the TEC search page.

 

Statewide Race Financials

 

Governor

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Greg Abbott, R-Austin (I)	$8,816,943	$20,797,359	$3,725,773
Robert (Beto) O’Rourke, D-El Paso	$10,480,462	$24,399,901	$4,253,607
NOTES: Incumbent Texas Gov. Greg Abbott, R-Austin, was outraised and outspent by his D challenger in the most recent reporting period. It’s the third reporting period that Abbott has been outraised by O’Rourke. For the second time in the gubernatorial campaign, O’Rourke leads (only slightly) in the cash on hand war chest. This race has shattered fundraising records in Texas, with more than $200 million combined raised during the campaign.

 

Lt. Governor

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Lt. Gov. Dan Patrick, R-Houston (I)	$3,276,270	$5,073,569	$16,544,864
Mike Collier, D-Kingwood	$712,581	$1,510,433	$128,274
NOTES: Incumbent Lt. Gov. Dan Patrick, R-Houston, holds the significant cash on hand advantage as this race moves toward the Nov. 8 general election. He also outraised and outspent Democrat Mike Collier in this most recent report. Last time spending was 12 to 1, this time it’s about 3.5 to 1, and once again, much of it in advertising.   In our last report on the numbers, Texas political scientists interviewed by the Dallas Morning News said the advertising buys were significant. “It certainly suggests that there’s been a panic in the Patrick camp,” said UH political scientist Brandon Rottinghaus at the time. SMU political scientist Matthew Wilson agreed said it showed Patrick taking Collier more seriously in 2022 than he did in 2018, by using so-called “culture war” issues to rile up the GOP base.

 

Attorney General

 

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Ken Paxton, R-McKinney (I)	$2,351,968	$4,948,002	$2,905,733
Rochelle Mercedes Garza, D-Brownsville	$1,095,539	$2,267,128	$285,050
NOTES: Incumbent Texas A.G. Ken Paxton, R-McKinney, outraised, outspent, and has a significant cash on hand advantage over his Democratic opponent heading into next Tuesday.

 

Agriculture Commissioner

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Sid Miller, R-Stephenville	Not	Yet	Available
Susan Hays, D-Austin	$77,578	$114,028	$32,330
NOTES: Without Miller’s numbers, it’s hard to say where we are in the most recent reporting period, but in the last two reports, Democrat Susan Hays outraised and outspent incumbent Agriculture Commissioner Sid Miller, R-Stephenville, while he held the cash on hand advantage.

 

Land Commissioner

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Dawn Buckingham, R-Lakeway	$581,198	$695,893	$501,481
Jay Kleberg, D-Austin	$625,893	$1,383,724	$127,648
NOTES: St. Sen. Dawn Buckingham, R-Lakeway, was outraised, outspent, but leads in cash on hand to political novice Jay Kleberg, a scion of the King Ranch family. Kleberg also outraised and outspent her in the last two reports.

 

Comptroller

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Glenn Hegar, R-Katy (I)	$363,965	$238,765	$8,714,938
Janet T. Dudding, D-Bryan	$35,431	$45,138	$18,667
NOTES: Incumbent Texas Comptroller Glenn Hegar, R-Katy, outraised, outspent and retains the cash on hand advantage over his Democratic rival, Janet T. Dudding of Bryan.

 

Railroad Commissioner

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Wayne Christian, R-Center (I)	$88,442	$21,110	$312,241
Luke Warford, D-Austin	$201,545	$308,533	$206,498
NOTES: Incumbent RRC Chairman Wayne Christian, R-Center, was outraised and outspent by his Democratic rival Luke Warford of Austin, for the second report in a row. Christian holds the cash on hand advantage heading into next week.

 

 

Statehouse Race Financials

 

DFW – HD 70   OPEN SEAT

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Michaela Elizabeth Plesa, D-Dallas	$221,144	$120,310	$71,616
Jamee Jolly, R-Plano	$1,410,687	$79,567	$164,616
NOTES: Jolly outraised and outspent his Democratic opponent Plesa in this battle for an open DFW Texas House seat. It was redraw in 2021 redistricting to favor Democrats, but Jolly has raised and spent huge sums to see that it becomes red.

 

DFW – HD 112

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Angie Chen Button, R-Richardson (I)	$426,531	$451,730	$434,664
Elva Curl, D-Dallas	$77,100	$80,698	$10,656
NOTES: Incumbent St. Rep. Angie Chen Button, R-Richardson, hopes to pull off another win in November after several close scrapes in 2016, 2018, and 2020. Her district was redrawn to her advantage, and she’s led in all three categories in the past three reports.

 

San Antonio – HD 118

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

John Lujan, R-San Antonio (I)	$1,156,171	$139,548	$291,578
Frank Ramirez, D-San Antonio	$239,370	$126,444	$43,385
NOTES: Incumbent St. Rep. John Lujan, R-San Antonio, will try to hang onto the D-leaning seat he won in an oddly timed special election. The GOP, and Lujan in particular, has a track record of winning such contests in the San Antonio area, only for the Ds to regain the lost seat in a November general election. The GOP won’t let this one go for lack of funds. Lujan once again leads in all three categories.

 

South Texas – SD 27   OPEN SEAT

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Morgan Lamantia, D-Brownsville	$136,434	$629,541	$199,054
Adam Hinojosa, R-Corpus Christi	$662,123	$218,061	$39,019
NOTES: Lamantia battled three challengers to win the D’s nomination to succeed retiring St. Sen. Eddie Lucio, Jr., D-Brownsville. She was outraised in the latest period by GOP challenger Adam Hinojosa of Corpus Christi. Lamantia, however, has outspent Hinojosa by a 3 to 1 margin in her effort to win this Texas Senate seat. In the previous report, she had outspent Hinojosa by a 12 to 1 margin.

 

South Texas – HD 37   OPEN SEAT

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Janie Lopez, R-San Benito	$735,079	$66,960	$89,101
Luis Villarreal, Jr., D-Harlingen	$57,157	$53,837	$7,681
NOTES: The GOP has ramped up its efforts to flip this seat and other statehouse and congressional seats in the area. Lopez’s D challenger, Villarreal, has shown anemic fundraising and spending to win this seat which is drawn to be a blue seat.

 

South Texas – HD 74

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Eddie Morales, Jr., D-Eagle Pass	$64,930	$67,808	$126,775
Katherine (Kat) Parker, R-Alpine	$669,492	$32,737	$32,844
NOTES: This is the race we added to our list last week. Incumbent Democrat Eddie Morales Jr. of Eagle Pass should win it, but there’s a lot of volatility in the region this election year because of GOP efforts to flip nearby Democrat-held statehouse and congressional seats. This race could be closer than normal because of it. HD 74 was redrawn in 2021 redistricting to be a +10 percent Democratic district. Incumbent Morales had outraised and outspent Parker by a wide margin thus far, but in the new report, she showed a serious influx of cash.

 

Waco / Temple / Killeen – HD 54

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Brad Buckley, R-Salado (I)	$319,179	$112,157	$217,423
Jonathan Hildner, D-Killeen	$46,697	$26,996	$18,863
NOTES: Incumbent St. Rep. Brad Buckley, R-Salado, will try to hang onto this seat which has been redrawn to be a little more competitive than it was in the last decade. In the most recent reporting period, he outraised and outspent his Democratic opponent, and maintains the cash on hand advantage.

 

 

remaining 2022 and 2023 political dates of note

Here are the remaining 2022 political dates of note and first glance ahead at 2023.

 

Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date
Monday, Nov. 14	Bill filing opens for 88th Texas Legislature
Tuesday, Jan. 10, 2023	88th Texas Legislature opens
Tuesday, Jan. 31, 2023	TAB Legislative Day event in Austin
Tuesday, March 7, 2023	FCC Political Window opens for May 6 Municipal/School Board Elections
Friday, March 10, 2023	60-day deadline for bill filling in 88th Texas Legislature
Saturday, May 6, 2023	Uniform Election Date – Municipal/School Board Elections
Monday, May 29, 2023	Sine die, 88th Texas Legislature
Friday, Sept. 8, 2023	FCC political window opens for Nov. 7 Constitutional Amendment and General Election (NOTE: some cities use the date for municipal elections.)
Tuesday, Nov. 7, 2023	Constitutional Amendment and General Election

 

OCTOBER 2022

 

October 24, 2022

Texas Attorney General Ken Paxton has sued Google, claiming the company’s broad application of facial recognition technology in Google Photos, along with voice recognition technology in its home products, is a violation of the state’s Capture or Use of Biometric Identifier Act. “All across the state, everyday Texans have become unwitting cash cows being milked by Google for profits,” reads the complaint. Responded Google, “AG Paxton is once again mischaracterizing our products in another breathless lawsuit. We will set the record straight in court.”

 

Twitter is asking a judge to toss out a class-action complaint accusing the company of asking for users’ contact information for security purposes then using the data for ad targeting. Twitter argues that its internal use of contact information was consistent with statements in its privacy policy, and says the Lauren Price, the woman who brought the case, can’t establish that she was injured by Twitter’s alleged use of her contact information. “Twitter did not sell – or even disclose – her information to advertisers, and there is no allegation in plaintiff’s complaint … that Twitter sold account holder information to anyone. Nor could there be,” wrote Twitter in documents filed with the U.S. District Court judge. “The complaint should be dismissed.”

October 21,2022

We have some new UT poll results for statewide candidates and the parties to report today. It’s good news for the GOP and bad news for the Democrats.

 

The CD 34 race in South Texas continues to make news amongst the national handicappers. We noted another handicapper downgrading the D’s chances of hanging on to the seat earlier this in addition to several that had done so last week.

 

Sabato’s Crystal Ball notes that if CD 34 flips in this election, it will be the “bluest of the 59 districts that have seen outside House spending,” meaning third party money being spent to flip a targeted congressional seat by either party. Under new district lines, Biden would have won the district by 15.5 percentage points.

 

Said Sabato, “At this point, Republicans winning this district wouldn’t feel much like a big upset at all.” That’s music to the ears of incumbent U.S. Rep. Mayra Flores, R-Los Indios, who won a special election earlier this year to take possession of the seat. Her task now is to hang onto it and deny CD 15 U.S. Rep. Vicente Gonzalez, D-Brownsville, the job even after he was drawn into CD 34 during 2021 redistricting. That seemed like a tall order when we started the year. Now, not so much.

 

Early voting for the Nov. 8 general election begins Monday, Oct. 24, and runs through Friday, Nov. 4.

 

Assignments editors and political reporters take note, bill filing for the 88th Texas Legislature begins three weeks from Monday on Nov. 14. That first day of bill filing sees hundreds of measures unleashed on the public, some of them serious, and others that are just outrageous by design.

 

One last note on the upcoming legislative session.  It is a mere 81 days away and opens on Tuesday, January 10, 2023.

 

LATEST UT POLL FOR STATEWIDE CANDIDATES

The latest University of Texas/Texas Politics Project poll is out today on statewide races and shows all the GOP statewide candidates leading their Democratic party challengers by margins of at least 10 points or more. The internet-based poll surveyed 1,200 self-declared registered voters from October 7-17 and has a margin of error of +/- 2.83.

 

Republican voters say immigration/border security is the most important issue area informing their vote. Democratic voters’ attention is divided among a list of several issues, topped by abortion.

 

In the key statewide race matchups, the poll found the following:

 

• Incumbent Gov. Greg Abbott, R-Austin, led former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, in the gubernatorial race,54 percent to 43 percent.

 

• Incumbent Lt. Gov. Dan Patrick, R-Houston led his fellow Houstonian and Democratic challenger Mike Collier, 51 percent to 36 percent. It’s a rematch of the 2018 Lt. Gov. race.

 

• Incumbent Attorney General Ken Paxton, R-McKinney, led Rochelle Garza, D-Brownsville, 51 percent to 37 percent. It’s a stark contrast from other polling this year that has shown the gap between the two at five percentage points or less. 

 

• Incumbent Comptroller of Public Accounts Glenn Hegar, R-Katy, led CPA Janet Dudding, D-Bryan,  47 percent to 35 percent.

 

• Incumbent Agriculture Commissioner Sid Miller, R-Stephenville, led Susan Hayes, D-Austin, 51 percent to 39 percent.

• In the lone open seat statewide race, that of Land Commissioner, St. Sen. Dawn Buckingham, R-Lakeway, led Jay Kelberg, D-Austin, 47 percent to 36 percent.

 

• Surprisingly, the poll did not quiz participants about the Railroad Commissioner race between incumbent Wayne Christian, R-Center and Luke Warford, D-Austin.

 

• In generic ballots for the U.S. House of Representatives and the Texas statehouse, the GOP lead 53 percent to 44 percent in the generic ballot for the U.S. House of Representatives, and about the same for the Texas legislature, 53 percent to 42 percent.

 

• You can read the poll overview here.

 

POLLING RESULTS FOR STATEWIDE RACES THIS YEAR

We’ve added today’s poll release numbers to our table of this year’s results. As of today, the RealClearPolitics average of gubernatorial polling this year shows Abbott ahead of O’Rourke by 8.7 percentage points.

 

Poll accuracy is as graded by the data nerds at FiveThirtyEight.

 

GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Abbott	O’Rourke	Spread
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	54%	43%	Abbott +11
Marist	A	10/3-6	898 LV	+/- 4.8%	52%	44%	Abbott +78
Quinnipiac	A-	9/22-26	1,327 LV	+/- 2.7%	53%	46%	Abbott +7
The Hill/Emerson College	A-	9/20-22	1,000 LV	+/- 3.02%	50%	42%	Abbott +8
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	51%	44%	Abbott +7
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	47%	38%	Abbott +9
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	50%	43%	Abbott +7
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	45%	40%	Abbott +5
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	49%	42%	Abbott +7
UT Tyler/DMN	B/C	8/1-7	1,384 RV	+/- 2.6%	46%	39%	Abbott +7
UH Hobby Center/YouGov	B+	6/27-7/7	1,169 RV	+/- 2.9%	49%	44%	Abbott +5
UT/TX Tribune/ TX Politics Project	B+	6/16-24	1,200 RV	+/- 2.89%	45%	39%	Abbott +6
CBS News/YouGov	B+	6/22-27	1,075 adults	+/- 4.7%	49%	41%	Abbott +8
Quinnipiac	A-	6/9-13	1,257 RV	+/- 2.8%	48%	43%	Abbott +5
Blueprint Polling	—	6/8-10	603 LV	+/- 3.99%	56%	37%	Abbott +18
UT Tyler/DMN	B/C	5/2-10	1,232 RV	+/- 2.8%	46%	39%	Abbott +7
UT/TX Tribune/YouGov	B+	4/14-22	1,200 RV	+/- 2.83%	48%	37%	Abbott +11
Rice U/TX Hispanic Pol. Foundation	—	3/18-28	1,139 LV	+/- 3.9%	50%	42%	Abbott +8
Texas Lyceum	—	3/11-20	926 RV	+/- 2.83%	42%	40%	Abbott +2
Emerson College /Nexstar/Hill	A-	2/21-22	1,000 LV	+/- 4.2%	52%	45%	Abbott +7
UT Tyler/DMN	B/C	2/8-15	1,188 RV	+/- 2.8%	45%	38%	Abbott +7
Climate Nexus	—	2/1-9	933 RV	+/- 3.3%	45%	40%	Abbott +5
UT/TX Tribune/YouGov	B+	1/28-2/7	1,200 RV	+/- 2.83%	47%	37%	Abbott +10

 

LT. GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Patrick	Collier	Spread
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	51%	36%	Patrick +15
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	48%	42%	Patrick +6
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	39%	28%	Patrick +11
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	49%	40%	Patrick +9
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	39%	32%	Patrick +7
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	49%	43%	Patrick +6

 

ATTORNEY GENERAL

 

Poll	Accuracy*	Dates	Sample	M of E	Paxton	Garza	Spread
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	51%	37%	Paxton +14
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	47%	42%	Paxton +5
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	37%	30%	Paxton +7
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	47%	42%	Paxton +5
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	38%	33%	Paxton +5
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	45%	42%	Paxton +3

 

COMPTROLLER

 

Poll	Accuracy*	Dates	Sample	M of E	Hegar	Dudding	Spread
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	47%	35%	Hegar +12
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	46%	38%	Hegar +8

 

LAND COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Buckingham	Kleberg	Spread
UT/TX Trib/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	47%	36%	Buckingham +11
TEGNA/TX Hispanic Pol. Found.	—	9/6-15	1,172 LV	+/- 2.9%	46%	38%	Buckingham +8

 

AGRICULTURE COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Miller	Hays	Spread
UT/TX Tribune/ TX Politics Project	B+	10/7-17	1,200 RV	+/- 2.83%	51%	39%	Miller +12
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	48%	42%	Miller +7

 

RAILROAD COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Christian	Warford	Spread
TEGNA/TX Hispanic Pol. Found.	—	9/6-15	1,172 LV	+/- 2.9%	44%	37%	Christian +7

 

TAB’S COMPETITIVE POLITICAL RACES

Most veteran political watchers are saying the statewide races are the GOP’s to lose. There will be a handful of competitive congressional and statehouse districts. The 2022 congressional and statehouse hotspot will be South Texas.

 

Here’s our list of the competitive statewide, statehouse, and congressional seats in the Nov. 8 general election.  Open seats are in purple. Incumbents are highlighted in green.

 

STATEWIDE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
Governor	Statewide	Greg Abbott, R-Austin	Robert (Beto) O’Rourke, D-El Paso
Lt. Gov.	Statewide	Dan Patrick, R-Houston	Mike Collier, D-Houston
Atty. Gen.	Statewide	Ken Paxton, R-McKinney	Rochelle Mercedes Garza, D-Brownsville
Ag. Comm.	Statewide	Sid Miller, R-Stephenville	Susan Hays, D-Austin
Land Comm.	Statewide	Dawn Buckingham, R-Lakeway	Jay Kleberg, D-Austin
Comptroller	Statewide	Glenn Hegar, R-Katy	Janet T. Dudding, D-Bryan
RRC	Statewide	Wayne Christian, R-Center	Luke Warford, D-Austin

 

CONGRESSIONAL RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
CD 28		Laredo	Cassy Garcia, R-Laredo	Henry Cuellar, D-Laredo
CD 15		RGV / S. TX	Monica De La Cruz, R-Alamo	Michelle Vallejo, D-Mission
CD 34		RGV / S. TX	Mayra Flores, R-Los Indios	Vicente Gonzalez, D-McAllen

 

TEXAS SENATE RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
SD 27		RGV/S. TX	Adam Hinojosa, R-Corpus Christi	Morgan LaMantia, D-Brownsville

 

TEXAS HOUSE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
HD 70	DFW	Jamee Jolly, R-Plano	Michaela Elizabeth Plesa, D-Dallas
HD 112	DFW	Angie Chen Button, R-Richardson	Elva Curl, D-Dallas
HD 134	Houston	Ryan McConnico, R-Houston	Ann Johnson, D-Houston
HD 37	RGV	Janie Lopez, R-San Benito	Luis Villarreal, Jr., D-Harlingen
HD 118	San Antonio	John Lujan, R-San Antonio	Frank Ramirez, D-San Antonio
HD 54	Waco/T/K	Brad Buckley, R-Salado	Jonathan Hildner, D-Killeen

 

remaining 2022 political dates of note

Monday, Oct. 24	Early voting begins for Nov. 8 General Election
Thursday, Oct. 27	Federal candidates’ Pre-General Election Report due to Federal Elections Comm.
Friday, Oct. 28	Mail ballot application deadline
Monday, Oct. 31	State candidates’ 8-Day-Out Report due to Texas Ethics Commission
Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

 

October 19,2022

Washington CNN Business — 

 

A federal appeals court has agreed to suspend enforcement of Texas’ social media law restricting content moderation, in the face of a looming request by tech industry groups for the Supreme Court to review the case.

In an order on Wednesday, the Fifth Circuit Court of Appeals granted a stay of its earlier mandate that had paved the way for the Texas law, known as HB 20, to take effect.

Texas has declared open season on Facebook, Twitter and YouTube with censorship law

HB 20 aims to expose social media platforms including Meta, YouTube and Twitter to new private lawsuits, as well as suits by the state’s attorney general, over the companies’ decisions to remove or reduce the visibility of user content they deem objectionable.

The law is viewed as a challenge to decades of First Amendment precedent, which holds the government may not compel private entities to host speech.

In a filing leading up to Wednesday’s order, the technology groups challenging the Texas law said they planned to ask for the Supreme Court to rule on HB 20, and that Texas did not oppose the motion for a stay.

The Supreme Court has already indicated it is open to regulating social media platforms, agreeing this month to hear two cases that could indirectly narrow the scope of the tech industry’s all-important liability shield, Section 230 of the Communications Decency Act.

Some justices, including conservatives Clarence Thomas and Samuel Alito, have explicitly cited the role and power of social media platforms as reasons the Court should step in.

Last month, Florida’s attorney general called on the Supreme Court to review a social media law in that state that is similar to Texas’ legislation. The Eleventh Circuit Court of Appeals had earlier blocked Florida’s law, saying it was likely unconstitutional.

That finding created a split with the Fifth Circuit’s decision to uphold Texas’ law, making it even more likely for the Supreme Court to take up the matter.

 

October 18,2022

THE COOKIE

In the cookiepocolypse, marketers are suffering through an ‘identity crisis.’ For browsers like Chrome, Salesforce’s Martin Kihn called this “the longest death scene in history,” with other platforms like Safari in the grave. The deprecation of the default proxy for identity is under construction, soon to be replaced by the traditional form of connection: humans IRL. It’s all contingent on how the right technology can enable the best customer experience with authentication, value awareness and consent.

 

Rich Sobel, co-founder of Clean Room Primer Group, and founder and CEO of Marcato Solutions, said, “Despite all the technology, all the data, all of the algorithms and data science, advertising is still a communications industry.” On the value of in-person connection, he observed this sometimes “allows for creative, ad hoc ideation that leads to better work.”

 

October 17, 2022

The latest round of campaign finance reports, this time for congressional races, were due at the Federal Election Commission this past weekend. Political Update, we have the numbers from those three South Texas seats that are on our competitive race list. These are the congressional seats the GOP has targeted to flip.

 

We also have some continued bad news for the Democratic candidate in one of those contests. In short, October has been a bad month for current CD 15 U.S. Rep. Vicente Gonzalez, D-Brownsville.

 

ANOTHER NATIONAL HANDICAPPER DOWNGRADES D’S CHANCEs IN CD 34 ELECTION

South Texas’ CD 34 was drawn as a “safe” D seat in Texas’ GOP-led 2021 redistricting. This is a district that favored Biden over Trump by 4 percent in 2020. Under the new district lines, Biden would have prevailed by 15.5 percent.

The seat was considered safer for a Democrat than CD 15, so current CD 15 U.S. Rep. Vicente Gonzalez, D-Brownsville, chose to run for CD 34 instead.

 

Things started to go bad for Democrats over the summer when Mayra Flores, R-Los Indios, won a special election to serve the remainder of the term left behind by exiting U.S. Rep. Filemon Vela, D-Brownsville.

 

Gonzalez chose not to run in the special election as he would have had to give up his current seat. A series of gaffes by Gonzalez since then have not helped. Flores has outraised Gonzalez throughout the year. More on that below.

 

In our Oct. 5 email, we reported that five of the national political race handicappers had downgraded Gonzalez’s chances of taking back the seat in November. Now there’s a sixth.  

 

The political junkies at 270 to Win have downgraded the CD 34 race to its lowest rating favoring a Democrat, “Tilt D”. Next stop would be Toss-Up. Four of the five handicappers we cited earlier this month have already moved the CD 34 contest into the “Toss Up” category. The sure thing that Democrats were counting on in South Texas is looking less sure every day. 

 

Updated Oct 13 (Governor), Oct 13 (U.S. House)   

270 to Win			House	Governor
RATING STRUCTURE	Safe D, Likely D, Lean D, Tilt D, Toss Up, Tilt R, Lean R, Likely R, Safe R
CD 15	Open Seat	Lean R
CD 28	Cuellar	Lean D
CD 34	Flores	Tilt D (Was “Lean D”)
Governor	Abbott	Likely R

 

CONGRESSIONAL CAMPAIGN FINANCE REPORT UPDATE

We’ve collected the campaign finance numbers below for the three South Texas congressional races on our competitive race list.

 

There’s been a lot of money raised and spent in those contests, but it turns out that U.S. Rep. Dan Crenshaw, R-Houston, is far and away the leader in Texas’ U.S. House races for money raised and spent.  In fact, Crenshaw is sixth in the country for U.S. House races in terms of money raised and spent – $15,027,830 raised and $15,004,396 spent since Jan. 1, 2021.

 

Democrat Jessica Cisneros, D-Laredo, who was unsuccessful in her attempt to oust U.S. Rep. Henry Cuellar, D-Laredo, in the primary election was #23, having raised $6,604,538 and spending $6,367,938. Crenshaw’s fellow veteran U.S. Rep. Jake Ellzey, R-Waxahachie, was #24 with $6,588,204 raised and $6,023,148 spent.

 

If you’d like to see what congressional candidates in your area raised and spent, you can find it at one of two sites:

 

Federal Election Commission –    https://www.fec.gov/data/elections/?cycle=2022&state=TX  

OpenSecrets.org –                     https://www.opensecrets.org/races/election?id=TX

 

In the meantime, here are the new report numbers from those South Texas congressional races:

 

South Texas / CD 15   OPEN SEAT

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Monica De La Cruz, R-Alamo	$3,968,779	$3,200,276	$776,009
Michelle Vallejo, D-Mission	$1,566,226	$1,265,491	$300,735
NOTES: Of the three Texas congressional seats the GOP hopes to flip in 2022, this is TAB’s pick for the most likely seat to change party hands. It features a fight between Conservative Republican De La Cruz and so-called “Progressive” Democrat Vallejo. There’s been no shortage of cash raised and spent by either side, but Republican De La Cruz has led in all three categories throughout 2022.

 

South Texas / CD 28

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Henry Cuellar, D-Laredo (I)	$4,341,318	$5,055,648	$836,143
Cassy Garcia, R-Laredo	$2,370,473	$1,983,510	$386,963
NOTES: Incumbent U.S. Rep. Henry Cuellar, D-Laredo, has had a tough year so far with a close primary runoff election and an FBI investigation into some of his associates, but he has survived both so far. The November general election will also be a tough battle and this time it’s against a well-funded GOP opponent running in a district the Republicans wish to flip. According to the Federal Election Commission, Cuellar ranks #33 in funds raised and spent out of all 2022 U.S. House candidates

 

South Texas / CD 34   OPEN SEAT

 

CANDIDATES

RAISED

EXPENSES

CASH ON HAND

 

Mayra Flores, R-Los Indios	$3,364,128	$2,564,915	$799,213
Vincente Gonzalez, D-Brownsville	$2,747,756	$3,298,173	$820,075
NOTES: Incumbent CD 15 U.S. Rep. Vincente Gonzalez, D-Brownsville, is running for election in bluer CD 34 in 2022. He faces the current CD 34 incumbent, U.S. Rep. Mayra Flores, R-Los Indios, who won a special election this summer to claim the seat. The question is, will she still hold the seat come January? Increasingly, the national odds-makers are saying the race is a Toss-Up.

 

TAB’S COMPETITIVE POLITICAL RACES

Most veteran political watchers are still saying the statewide races are the GOP’s to lose. There will be a handful of competitive congressional and statehouse districts. The 2022 congressional and statehouse hotspot will be South Texas.

 

Here’s our list of the competitive statewide, statehouse, and congressional seats in the Nov. 8 general election.  Open seats are in purple. Incumbents are highlighted in green.

 

STATEWIDE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
Governor	Statewide	Greg Abbott, R-Austin	Robert (Beto) O’Rourke, D-El Paso
Lt. Gov.	Statewide	Dan Patrick, R-Houston	Mike Collier, D-Houston
Atty. Gen.	Statewide	Ken Paxton, R-McKinney	Rochelle Mercedes Garza, D-Brownsville
Ag. Comm.	Statewide	Sid Miller, R- R-Stephenville	Susan Hays, D-Austin
Land Comm.	Statewide	Dawn Buckingham, R-Lakeway	Jay Kleberg, D-Austin
Comptroller	Statewide	Glenn Hegar, R-Katy	Janet T. Dudding, D-Bryan
RRC	Statewide	Wayne Christian, R-Center	Luke Warford, D-Austin

 

CONGRESSIONAL RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
CD 28		Laredo	Cassy Garcia, R-Laredo	Henry Cuellar, D-Laredo
CD 15		RGV / S. TX	Monica De La Cruz, R-Alamo	Michelle Vallejo, D-Mission
CD 34		RGV / S. TX	Mayra Flores, R-Los Indios	Vicente Gonzalez, D-McAllen

 

TEXAS SENATE RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
SD 27		RGV/S. TX	Adam Hinojosa, R-Corpus Christi	Morgan LaMantia, D-Brownsville

 

TEXAS HOUSE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
HD 70	DFW	Jamee Jolly, R-Plano	Michaela Elizabeth Plesa, D-Dallas
HD 112	DFW	Angie Chen Button, R-Richardson	Elva Curl, D-Dallas
HD 134	Houston	Ryan McConnico, R-Houston	Ann Johnson, D-Houston
HD 37	RGV	Janie Lopez, R-San Benito	Luis Villarreal, Jr., D-Harlingen
HD 118	San Antonio	John Lujan, R-San Antonio	Frank Ramirez, D-San Antonio
HD 54	Waco/T/K	Brad Buckley, R-Salado	Jonathan Hildner, D-Killeen

 

remaining 2022 political dates of note

Monday, Oct. 24	Early voting begins for Nov. 8 General Election
Thursday, Oct. 27	Federal candidates’ Pre-General Election Report due to Federal Elections Comm.
Friday, Oct. 28	Mail ballot application deadline
Monday, Oct. 31	State candidates’ 8-Day-Out Report due to Texas Ethics Commission
Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

October 4,2022

The Supreme Court has agreed to hear challenges to the Section 230 provision of the Communications Decency Act, which protects tech platforms when their algorithms recommend problematic content to users. Google has argued it was protected by Section 230 in a case brought by the family of a woman killed in an ISIS attack in Paris in 2015, claiming Google “aided and abetted” ISIS by allowing terrorist videos on YouTube and including them in recommendations.

 

 

SEPTEMBER  2022

 

Sept 28, 2022

Multiple campaigns for the big three elective office contests (Governor, Lt. Governor and Attorney General) are on the air with broadcast advertising.  Expect more of the same through the Nov. 8 general election.

 

Three polls are out this week on the gubernatorial contest. Two of the three polls (Quinnipiac University and Emerson College) are rated A- in historic accuracy by the number crunchers at RealClearPolitics. Both were released Tuesday.

 

The other, a TEGNA/Texas Hispanic Policy Foundation poll released Monday, sheds some light on voters’ preferences in the down the ballot races for statewide office.  Perhaps that poll’s most significant finding is in the gubernatorial race.  The poll found that voters seem hardened in their choices for governor, with little room for movement come November. The poll found only three percent of those surveyed were undecided in the gubernatorial race.

 

These three latest polls are good news for GOP statewide office incumbents as they show consistent leads over Democratic challengers. The polls also sought voter opinion on leading issues, such as U.S. border policy, abortion, and gun policy.

 

We’ll hit all three polls with bullet points and wrap it up at the bottom with our 2022 poll results tables in those three races.

 

• The Quinnipiac University poll showed Gov. Greg Abbott, R-Austin, leading former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by seven percentage points, 53-46 percent.

 

• “The race for the top job in Austin leans toward Abbott, who has very strong support from white Texans, particularly white men, while O’Rourke has overwhelming appeal among Black voters and strong support among young voters,” said Quinnipiac University Polling Analyst Tim Malloy.

 

• Asked to choose the most urgent issue facing Texas today, the Texas-Mexico border (38 percent) ranks first followed by abortion (17 percent) and inflation (11 percent). There are big differences by party identification. Among Republicans, the Texas-Mexico border (66 percent) ranks first followed by inflation (20 percent). No other issue reached double digits. Among Democrats, abortion (36 percent) ranks first followed by gun policy (16 percent) and election laws (12 percent). Among independents, the Texas-Mexico border (37 percent) ranks first followed by abortion (16 percent). No other issue reached double digits

 

• Interestingly, the poll asked these likely voters what their preferences were for voting in the 2022 general elections.  Two-thirds of likely voters (66 percent) said they plan to vote in person at an early voting location. Twenty-five percent plan to vote in person on Election Day and eight percent plan to vote early by mail or absentee ballot.

 

• The Hill / Emerson College poll showed Gov. Greg Abbott, R-Austin, leading former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by eight percentage points, 50-42 percent.

 

• Spencer Kimball, Executive Director of Emerson College Polling said, “Texas’ white voters prefer Abbott over O’Rourke 60% to 35%, and Hispanic voters plan to vote for the Governor 46% to 42%. By contrast, Black voters prefer O’Rourke over Abbott 78% to 12%.”

 

• The economy is the top issue for 40 percent of Texas voters, followed by abortion access (16%), immigration (12%), and healthcare (8%).  “Among those much more likely to vote because of Roe overturning, 62% plan to vote for O’Rourke. For those whom it makes no difference, 72% plan to vote for Abbott,” Kimball noted. 

 

• The TEGNA/Texas Hispanic Policy Foundation poll showed Gov. Greg Abbott, R-Austin, leading former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by seven percentage points, 51-44 percent, with three percent undecided.

 

• “Gov. Abbott’s strength among rural and Anglo voters continues to bolster his intransigent structural support in the 2022 race for Texas Governor,” THPF CEO Jason Villalba says of the poll’s results. “While O’Rourke has shown himself to be a worthy and hard-working adversary, unless there is a marked shift in the composition of the November electorate, Gov. Abbott will remain the political and thought leader of Texas politics. Only new voters will be able to shift the tide.”

 

• Abbott holds a nearly two-to-one advantage over O’Rourke among white voters, with the incumbent being a 63% choice to his challenger’s 33%. O’Rourke has a strong advantage with Black voters, however, up 79% to Abbott’s 16%. The support margin is closer among Hispanic voters, with 53% intending to vote for O’Rourke and 39% for Abbott.

 

• The poll showed Lt. Governor Dan Patrick, R-Houston, leading Democrat Mike Collier, D-Houston, by six percentage points, 48 to 42 percent, with eight percent undecided.

 

• In the race for Attorney General, incumbent Ken Paxton, R-McKinney, led Rochelle Mercedes Garza, D-Brownsville, by five percentage points, 47-42 percent, with eight percent undecided.

 

• GOP incumbent St. Comptroller Glenn Hegar, R-Katy, led Democratic challenger Janet Dudding by eight percentage points, 46 to 38 percent, with 14 percent undecided.

 

• The poll showed St. Sen. Dawn Buckingham, R-Lakeway, leading Democrat Jay Kleberg by eight percentage points, 46 to 38 percent, with 14 percent undecided.

 

• In the race for Agriculture Commissioner, GOP incumbent Sid Miller led Democrat Susan Hays, by seven percentage points, 48-41 percent, with 11 percent undecided.

 

• The poll showed GOP incumbent Railroad Commissioner Wayne Christian leading Democrat Luke Warford by seven percentage points, 44 to 37 percent, with 14 percent undecided.

 

GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Abbott	O’Rourke	Spread
Quinnipiac	A-	9/22-26	1,327 LV	+/- 2.7%	53%	46%	Abbott +7
The Hill/Emerson College	A-	9/20-22	1,000 LV	+/- 3.02%	50%	42%	Abbott +8
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	51%	44%	Abbott +7
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	47%	38%	Abbott +9
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	50%	43%	Abbott +7
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	45%	40%	Abbott +5
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	49%	42%	Abbott +7
UT Tyler/DMN	B/C	8/1-7	1,384 RV	+/- 2.6%	46%	39%	Abbott +7
UH Hobby Center/YouGov	B+	6/27-7/7	1,169 RV	+/- 2.9%	49%	44%	Abbott +5
UT/TX Tribune/ TX Politics Project	B+	6/16-24	1,200 RV	+/- 2.89%	45%	39%	Abbott +6
CBS News/YouGov	B+	6/22-27	1,075 adults	+/- 4.7%	49%	41%	Abbott +8
Quinnipiac	A-	6/9-13	1,257 RV	+/- 2.8%	48%	43%	Abbott +5
Blueprint Polling	—	6/8-10	603 LV	+/- 3.99%	56%	37%	Abbott +18
UT Tyler/DMN	B/C	5/2-10	1,232 RV	+/- 2.8%	46%	39%	Abbott +7
UT/TX Tribune/YouGov	B+	4/14-22	1,200 RV	+/- 2.83%	48%	37%	Abbott +11
Rice U/TX Hispanic Pol. Foundation	—	3/18-28	1,139 LV	+/- 3.9%	50%	42%	Abbott +8
Texas Lyceum	—	3/11-20	926 RV	+/- 2.83%	42%	40%	Abbott +2
Emerson College /Nexstar/Hill	A-	2/21-22	1,000 LV	+/- 4.2%	52%	45%	Abbott +7
UT Tyler/DMN	B/C	2/8-15	1,188 RV	+/- 2.8%	45%	38%	Abbott +7
Climate Nexus	—	2/1-9	933 RV	+/- 3.3%	45%	40%	Abbott +5
UT/TX Tribune/YouGov	B+	1/28-2/7	1,200 RV	+/- 2.83%	47%	37%	Abbott +10
Quinnipiac	A-	12/2-6	1224 RV	+/- 2.8%	52%	37%	Abbott +15
UT Tyler/DMN	B/C	11/9-16	1106 RV	+/- 3.2%	44.7%	39.3%	Abbott +5.4
UT/TX Tribune/YouGov	B+	10/22-31	1200 RV	+/- 2.8%	46%	37%	Abbott +9
Rice U/TX Hispanic Pol. Foundation	—	10/14-27	1402 RV	+/- 2.6%	43%	42%	Abbott +1
UT Tyler/DMN	B/C	9/7-14	1148 RV	+/- 3.7%	42%	37%	Abbott +5

* As graded by FiveThirtyEight   

RealClearPolitics average of Texas gubernatorial polling as of 9/28 is Abbott +8%

 

LT. GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Patrick	Collier	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	48%	42%	Patrick +6
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	39%	28%	Patrick +11
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	49%	40%	Patrick +9
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	39%	32%	Patrick +7
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	49%	43%	Patrick +6

 

ATTORNEY GENERAL

 

Poll	Accuracy*	Dates	Sample	M of E	Paxton	Garza	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	47%	42%	Paxton +5
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	37%	30%	Paxton +7
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	47%	42%	Paxton +5
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	38%	33%	Paxton +5
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	45%	42%	Paxton +3

 

COMPTROLLER

 

Poll	Accuracy*	Dates	Sample	M of E	Hegar	Dudding	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	46%	38%	Hegar +8

 

LAND COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Buckingham	Kleberg	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	46%	38%	Buckingham +8

 

AGRICULTURE COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Miller	Hays	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	48%	42%	Miller +7

 

RAILROAD COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Christian	Warford	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	44%	37%	Christian +7

 

remaining 2022 political dates of note

 

Monday, Oct. 10	Last day to register to vote for Nov. 8 General Election
Tuesday, Oct. 11	State candidates’ 30-Day-Out Report due to Texas Ethics Comm.
Saturday, Oct. 15	Federal candidates’ October Quarterly Report due to Federal Elections Comm.
Monday, Oct. 24	Early voting begins for Nov. 8 General Election
Thursday, Oct. 27	Federal candidates’ Pre-General Election Report due to Federal Elections Comm.
Monday, Oct. 31	State candidates’ 8-Day-Out Report due to Texas Ethics Commission
Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

September 27th

FTC MOVES LOOKS AT PRIVACY RULEMAKING

On September 8, the Federal Trade Commission conducted an online “Commercial Surveillance and Data Security Rulemaking Forum” as a follow-up to the release of the Advance Notice of Public Rulemaking on the same subject.

 

AAF Executive Vice President-Government Affairs Clark Rector spoke at the Forum. In his comments he noted AAF supports the adoption of a national privacy law but believes Congress is the appropriate body to enact that law, noting that AAF has and is urging Congress to do so. He took exception to the tone of the ANPR pointing out it failed to recognize the many benefits of the responsible use of data and data-driven advertising.

 

MediaPost published an op-ed by Rector explaining AAF’s views on the matter.

 

AAF objects to the pejorative term “commercial surveillance” as it casts an unfair, negative light on a practice that when appropriately done is beneficial to and accepted by businesses and most consumers.

 

The AAF has also joined a letter to the Commission requesting an extension of the public comment period on the ANPR from October 21 to December 20, 2022.

 

CALIFORNIA ENACTS PROBLEMATIC CHILD ONLINE PROTECTION LAW

California Governor Gavin Newsom has signed into law the Age-Appropriate Design Code Act intended to protect children online. While AAF supports protecting children online, we believe the new law is seriously flawed and AAF signed a letter urging the Governor to veto it.

 

Among other flaws, the new law defines a child as anyone under the age of eighteen. The federal Children’s Online Privacy Protection Rule defines a child as being under the age of 13 and the California Consumer Privacy Act and California Privacy Rights Act recognizes categories of under thirteen, thirteen to fifteen and sixteen and older. The bills overly broad standards would include the vast majority of websites of even minimal interest to anyone under the age of 18 and its age-verification requirements would greatly degrade the online experience for adults as well as children.

PROTECTING THE DEDUCTIBILITY OF ADVERTISING

Perhaps the most important government affairs issue for AAF members is preserving advertising’s federal tax status as a normal and necessary business expense fully deductible in the current year. AAF is a founding member of The Advertising Coalition, a group of associations and companies that work together on the issue. One of our strategies is to arrange grassroots meetings between House and Senate members of the congressional tax writing committees and their constituents from the advertising industry. Many AAF club members from across the country have attended these meetings. One of the most recent was with Representative Dan Kildee, D-Mich., a member of the House Ways and Means Committee. Dave Perry, President of AAF Greater Flint reports:

 

When I got the call from Clark Rector at AAF to help mobilize a grassroots meeting with our local Congressman Dan Kildee in my town of Flint, Michigan, I was excited to help make that happen. The group that was assembled for this meeting was a great representation of the local advertising landscape; TV, radio, agency and several others were present to give a face to the impact that advertising has in this community. The meeting went well, and we covered a lot of ground supported by a lot of facts and figures, on why the deductibility of advertising expenses is vital to the sustainability of this industry and why Congressman Kildee, a member of the House Ways and Means Committee, needs to be on our side when discussion of this subject comes up on the Hill. I was honored to be called to duty on behalf of the AAF and the advertising industry and feel that this is the heart of what the AAF does for its membership and the reason involvement is so vital.

AAF ENCOURAGES ADVERTISING INDUSTRY TO VOTE

The American Advertising Federation, along with many of our allied industry partners has joined forces with Voting Maven to increase voter participation within the Advertising & Media industry. The goal is to empower all advertising professionals with the information resources they need to exercise their right to vote.

 

Complete information can be found at votingmaven.org (Media & Advertising Voters Engaging Now), a non-partisan mid-term voting information destination for the industry, by the industry. There a voter can find everything she or he needs to know, including polling location, early voting rules, ballot information, and voter registration status.

DAA PROVIDES POLITICAL ADS DISCLOSURE SOLUTION

AAF is a participant in The Digital Advertising Alliance (DAA), a consortium of leading national advertising and marketing trade groups that together deliver effective, self-regulatory solutions to online consumer issues. The DAA has provided this update for AAF members about their political advertising tools.

POLITICAL ADS AND VOTER TRANSPARENCY: HOW TO ENSURE POLITICAL CLIENTS DELIVER NECESSARY CAMPAIGN DISCLOSURES UNOBTRUSIVELY IN DIGITAL AND MOBILE ADS

With the primary season over, and the mid-term general election now upon us, it’s a good time to revisit just how to deliver campaign disclosures with every mobile and digital political ad our member agencies deliver on behalf of political clients.

 

The Digital Advertising Alliance (DAA) – in which AAF is a founder – has simplified its Political Ads Program in such a way that it’s easy for agencies to leverage on behalf of their clients.

 

When DAA first launched the Application of Principles of Transparency and Accountability to Political Advertising (pdf) and an accompanying voter education site in 2018, the focus was on having companies build mechanisms into their own platforms to help their political advertisers with compliance, for example delivering the Political Ad icon and required disclosures in ads.

 

The DAA Political Ads Principles were developed in a cross-industry fashion to be responsive to concerns raised by the US Congress and other elected stakeholders about the transparency in digital political advertisements. Several US states and the national elections regulators in Canada have supported or adopted the Principles in various ways. This demonstrates the ability of the responsible digital advertising industry to be responsive to and effective at delivering on its promises. As the Wall Street Journal reported when we launched, “…marketers and advertising platforms have a vested interest in cleaning up the digital ad ecosystem and making it more transparent, particularly as brand-safety concerns continue to crop up.”

 

According to the DAA Principles, the icon and optional “Political Ad” wording (also available in Spanish) on the marker should link to disclosures that include:

 

• Name of the political advertiser;
• Phone number, address, website, or alternative and reliable contact information for the advertiser;
• Link to a government database of contributions and expenditures for the advertiser, if applicable;
• Name(s) of the advertiser’s CEO, executive committee, board of directors or treasurer,
• Any disclaimers required by state or federal law, if the ad itself is too small to display them (as permitted by applicable law); and
• Other information required by applicable federal or state law for such notices.

In consultation with several companies and in cooperation with DAA’s global partner, Digital Advertising Alliance of Canada – which also has a version of Political Ads Principles north of the border, DAA has undertaken three program enhancements to make adherence to the Principles easier for political advertisers, with the active support of their agencies:

 

• A self-service platform (with onboarding and training support), where each political advertiser (or their agency) can enable icon and disclosure delivery tagged to each and every political ad by the advertiser, the campaign, and the creative they handle.
• An application programming interface (API) that enables the same real-time disclosures, can integrate with agencies’ own programmatic offerings.
• A public Political Ad registry service – available both to self-service and API users – which many demand-side and other ad tech platforms might choose to use, complement, or integrate.  (Several states now require political advertisers in a respective state to maintain a public-facing registry or database of political ads associated with a candidate.)

 

A recent webinar DAA organized with its legal counsel, MediaMath, and Campaigns & Elections magazine showcases these enhancements, their functionality and their benefits to agencies. A recording is available here.  If you’d like to get on board or extend your use of the Political Ads program, contact DAA’s Chet Dalzell directly chet@aboutads.info or get started here.2023 advertising day on the hillPreparations are underway for the AAF’s next Advocacy and Action: Advertising Day on the Hill Thursday, March 23, 2023, in Washington, DC.

 

As a vivid demonstration of our grassroots in action, the Advertising Day on the Hill is one of the most important days on the AAF calendar. In the morning, participants are briefed on the issues facing the advertising industry. The afternoon is spent in meetings with lawmakers and their staffs educating them about the issues and the importance of advertising to the U.S. economy.

 

Few things make as a profound impact on elected officials as constituents passionate enough about their industry to travel to our nation’s Capital to make their voices heard.

Registration opens soon. For now, mark your calendars for March 23, 2023, and start making plans to join us in Washington, DC for AAF’s Advocacy an

 

 Sept 22th, 2022

Multiple campaigns for the big three elective office contests (Governor, Lt. Governor and Attorney General) are on the air with broadcast advertising.  Expect more of the same through the Nov. 8 general election.

 

Three polls are out this week on the gubernatorial contest. Two of the three polls (Quinnipiac University and Emerson College) are rated A- in historic accuracy by the number crunchers at RealClearPolitics. Both were released Tuesday.

 

The other, a TEGNA/Texas Hispanic Policy Foundation poll released Monday, sheds some light on voters’ preferences in the down the ballot races for statewide office.  Perhaps that poll’s most significant finding is in the gubernatorial race.  The poll found that voters seem hardened in their choices for governor, with little room for movement come November. The poll found only three percent of those surveyed were undecided in the gubernatorial race.

 

These three latest polls are good news for GOP statewide office incumbents as they show consistent leads over Democratic challengers. The polls also sought voter opinion on leading issues, such as U.S. border policy, abortion, and gun policy.

 

We’ll hit all three polls with bullet points and wrap it up at the bottom with our 2022 poll results tables in those three races.

 

• The Quinnipiac University poll showed Gov. Greg Abbott, R-Austin, leading former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by seven percentage points, 53-46 percent.

 

• “The race for the top job in Austin leans toward Abbott, who has very strong support from white Texans, particularly white men, while O’Rourke has overwhelming appeal among Black voters and strong support among young voters,” said Quinnipiac University Polling Analyst Tim Malloy.

 

• Asked to choose the most urgent issue facing Texas today, the Texas-Mexico border (38 percent) ranks first followed by abortion (17 percent) and inflation (11 percent). There are big differences by party identification. Among Republicans, the Texas-Mexico border (66 percent) ranks first followed by inflation (20 percent). No other issue reached double digits. Among Democrats, abortion (36 percent) ranks first followed by gun policy (16 percent) and election laws (12 percent). Among independents, the Texas-Mexico border (37 percent) ranks first followed by abortion (16 percent). No other issue reached double digits

 

• Interestingly, the poll asked these likely voters what their preferences were for voting in the 2022 general elections.  Two-thirds of likely voters (66 percent) said they plan to vote in person at an early voting location. Twenty-five percent plan to vote in person on Election Day and eight percent plan to vote early by mail or absentee ballot.

 

• The Hill / Emerson College poll showed Gov. Greg Abbott, R-Austin, leading former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by eight percentage points, 50-42 percent.

 

• Spencer Kimball, Executive Director of Emerson College Polling said, “Texas’ white voters prefer Abbott over O’Rourke 60% to 35%, and Hispanic voters plan to vote for the Governor 46% to 42%. By contrast, Black voters prefer O’Rourke over Abbott 78% to 12%.”

 

• The economy is the top issue for 40 percent of Texas voters, followed by abortion access (16%), immigration (12%), and healthcare (8%).  “Among those much more likely to vote because of Roe overturning, 62% plan to vote for O’Rourke. For those whom it makes no difference, 72% plan to vote for Abbott,” Kimball noted. 

 

• The TEGNA/Texas Hispanic Policy Foundation poll showed Gov. Greg Abbott, R-Austin, leading former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by seven percentage points, 51-44 percent, with three percent undecided.

 

• “Gov. Abbott’s strength among rural and Anglo voters continues to bolster his intransigent structural support in the 2022 race for Texas Governor,” THPF CEO Jason Villalba says of the poll’s results. “While O’Rourke has shown himself to be a worthy and hard-working adversary, unless there is a marked shift in the composition of the November electorate, Gov. Abbott will remain the political and thought leader of Texas politics. Only new voters will be able to shift the tide.”

 

• Abbott holds a nearly two-to-one advantage over O’Rourke among white voters, with the incumbent being a 63% choice to his challenger’s 33%. O’Rourke has a strong advantage with Black voters, however, up 79% to Abbott’s 16%. The support margin is closer among Hispanic voters, with 53% intending to vote for O’Rourke and 39% for Abbott.

 

• The poll showed Lt. Governor Dan Patrick, R-Houston, leading Democrat Mike Collier, D-Houston, by six percentage points, 48 to 42 percent, with eight percent undecided.

 

• In the race for Attorney General, incumbent Ken Paxton, R-McKinney, led Rochelle Mercedes Garza, D-Brownsville, by five percentage points, 47-42 percent, with eight percent undecided.

 

• GOP incumbent St. Comptroller Glenn Hegar, R-Katy, led Democratic challenger Janet Dudding by eight percentage points, 46 to 38 percent, with 14 percent undecided.

 

• The poll showed St. Sen. Dawn Buckingham, R-Lakeway, leading Democrat Jay Kleberg by eight percentage points, 46 to 38 percent, with 14 percent undecided.

 

• In the race for Agriculture Commissioner, GOP incumbent Sid Miller led Democrat Susan Hays, by seven percentage points, 48-41 percent, with 11 percent undecided.

 

• The poll showed GOP incumbent Railroad Commissioner Wayne Christian leading Democrat Luke Warford by seven percentage points, 44 to 37 percent, with 14 percent undecided.

 

GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Abbott	O’Rourke	Spread
Quinnipiac	A-	9/22-26	1,327 LV	+/- 2.7%	53%	46%	Abbott +7
The Hill/Emerson College	A-	9/20-22	1,000 LV	+/- 3.02%	50%	42%	Abbott +8
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	51%	44%	Abbott +7
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	47%	38%	Abbott +9
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	50%	43%	Abbott +7
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	45%	40%	Abbott +5
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	49%	42%	Abbott +7
UT Tyler/DMN	B/C	8/1-7	1,384 RV	+/- 2.6%	46%	39%	Abbott +7
UH Hobby Center/YouGov	B+	6/27-7/7	1,169 RV	+/- 2.9%	49%	44%	Abbott +5
UT/TX Tribune/ TX Politics Project	B+	6/16-24	1,200 RV	+/- 2.89%	45%	39%	Abbott +6
CBS News/YouGov	B+	6/22-27	1,075 adults	+/- 4.7%	49%	41%	Abbott +8
Quinnipiac	A-	6/9-13	1,257 RV	+/- 2.8%	48%	43%	Abbott +5
Blueprint Polling	—	6/8-10	603 LV	+/- 3.99%	56%	37%	Abbott +18
UT Tyler/DMN	B/C	5/2-10	1,232 RV	+/- 2.8%	46%	39%	Abbott +7
UT/TX Tribune/YouGov	B+	4/14-22	1,200 RV	+/- 2.83%	48%	37%	Abbott +11
Rice U/TX Hispanic Pol. Foundation	—	3/18-28	1,139 LV	+/- 3.9%	50%	42%	Abbott +8
Texas Lyceum	—	3/11-20	926 RV	+/- 2.83%	42%	40%	Abbott +2
Emerson College /Nexstar/Hill	A-	2/21-22	1,000 LV	+/- 4.2%	52%	45%	Abbott +7
UT Tyler/DMN	B/C	2/8-15	1,188 RV	+/- 2.8%	45%	38%	Abbott +7
Climate Nexus	—	2/1-9	933 RV	+/- 3.3%	45%	40%	Abbott +5
UT/TX Tribune/YouGov	B+	1/28-2/7	1,200 RV	+/- 2.83%	47%	37%	Abbott +10
Quinnipiac	A-	12/2-6	1224 RV	+/- 2.8%	52%	37%	Abbott +15
UT Tyler/DMN	B/C	11/9-16	1106 RV	+/- 3.2%	44.7%	39.3%	Abbott +5.4
UT/TX Tribune/YouGov	B+	10/22-31	1200 RV	+/- 2.8%	46%	37%	Abbott +9
Rice U/TX Hispanic Pol. Foundation	—	10/14-27	1402 RV	+/- 2.6%	43%	42%	Abbott +1
UT Tyler/DMN	B/C	9/7-14	1148 RV	+/- 3.7%	42%	37%	Abbott +5

* As graded by FiveThirtyEight   

RealClearPolitics average of Texas gubernatorial polling as of 9/28 is Abbott +8%

 

LT. GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Patrick	Collier	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	48%	42%	Patrick +6
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	39%	28%	Patrick +11
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	49%	40%	Patrick +9
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	39%	32%	Patrick +7
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	49%	43%	Patrick +6

 

ATTORNEY GENERAL

 

Poll	Accuracy*	Dates	Sample	M of E	Paxton	Garza	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	47%	42%	Paxton +5
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	37%	30%	Paxton +7
Spectrum News/Siena College	—	9/14-18	651 LV	+/- 4.4%	47%	42%	Paxton +5
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	38%	33%	Paxton +5
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	45%	42%	Paxton +3

 

COMPTROLLER

 

Poll	Accuracy*	Dates	Sample	M of E	Hegar	Dudding	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	46%	38%	Hegar +8

 

LAND COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Buckingham	Kleberg	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	46%	38%	Buckingham +8

 

AGRICULTURE COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Miller	Hays	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	48%	42%	Miller +7

 

RAILROAD COMMISSIONER

 

Poll	Accuracy*	Dates	Sample	M of E	Christian	Warford	Spread
TEGNA/TX Hispanic Pol. Foundation	—	9/6-15	1,172 LV	+/- 2.9%	44%	37%	Christian +7

 

remaining 2022 political dates of note

 

Monday, Oct. 10	Last day to register to vote for Nov. 8 General Election
Tuesday, Oct. 11	State candidates’ 30-Day-Out Report due to Texas Ethics Comm.
Saturday, Oct. 15	Federal candidates’ October Quarterly Report due to Federal Elections Comm.
Monday, Oct. 24	Early voting begins for Nov. 8 General Election
Thursday, Oct. 27	Federal candidates’ Pre-General Election Report due to Federal Elections Comm.
Monday, Oct. 31	State candidates’ 8-Day-Out Report due to Texas Ethics Commission
Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

 

Sept 21st, 2022

 

Polls, Polls, Polls

Two new polls on statewide races to report on this week. The Dallas Morning News and the University of Texas at Tyler released a poll Monday with the following results:

 

• In the gubernatorial contest, incumbent Gov. Greg Abbott, R-Austin, leads former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by nine percentage points, 47% to 38%
• The same pollster showed Abbott leading by seven percentage points roughly a month ago
• Abbott and O’Rourke are nearly tied among independents, with O’Rourke edging out a one percentage point lead. Abbott held a slight lead among women, receiving 44 percent support compared to O’Rourke’s 42 percent. Half of respondents approved of Abbott’s job as governor, with a quarter indicating they strongly approve. Thirty-four percent said they strongly disapprove of his job performance. A majority, 54%, supported Abbott’s relocation of migrants by bus to Washington, D.C. Respondents were evenly split, 46% to 46%, in approval or disapproval of the SCOTUS Dobbs decision, with eight percent of respondents saying they were undecided.
• The poll was conducted by phone and online Sept. 6-13 with 1,268 registered voters. It has a margin of error of + 2.9 percentage points.

 

Another poll released Thursday by Spectrum News and Siena College had the following results:

 

• In the gubernatorial contest, Abbott leads O’Rourke by seven percentage points, 50% to 43%
• In the race for Lt. Governor, Republican incumbent Dan Patrick leads Democratic challenge Mike Collier by nine percentage points, 49% to 40%
• In the AG’s race, Republican incumbent Ken Paxton leads Democratic challenger Michelle Rosa Garza by five percentage points, 47% to 42%
• Said Siena pollsters, “Governor Abbott, who won a landslide thirteen-point race against Democratic challenger Lupe Valdez four years ago, has a seven-point lead with over six weeks until Election Day. Abbott has the support of 95% of Republicans and O’Rourke has the support of 93% of Democrats, while independents tilt toward Abbott by one point. White voters favor Abbott by over two-to-one, 64-31%, while Black voters prefer O’Rourke 79-10% and a majority of Latinos, 58-36%, plan to vote for O’Rourke.”
• Economic issues were the top concern of those surveyed, followed by immigration, threats to democracy, abortion, gun policies, crime, climate change and racial justice. Click this link to explore the issue results.
• The telephone survey was conducted Sept. 14-18 with calls in English and Spanish to 651 likely Texas voters. It has margin of error of + 4.4 percentage points. 

 

Here’s our running table on polling from the gubernatorial contest:

 

GOVERNOR: Average: Abbott +7.5% **

 

Poll	Accuracy*	Dates	Sample	M of E	Abbott	O’Rourke	Spread
UT Tyler/DMN	B/C	9/6-13	1,268 RV	+/- 2.9%	47%	38%	Abbott +9
Spectrum News/Siena College		9/14-18	651 LV	+/- 4.4%	50%	43%	Abbott +7
UT/TX Tribune/ TX Politics Project	B+	8/28-9/6	1,200 RV	+/- 2.83%	45%	40%	Abbott +5
UH – TSU TX Trends Survey	—	8/11-29	1,312 LV	+/- 2.7%	49%	42%	Abbott +7
UT Tyler/DMN	B/C	8/1-7	1,384 RV	+/- 2.6%	46%	39%	Abbott +7
UH Hobby Center/YouGov	B+	6/27-7/7	1,169 RV	+/- 2.9%	49%	44%	Abbott +5
UT/TX Tribune/ TX Politics Project	B+	6/16-24	1,200 RV	+/- 2.89%	45%	39%	Abbott +6
CBS News/YouGov	B+	6/22-27	1,075 adults	+/- 4.7%	49%	41%	Abbott +8
Quinnipiac	A-	6/9-13	1,257 RV	+/- 2.8%	48%	43%	Abbott +5
Blueprint Polling	—	6/8-10	603 LV	+/- 3.99%	56%	37%	Abbott +18
UT Tyler/DMN	B/C	5/2-10	1,232 RV	+/- 2.8%	46%	39%	Abbott +7
UT/TX Tribune/YouGov	B+	4/14-22	1,200 RV	+/- 2.83%	48%	37%	Abbott +11
Rice U/TX Hispanic Pol. Foundation	—	3/18-28	1,139 LV	+/- 3.9%	50%	42%	Abbott +8
Texas Lyceum	—	3/11-20	926 RV	+/- 2.83%	42%	40%	Abbott +2
Emerson College /Nexstar/Hill	A-	2/21-22	1,000 LV	+/- 4.2%	52%	45%	Abbott +7
UT Tyler/DMN	B/C	2/8-15	1,188 RV	+/- 2.8%	45%	38%	Abbott +7
Climate Nexus	—	2/1-9	933 RV	+/- 3.3%	45%	40%	Abbott +5
UT/TX Tribune/YouGov	B+	1/28-2/7	1,200 RV	+/- 2.83%	47%	37%	Abbott +10
Quinnipiac	A-	12/2-6	1224 RV	+/- 2.8%	52%	37%	Abbott +15
UT Tyler/DMN	B/C	11/9-16	1106 RV	+/- 3.2%	44.7%	39.3%	Abbott +5.4
UT/TX Tribune/YouGov	B+	10/22-31	1200 RV	+/- 2.8%	46%	37%	Abbott +9
Rice U/TX Hispanic Pol. Foundation	—	10/14-27	1402 RV	+/- 2.6%	43%	42%	Abbott +1
UT Tyler/DMN	B/C	9/7-14	1148 RV	+/- 3.7%	42%	37%	Abbott +5

*    As graded by FiveThirtyEight   

** RealClearPolitics average of Texas gubernatorial polling as of 9/22 is Abbott +7.5%

 

Speaking of issues important to Texas voters, UT’s Texas Politics Project, headed up by political scientist Jim Henson, has some issues data available that only got a slight mention in last week’s UT poll on the gubernatorial contest. You can find results and graphics on the Project’s latest poll page and a broader survey of the latest results in the blog section of the Project site.

 

Some highlights:

 

• Texans’ perceptions of their personal economic conditions remain mostly negative or stagnant, even if, overall, they have gotten a little less dour.
• Democrats are more likely to convey stagnation rather than worsening of their economic situations.
• Even if attitudes about the economy have become somewhat less negative, almost everyone says rising prices have impacted their household finances.
• Texas Republicans have maintained their intense focus on immigration and border security as political issues despite the increased media attention to other issues during the Spring and Summer after the Dobbs decision and the Uvalde mass shooting.
• No surprise here, Donald Trump remains a primal force in Texas GOP politics.

 

Another “name” Republican endorses Democrat Mike Collier over Lt. Gov. Dan Patrick

Remember a couple of issues ago we talked about some high-profile Republicans who have endorsed Democrat Collier over Patrick? Normally, we don’t report on endorsements, and yes, they have been outgoing office holders so they’re speaking a little more candidly because there’s no love lost between them and Patrick. Well, add another high-profile GOP individual to the list, former Lt. Gov. Bill Ratliff, a moderate Republican who served at Lt. Governor from 2000-2003, and in the Texas Senate for 12 years before that. Said Ratliff:

 

“I believe Mike Collier’s background as a businessman and energy professional makes him the best candidate to help return the Texas Senate to that principle. Members of the Senate should be free to vote their district without fear of retribution or retaliation from the Lt. Governor and all 31 Senators should have a voice for their constituents.

 

When I ran for office, I had support from both sides of the aisle because the people of East Texas voted for the man, not the party. As a former elected Republican, I’m putting partisanship aside and joining the growing number of Republicans voting for the man we think is best for Texas, and that’s Mike Collier.”

 

Three national handicappers revised their ratings in A Texas competitive congressional race, Laredo’s CD 28

Two of the most respected political handicappers, the venerable Cook Political Report and the oddsmaker data nerds at Nate Silver’s FiveThirtyEight, as well as a political compiling outfit, 270 to Win, have all upgraded the chances that incumbent U.S. Rep. Henry Cuellar, D-Laredo, will retain his seat.

 

It’s one of three the GOP have targeted in South Texas.  The other two are CD 15 and CD 34 noted in our competitive race list further below.

 

Said Cook, “Republicans probably missed their best opportunity to flip this Biden +7 seat when Cuellar — a conservative Blue Dog who’s one of the last pro-life Democrats in the House – defeated progressive immigration attorney Jessica Cisneros by 289 votes in the May Democratic runoff. Cuellar’s tough-on-the-border, pro-oil and gas posture fits this culturally conservative border seat well and makes it tough for Republicans to lump him together with Beto O’Rourke or Joe Biden. Make no mistake: this is still a competitive race. But in 2020, Cuellar won reelection 58%-39%, overperforming Biden’s margin by 15 points.”

 

The folks at FiveThirtyEight, have also upgraded their rating in the Texas gubernatorial contest, giving incumbent Abbott a better chance of defeating challenger O’Rourke.

 

Updated Sept. 16 (Governor), Sept 21 (U.S. House)   

Cook Political Report			House	Governor
RATING STRUCTURE	Solid D, Likely D, Lean D, Toss Up, Lean R, Likely R, Solid R
CD 15	Open Seat	Lean R
CD 28	Cuellar	Lean D (Was “Toss Up”)
CD 34	Open Seat	Lean D
Governor	Abbott	Likely R

                                                                                 

Updated Sept 22 (Governor), Sept 22 (U.S. House)   

270 to Win			House	Governor
RATING STRUCTURE	Safe D, Likely D, Lean D, Tilt D, Toss Up, Tilt R, Lean R, Likely R, Safe R
CD 15	Open Seat	Lean R
CD 28	Cuellar	Lean D (Was “Tilt D”)
CD 34	Flores	Lean D
Governor	Abbott	Likely R

 

Updated Sept 22 (Governor), Sept 22 (U.S. House)   

FiveThirtyEight			House	Governor
RATING STRUCTURE	Solid D, Likely D, Leans D, Toss Up, Leans R, Likely R, Solid R
CD 15	Open Seat	Leans R
CD 28	Cuellar	Likely D (Was “Leans D”)
CD 34	Flores	Likely D
Governor	Abbott	Solid R (Was “Likely R”)

 

One million new registered voters, Oct. 11 registration deadline looms November

There are about three weeks left to register to vote in the Nov. 8 general election. The registration deadline is Oct. 11. As of this morning, we have a total of 17,568,264 registered voters statewide. That’s up from the record 17,315,407 registered voters who were eligible to vote in the May 24 primary runoff elections.

 

You can keep track of the current number and even break it down by county at this page on the Secretary of State’s website: https://www.sos.state.tx.us/elections/historical/vrfig.shtml

 

The State of Texas has an ongoing voter education project, the “VoteReady” campaign, which seeks to educate voters on Texas’ voter ID requirements as prescribed by 2021’s SB 1.

 

TAB, TAB member stations and the Texas Secretary of State’s Office will start a TV and radio campaign to promote the effort and detail what types of ID are acceptable to vote in person and what is needed to vote by mail. Education on vote-by-mail is a big concern ahead of November. There were high rejection rates for mail-in ballots in the March primary (12 percent) because of newly-enacted requirements. As word got out about them, the overall mail ballot rejection rate decreased to four percent in the May runoffs said the SOS’ Sam Taylor.

 

TAB’s Public Education Partnership Program’s VoteReady on-air campaign starts Sept. 26.

 

Below are TAB’s “current” picks for races to watch in NOVEMBER November

Most veteran political watchers believe the GOP is favored to win all the statewide races, but there is grumbling amongst GOP folks in Austin that this could be year that a statewide office could fall to the Democrats. There will be a handful

of competitive congressional and statehouse districts. The 2022 congressional and statehouse hotspot will be the RGV and South Texas. Open seats are in purple. Incumbents are highlighted in green.

 

STATEWIDE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
Governor	Statewide	Greg Abbott, R-Austin	Robert (Beto) O’Rourke, D-El Paso
Lt. Gov.	Statewide	Dan Patrick, R-Houston	Mike Collier, D-Houston
Atty. Gen.	Statewide	Ken Paxton, R-McKinney	Rochelle Mercedes Garza, D-Brownsville
Ag. Comm.	Statewide	Sid Miller, R- R-Stephenville	Susan Hays, D-Austin
Land Comm.	Statewide	Dawn Buckingham, R-Lakeway	Jay Kleberg, D-Austin
Comptroller	Statewide	Glenn Hegar, R-Katy	Janet T. Dudding, D-Bryan
RRC	Statewide	Wayne Christian, R-Center	Luke Warford, D-Austin

 

CONGRESSIONAL RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
CD 28		Laredo	Cassy Garcia, R-Laredo	Henry Cuellar, D-Laredo
CD 15		RGV / S. TX	Monica De La Cruz, R-Alamo	Michelle Vallejo, D-Mission
CD 34		RGV / S. TX	Mayra Flores, R-Los Indios	Vicente Gonzalez, D-McAllen

 

TEXAS SENATE RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
SD 27		RGV/S. TX	Adam Hinojosa, R-Corpus Christi	Morgan LaMantia, D-Brownsville

 

TEXAS HOUSE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
HD 70	DFW	Jamee Jolly, R-Plano	Michaela Elizabeth Plesa, D-Dallas
HD 112	DFW	Angie Chen Button, R-Richardson	Elva Curl, D-Dallas
HD 134	Houston	Ryan McConnico, R-Houston	Ann Johnson, D-Houston
HD 37	RGV	Janie Lopez, R-San Benito	Luis Villarreal, Jr., D-Harlingen
HD 118	San Antonio	John Lujan, R-San Antonio	Frank Ramirez, D-San Antonio
HD 54	Waco/T/K	Brad Buckley, R-Salado	Jonathan Hildner, D-Killeen

 

remaining 2022 political dates of note

 

Monday, Oct. 10	Last day to register to vote for Nov. 8 General Election
Tuesday, Oct. 11	State candidates’ 30-Day-Out Report due to Texas Ethics Comm.
Saturday, Oct. 15	Federal candidates’ October Quarterly Report due to Federal Elections Comm.
Monday, Oct. 24	Early voting begins for Nov. 8 General Election
Thursday, Oct. 27	Federal candidates’ Pre-General Election Report due to Federal Elections Comm.
Monday, Oct. 31	State candidates’ 8-Day-Out Report due to Texas Ethics Commission
Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

JULY 2022

 

CONGRESS WORKS ON PRIVACY

July has been a busy month on Capitol Hill for privacy issues.

On July 20, the House Energy and Commerce Committee sent the American Data Privacy and Protection Act to the full House of Representatives for consideration. If enacted, the measure would eliminate most interest-based advertising by prohibiting companies from collecting or processing data about web user’s online activity across sites and over time for ad purposes.

 

The AAF supports a national, preemptive, comprehensive privacy law that represents a workable national privacy standard that works for consumers and businesses alike. We expressed our concerns and offered suggestions to improve this bill in substantive comments (here and here) to Committee leadership.

 

While the measure passed by a 52-3 vote, many members of the Committee expressed concern with some provisions of the bill and indicated their votes in favor were in the interest of continuing the dialogue on the issue.

 

Between the upcoming summer recess and elections in the fall, there are relatively few legislative days remaining this Congressional session. It is uncertain whether the measure will be brought before the full House, and even more unlikely to be heard in the Senate. AAF and our partners in Privacy for America will continue to educate lawmakers about the many benefits of the responsible use of data and continue to advocate for comprehensive privacy legislation that works for consumers and businesses.

 

Meanwhile, on the other side of the Hill, the Senate Commerce Committee met July 27, and advanced two pieces of children’s online privacy legislation. The Kid’s Online Safety Act was introduced by Senators Richard Blumenthal, D-CT and Marsha Blackburn, R-TN. Senators Ed Markey, D-MA and Bill Cassidy, R-LA introduced the Children’s and Teens Online Privacy Protection Act.

 

AAF was in contact with the Committee to express our concern that both pieces of legislation are drafted so broadly that almost any online service enjoyed by adults would also be impacted. We reiterated out support for national comprehensive privacy legislation that improves privacy for all Americans, including kids and teens. Prospects that the bills will be considered this year by the full Senate appear to be very slim.

 

 

AUGUST 2022

 

Aug 17th 2022

 

The Ad Council Research Institute and MTV Entertainment Studios announced initial findings from a research project focused on voting perceptions among younger Millennials and voting-age Gen Z Americans. “While both the 2018 midterm and 2020 presidential elections broke records for youth voter turnout, there was a discrepancy between those who were registered and actual turnout – we need to solve for how to close that gap,” said Brianna Cayo Cotter, SVP of Social Impact for Paramount Media Networks & MTV Entertainment Studios. More than 90% of such voters in each party are pessimistic about the power of the vote to bring about change, and frustrated and angry with what’s happening in Congress. “These directional insights and forthcoming deeper quantitative analysis through our partnership with MTVE will empower so many organizations working nationally and locally to activate young voters across the country,” said Derrick Feldmann, lead researcher and managing director of ACRI and Ad Council Edge. “It’s critical that we understand not only where to reach young voters, but also what messaging will prove to be most effective in the bipartisan effort to mobilize them and ensure their representation during the upcoming midterms.”

 

Aug 16th, 2022

 

A revised and expanded version of the bipartisan Journalism Competition and Preservation Act has been released, addressing dominant online platforms’ power over news organizations. The bill, which removes legal obstacles to news organizations’ ability to negotiate collectively and secure fair terms from platforms that regularly access news content without paying for its value, comes from Representative David Cicilline (D-RI); Senator Amy Klobuchar (D-MN); Senator John Kennedy (R-LA); Representative Ken Buck (R-CO); and Senate and House Judiciary Committee Chairs Dick Durbin (D-IL) and Jerrold Nadler (D-NY).

 

“Our democracy is strongest when a free and diverse press can inform citizens and hold power to account,” said Cicilline. “But today, the free press is in economic freefall—especially local news—thanks to the free-riding of dominant online platforms, who seize news content to enrich their platforms but never pay for the labor and investment required to report the news. We would never expect a platform to stream movies without paying a film’s creators. But because Google and Facebook simply take news content for free and have monopolized the digital advertising market, newsrooms today are in dire economic peril—with regional and local news publishers downsizing or shuttering at alarming pace. The moment is urgent.”

 

 8-15-2022

Another week closer to the Labor Day holiday and the traditional “final push” for the November general election by political campaigns in Texas!

 

We have some interesting poll results to report on not only two statewide campaigns, but also on a couple of issues that will impact the November election.

 

Plus, it appears there will be at least one gubernatorial debate in the offing, but don’t bet on others if Texas Gov. Greg Abbott follows the tried-and-true playbook utilized by Republican gubernatorial candidates since 1998. 

 

All that and more in this edition of the TAB Political Update.

 

POLLS, POLLS POLLS

A new Dallas Morning News-University of Texas at Tyler poll released Sunday has some interesting results for two of this year’s statewide campaigns as well as some voter insight on topics that could impact statewide, congressional, and statehouse races this fall. The poll, conducted Aug. 1-7, surveyed 1,384 registered voters, and has a margin of error of +/- 2.8 percentage points.

 

Gov. Abbott is holding steady from a previous UT Tyler poll and leading former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, by seven percentage points, or 46 percent to 39 percent.

 

O’Rourke’s only hope is to win over independents and women in suburban GOP districts. Is that likely? Depends on who you ask. Kyle Sims, a GOP Collin County precinct chair, recently warned his Facebook followers that “Collin County is turning blue.” The quote comes from an Axios story over the weekend which concluded what we’ve been saying this summer – Abbott is the clear favorite to win, but the gubernatorial race will be closer than it looked back in January because of issues such as abortion, the precarious Texas electric grid, and school safety.  The abortion issue alone will drive voters to the polls during a midterm election, which typically sees a smaller voter turnout. The recent Kansas abortion ban vote was a wakeup call for many in the GOP.

 

The O’Rourke camp has been busy in the past two weeks saturating Facebook with appeals to donate so the campaign can mount a significant TV advertising campaign, something O’Rourke did not do in his failed 2018 U.S. Senate race.

 

Abbott, meanwhile, is firming up his base with news headlines of his continued effort to bus illegal immigrants to East Coast states and the District of Columbia. That, combined with voter questions on the U.S. economy, could bode well for GOP forces this fall. 

 

Embattled Texas Attorney General Ken Paxton, R-McKinney is neck and neck with civil rights attorney Rochelle Garza, D-Brownsville, 34 percent to 32 percent, with 15 percent opting for other candidates and 18 percent undecided. It’s the closest statewide poll result so far this year and would suggest the AG’s race might be the D’s best shot at winning a statewide office this year. 

 

Both Paxton and Garza had to win primary runoff elections to get the nod of their respective parties. Paxton is sitting on a $3.5 million war chest, compared to Garza’s $450,000.

 

Topically, the poll had the following results:

 

• Texans are split over the recent Roe-related SCOTUS abortion ruling, with 49 percent disapproving of the ruling and 42 percent in favor of returning the abortion question back to the states. When last polled in May by the same outfit, 53 percent of Texans disapproved of the decision.

 

• The poll found that 63 percent of Texans don’t think elected officials are doing enough to stop mass shootings. An even higher percentage, 66 percent, felt Gov. Abbott should call a special session to respond to mass shootings.

 

• A majority of Texans polled, 50 percent to 46 percent, did not have confidence in the state’s energy grid.

 

• Sixty-two percent of those polled favored using state funding to send their children to charter or private schools.

 

• Sixty-three precent felt teachers should be allowed to discuss historical examples of discrimination in Texas laws.

 

• Fifty-one percent polled approved of how Gov. Abbott is handling border immigration.

 

• Local broadcast radio and television stations were the main source of news for 23 percent of respondents. Social media and cable news accounted for 19 percent each. National broadcast outlets garnered 21 percent.

 

Here’s the table of recent polling in the Texas gubernatorial contest:

 

GOVERNOR

 

Poll	Accuracy*	Dates	Sample	M of E	Abbott	O’Rourke	Spread
UT Tyler/DMN	B/C	8/1-7	1,384 RV	+/- 2.8%	46%	39%	Abbott +7
UH Hobby Center/YouGov	B+	6/27-7/7	1,169 RV	+/- 2.9%	49%	44%	Abbott +5
UT/TX Tribune/ TX Politics Project	B+	6/16-24	1,200 RV	+/- 2.89%	45%	39%	Abbott +6
CBS News/YouGov	B+	6/22-27	1,075 adults	+/- 4.7%	49%	41%	Abbott +8
Quinnipiac	A-	6/9-13	1,257 RV	+/- 2.8%	48%	43%	Abbott +5
Blueprint Polling	—	6/8-10	603 LV	+/- 3.99%	56%	37%	Abbott +18
UT Tyler/DMN	B/C	5/2-10	1,232 RV	+/- 2.8%	46%	39%	Abbott +7
UT/TX Tribune/YouGov	B+	4/14-22	1,200 RV	+/- 2.83%	48%	37%	Abbott +11
Rice U/TX Hispanic Pol. Foundation	—	3/18-28	1,139 LV	+/- 3.9%	50%	42%	Abbott +8
Texas Lyceum	—	3/11-20	926 RV	+/- 2.83%	42%	40%	Abbott +2
Emerson College /Nexstar/Hill	A-	2/21-22	1,000 LV	+/- 4.2%	52%	45%	Abbott +7
UT Tyler/DMN	B/C	2/8-15	1,188 RV	+/- 2.8%	45%	38%	Abbott +7
Climate Nexus	—	2/1-9	933 RV	+/- 3.3%	45%	40%	Abbott +5
UT/TX Tribune/YouGov	B+	1/28-2/7	1,200 RV	+/- 2.83%	47%	37%	Abbott +10
Quinnipiac	A-	12/2-6	1224 RV	+/- 2.8%	52%	37%	Abbott +15
UT Tyler/DMN	B/C	11/9-16	1106 RV	+/- 3.2%	44.7%	39.3%	Abbott +5.4
UT/TX Tribune/YouGov	B+	10/22-31	1200 RV	+/- 2.8%	46%	37%	Abbott +9
Rice U/TX Hispanic Pol. Foundation	—	10/14-27	1402 RV	+/- 2.6%	43%	42%	Abbott +1
UT Tyler/DMN	B/C	9/7-14	1148 RV	+/- 3.7%	42%	37%	Abbott +5

* as graded by FiveThirtyEight

August 18, 2022 

 

TENTATIVE SEPT. 30 GUBERNATORIAL DEBATE

Texas-based Nexstar Media Group has secured a partial agreement for an Abbott/O’Rourke gubernatorial debate in late September, tentatively set for Sept. 30 in the RGV.

 

The Abbott camp put out a media release confirming his acceptance of a Sept. 30 debate, but O’Rourke’s team has not confirmed the date and wants three more town hall-style debates. Veteran political watchers think that’s unrealistic.

 

Sept. 30 is a Friday night during Texas high school football season.  The debate would be broadcast from the University of Texas Rio Grande Valley in Edinburg and broadcast live on Nexstar’s Texas TV stations. Nexstar journalists from KXAN-TV Austin and KSAT-TV San Antonio would ask the questions along with staff from the Dallas Morning News.

 

Having the event in the RGV would be a win for the GOP and reflects the party’s emphasis on South Texas in 2022 with an eye to flip congressional and statehouse seats.

 

GOP SEEKS TO REMOVE MORE THAN 20 LIBERTARIAN CANDIDATES FROM THE NOVEMBER BALLOT

The Republican Party of Texas has asked the Texas Supreme Court to remove about two dozen Libertarian candidates from November ballot, saying the 23 Libertarian candidates either did not collect the needed petition signatures or pay the needed filing fees. Libertarian candidates traditionally pull some votes away from GOP candidates.

 

The GOP court request involves the Libertarian candidate for Lt. Gov, as well as eight Libertarian congressional candidates, three Texas Senate candidates, and seven Texas House candidates.

 

TAB’S RACES TO WATCH IN NOVEMBER

Here are TAB’s “current” picks for races to watch in November. This list might get an edit or two before Nov. 8. Most veteran political watchers say the GOP is favored to win all the statewide races. There will be a handful of competitive congressional and statehouse districts. The 2022 congressional and statehouse hotspot will be the RGV and South Texas. In 2018 and 2020, it was the DFW area and Houston.

 

Open seats are in purple. Incumbents are highlighted in yellow.

 

STATEWIDE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
Governor	Statewide	Greg Abbott, R-Austin	Robert (Beto) O’Rourke, D-El Paso
Lt. Gov.	Statewide	Dan Patrick, R-Houston	Mike Collier, D-Houston
Atty. Gen.	Statewide	Ken Paxton, R-McKinney	Rochelle Mercedes Garza, D-Brownsville
Ag. Comm.	Statewide	Sid Miller, R- R-Stephenville	Susan Hays, D-Austin
Land Comm.	Statewide	Dawn Buckingham, R-Lakeway	Jay Kleberg, D-Austin
Comptroller	Statewide	Glenn Hegar, R-Katy	Janet T. Dudding, D-Bryan
RRC	Statewide	Wayne Christian, R-Center	Luke Warford, D-Austin

 

CONGRESSIONAL RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
CD 28		Laredo	Cassy Garcia, R-Laredo	Henry Cuellar, D-Laredo
CD 15		RGV / S. TX	Monica De La Cruz, R-Alamo	Michelle Vallejo, D-Mission
CD 34		RGV / S. TX	Mayra Flores, R-Los Indios	Vicente Gonzalez, D-McAllen

 

TEXAS SENATE RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
SD 27		RGV/S. TX	Adam Hinojosa, R-Corpus Christi	Morgan LaMantia, D-Brownsville

 

TEXAS HOUSE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
HD 70	DFW	Jamee Jolly, R-Plano	Michaela Elizabeth Plesa, D-Dallas
HD 112	DFW	Angie Chen Button, R-Richardson	Elva Curl, D-Dallas
HD 134	Houston	Ryan McConnico, R-Houston	Ann Johnson, D-Houston
HD 37	RGV	Janie Lopez, R-San Benito	Luis Villarreal, Jr., D-Harlingen
HD 118	San Antonio	John Lujan, R-San Antonio	Frank Ramirez, D-San Antonio
HD 54	Waco/T/K	Brad Buckley, R-Salado	Jonathan Hildner, D-Killeen

 

REMAINING 2022 POLITICAL DATES

Here are the remaining important political dates for the Nov. 8 general election.

Friday, Sept. 9	FCC political window opens for Nov. 8 General Election
Monday, Oct. 10	Last day to register to vote for Nov. 8 General Election
Tuesday, Oct. 11	State candidates’ 30-Day-Out Report due to Texas Ethics Commission
Saturday, Oct. 15	Federal candidates’ October Quarterly Report due to Federal Elections Commission
Monday, Oct. 24	Early voting begins for Nov. 8 General Election
Thursday, Oct. 27	Federal candidates’ Pre-General Election Report due to Federal Elections Commission
Monday, Oct. 31	State candidates’ 8-Day-Out Report due to Texas Ethics Commission
Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

A couple of quick political notes as we sail toward the weekend. Texas TV stations appear poised to get some more gubernatorial ad spending, and not from Gov. Greg Abbott this time. Another Texas House member has resigned early to take a new job. We have some national political handicapper rating changes for a handful of Texas races. Also in the mix is a new poll in one of TAB’s competitive races to watch list.

 

BETO BUYS TELEVISION 

For the first time in his gubernatorial campaign, former U.S. Rep. Robert (Beto) O’Rourke, D-El Paso, has bought television advertising. O’Rourke’s HQ announced today “reservations in major markets across Texas next week.” Beto’s forces have been active on Facebook soliciting grassroots donations to make the buy.

 

“This people-powered campaign’s TV ads will begin running at a moment when Abbott’s job approval is underwater, his support among Independents has plummeted 13 points since the spring and nearly 60% of voters say the state is going in the wrong direction under his failed leadership,” said the campaign in a media release. It will be interesting to see if broadcast advertising critical of Abbott’s record has an impact on polling in the coming weeks.

 

The O’Rourke campaign isn’t saying how much time they’ve reserved, how much they plan on spending, which markets, or whether it’s a broadcast or cable buy.  So…we spot-checked the online political files of major network-affiliate stations in all 19 Texas TV markets this afternoon.

 

Apart from several Abbott advertising orders this week in multiple markets (including O’Rourke’s hometown of El Paso), we could only find Beto political inquiries dated from today in the Austin and DFW markets. Of course, these are only those stations that have already uploaded the requests for time to their station OPIFs. There are likely more, but they’re not posted yet. We should have a clearer picture by next week of how big a buy (likely not huge) across the state the Beto campaign made.

 

For those wanting to know, Middle Seat Consulting LLC in Washington, DC is directing the buy.

 

Many of you have read recently of the Austin mother who founded the Mothers Against Greg Abbott group, a different MAGA, which has started a grassroots video campaign against the incumbent governor.  The group has racked up a lot of views, but whether it translates to votes in November remains to be seen.

 

None of the major national political handicappers has been swayed by polling this summer which shows the race getting tighter, but not so much as to cause an adjustment in their ratings of the Texas gubernatorial contest (see national handicapper’s table below). In fact, 270 to Win recently upgraded its rating to “Safe R”. It had been “Likely R”.

 

RealClearPolitics notes that its polling average of the Texas gubernatorial contest this year shows Abbott ahead by +6.8%. Veteran Texas political scientists and cognoscenti believe the contest is Abbott’s to lose with O’Rourke capturing about the mid-40s or slightly better in voter percentage.

 

 WHITE LEAVES THE TEXAS HOUSE 

St. Rep. James White, R-Hillister, has resigned early from the Texas House to take the executive director position at the Texas Funeral Services Commission. He was the only Black Republican in the Texas Legislature.

 

White failed in his attempt earlier this year to unseat Agriculture Commissioner Sid Miller in the GOP primary. It is not likely that a special election will be held to fill his seat before the November general election.

 

White’s departure creates a chairmanship vacancy on the Texas House’s Homeland Security and Public Safety Committee which was tasked with finding legislative solutions to prevent future mass shootings.

 

 COMPETITIVE RACES – CD 34 POLL 

We’ve been telling you since last fall not to expect the kind of political year we experienced in 2018 and 2020 because redistricting has created far fewer competitive districts.  Apart from the sparring for statewide jobs, there are only about 10 competitive Texas congressional and statehouse seats.

 

Three of those are congressional seats in South Texas, and one of them, CD-34, saw some polling recently. CD 34 also saw a change in one national political handicapper’s rating of the race after U.S. Rep. Mayra Flores, R-Los Indios, won a June special election this summer to file the unexpired portion of the term left by former U.S. Rep. Filemon Vela, D-Brownsville, when he resigned earlier this year.

 

Politico shifted its rating from “Likely Dem” to “Lean Dem”.  We should note that current CD-15 U.S. Rep Vincente Gonzales, D-McAllen, whom Flores faces in November, did not run in the special election.

 

The late July poll conducted by RMG Research for a term limits special interest group, showed Gonzales leading Flores by four percentage points. The poll’s limited size of 400 likely voters accounts for the high margin of error of nearly +/- five percent.

 

U.S. HOUSE – TX 34
Poll	Dates	Sample	M of E	Flores	Gonzales	Spread
RMG Research	7/23-8/1	400 LV	+/- 4.9%	43	47	Gonzales +4

 

NATIONAL HANDICAPPERS REVISE THEIR RATINGS OF TEXAS RACES

It’s been about two weeks since we last ran the national political race handicappers’ take on Texas congressional races and the gubernatorial contest here.  There have been changes in the gubernatorial  contest and one congressional race. Ratings changes since our last issue with these tables are highlighted in yellow.

 Updated July 26 (Governor), Aug 10 (U.S. House)   

Cook Political Report			House	Governor
RATING STRUCTURE	Solid D, Likely D, Lean D, Toss Up, Lean R, Likely R, Solid R
CD 15	Open Seat	Lean R
CD 28	Cuellar	Toss Up
CD 34	Open Seat	Lean D
Governor	Abbott	Likely R

                                                                                 

Updated Aug 18 (Governor), Aug 10 (U.S. House)   

Sabato’s Crystal Ball / University of Virginia Center for Politics			House	Governor
RATING STRUCTURE	Safe D, Likely D, Leans D, Toss Up, Leans R, Likely R, Safe R
CD 15	Open Seat	Likely R
CD 28	Cuellar	Toss Up
CD 34	Gonzalez	Leans D
Governor	Abbott	Likely R

 

Updated Aug 18 (Governor), Aug 18 (U.S. House)   

270 to Win			House	Governor
RATING STRUCTURE	Safe D, Likely D, Lean D, Toss Up, Lean R, Likely R, Safe R
CD 15	Open Seat	Lean R
CD 28	Cuellar	Tilt D
CD 34	Flores	Lean D
Governor	Abbott	Safe R (Was likely R)

 

Updated July 22 (Governor), Aug 4 (U.S. House)   

Inside Elections			House	Governor
RATING STRUCTURE	Likely D, Lean D, Tilt D, Toss Up, Tilt R, Lean R, Likely R
CD 15	Open Seat	Tilt R
CD 28	Cuellar	Lean D
CD 34	Flores	Likely D
Governor	Abbott	Solid R

 

Updated Aug 18 (Governor), Aug 12 (U.S. House)   

FiveThirtyEight			House	Governor
RATING STRUCTURE	Solid D, Likely D, Leans D, Toss Up, Leans R, Likely R, Solid R
CD 15	Open Seat	Leans R
CD 28	Cuellar	Leans D
CD 34	Flores	Likely D
Governor	Abbott	Solid R

 

Updated Aug 3 (Governor), Aug 9 (U.S. House)   

RealClear Politics			House	Governor
RATING STRUCTURE	Likely Dem, Leans Dem, Toss Up, Leans GOP, Likely GOP
CD 15	Open Seat	Leans GOP
CD 28	Cuellar	Toss Up
CD 34	Flores	Leans Dem
Governor	Abbott	Leans GOP

 

Updated Aug 12 (Governor), Aug 12 (U.S. House)   

P O L I T I C O				House	Governor
RATING STRUCTURE:	Solid Dem, Likely Dem, Lean Dem, Toss Up, Lean GOP, Likely GOP, Solid GOP
CD 15		Open Seat	Lean GOP
CD 23		Gonzales	Likely GOP
CD 28		Cuellar	Toss Up
CD 34		Flores	Lean Dem (Was Likely Dem)
Governor		Abbott	Likely GOP

 

TAB’S RACES TO WATCH IN NOVEMBER

Here are TAB’s “current” picks for races to watch in November. This list might get an edit or two before Nov. 8. Most veteran political watchers say the GOP is favored to win all the statewide races. There will be a handful of competitive congressional and statehouse districts. The 2022 congressional and statehouse hotspot will be the RGV and South Texas. In 2018 and 2020, it was the DFW area and Houston.

 

Open seats are in purple. Incumbents are highlighted in yellow.

 

STATEWIDE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
Governor	Statewide	Greg Abbott, R-Austin	Robert (Beto) O’Rourke, D-El Paso
Lt. Gov.	Statewide	Dan Patrick, R-Houston	Mike Collier, D-Houston
Atty. Gen.	Statewide	Ken Paxton, R-McKinney	Rochelle Mercedes Garza, D-Brownsville
Ag. Comm.	Statewide	Sid Miller, R- R-Stephenville	Susan Hays, D-Austin
Land Comm.	Statewide	Dawn Buckingham, R-Lakeway	Jay Kleberg, D-Austin
Comptroller	Statewide	Glenn Hegar, R-Katy	Janet T. Dudding, D-Bryan
RRC	Statewide	Wayne Christian, R-Center	Luke Warford, D-Austin

 

CONGRESSIONAL RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
CD 28		Laredo	Cassy Garcia, R-Laredo	Henry Cuellar, D-Laredo
CD 15		RGV / S. TX	Monica De La Cruz, R-Alamo	Michelle Vallejo, D-Mission
CD 34		RGV / S. TX	Mayra Flores, R-Los Indios	Vicente Gonzalez, D-McAllen

 

TEXAS SENATE RACES
CONTEST	LOCATION		REPUBLICAN	DEMOCRAT
SD 27		RGV/S. TX	Adam Hinojosa, R-Corpus Christi	Morgan LaMantia, D-Brownsville

 

TEXAS HOUSE RACES
CONTEST	LOCATION	REPUBLICAN	DEMOCRAT
HD 70	DFW	Jamee Jolly, R-Plano	Michaela Elizabeth Plesa, D-Dallas
HD 112	DFW	Angie Chen Button, R-Richardson	Elva Curl, D-Dallas
HD 134	Houston	Ryan McConnico, R-Houston	Ann Johnson, D-Houston
HD 37	RGV	Janie Lopez, R-San Benito	Luis Villarreal, Jr., D-Harlingen
HD 118	San Antonio	John Lujan, R-San Antonio	Frank Ramirez, D-San Antonio
HD 54	Waco/T/K	Brad Buckley, R-Salado	Jonathan Hildner, D-Killeen

 

REMAINING 2022 POLITICAL DATES

Here are the remaining important political dates for the Nov. 8 general election.

 

Friday, Sept. 9	FCC political window opens for Nov. 8 General Election
Monday, Oct. 10	Last day to register to vote for Nov. 8 General Election
Tuesday, Oct. 11	State candidates’ 30-Day-Out Report due to Texas Ethics Commission
Saturday, Oct. 15	Federal candidates’ October Quarterly Report due to Federal Elections Commission
Monday, Oct. 24	Early voting begins for Nov. 8 General Election
Thursday, Oct. 27	Federal candidates’ Pre-General Election Report due to Federal Elections Commission
Monday, Oct. 31	State candidates’ 8-Day-Out Report due to Texas Ethics Commission
Friday, Nov. 4	Last day of early voting for Nov. 8 General Election
Tuesday, Nov. 8	General Election Date

 

 

September 21, 2022

 

Fifth Circuit Court of Appeals Lifts Block on Texas’ Social Media Platform Censorship Law

 

A Texas law that prohibits large social media platforms from censoring users’ viewpoints has been upheld by the Fifth Circuit Court of Appeals.

The court also removed a block on the law’s implementation.

As written, the 2021 law applies to social media platforms with 50 million or more monthly active users.

It requires social media platforms to publish an acceptable use policy and remove content that violates the policy. 

The law also gives the Texas Attorney General or an individual user the right to bring a legal action against a platform. 

NetChoice and the Computer and Communications Industry Association’s court challenge is now likely headed to the U.S. Supreme Court.

Texas GOP lawmakers passed HB 20 by St. Rep. Briscoe Cain, R-Baytown, during a special session, saying large social media platforms are biased against expression of conservative opinions.

Courts had blocked the law from implementation since last year. 

In a 2021 ruling, U.S. District Judge Robert Pitman said social media platforms had a right to moderate content under the First Amendment and deemed aspects of HB 20 “prohibitively vague.”

The Fifth Circuit Court of Appeals disagreed, saying “We reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” and that the plaintiffs want the ability to “muzzle free speech.”

Bill author Cain and others say conservative views are being squashed online without the law, but opponents say it will legalize hate speech.

“Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” said Matt Schruers, president of the Computer and Communications Industry Association. 

“‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

In a www.BroadcastLawBlog.com post this week, attorney David Oxenford with TAB Associate member law firm Wilkinson Barker Knauer said “the Court determined, among other things, that regulating censorship is not subject to the same First Amendment protections as regulating speech and that Texas was justified in concluding the platforms were ‘common carriers’ required to allow all people to access their services without discrimination.  

This decision seems to contradict that of the 11th Circuit finding a similar Florida statute to be unconstitutional.”

So why should broadcasters care about the outcome in this case?

“These contradictory holdings may well lead to the Supreme Court resolving the extent to which states can regulate the content moderation policies of tech platforms,” said Oxenford. 

“Even a limited decision could affect broadcast stations active on platforms like Twitter, Facebook, and Instagram.”

TAB will update broadcasters as court developments warrant.

 

AAF-Amarillo Gov Affairs 2020-2022

Jody Reynolds, Chair

 

Government Report: https://www.aaf.org/AAFMemberR/Efforts/Resources_Publications/Newsletters/Government_Report.aspx

 

July 2020:

 

Sent letter to council members opposing a tax on advertising

 

An Urgent Message from Clark Rector: Executive Vice President-Government Affairs, AAF National AAF DC and National Leaders: Just a quick update on the situation in Washington, DC. At the end of the City Council session yesterday, consideration of the budget was officially tabled until 11:30 am Thursday, July 23 (tomorrow), largely because of the controversy over the proposed ad tax.    The budget staff has been directed to find $18 million in new revenue and/or budget cuts to be able to eliminate the ad tax. While a substantial number of Councilmembers expressed their discomfort with the ad tax, it is no sure thing that the staff’s option will be accepted.   We know there are many advocates urging the Council to accept the budget as is, with no budget cuts and including the ad tax. It remains very important that Councilmembers hear from the advertising and business community about the importance of eliminating the ad tax. The DC Chamber of Commerce has created a handy tool that will allow you to email every Councilmember at one time.   Thank you for your continued help with this important work. — Clark Rector The tax on advertising should be opposed because:   Placing a tax on advertising services and/or placement increases the cost of advertising. Because most clients operate on a fixed advertising budget, they will compensate for the tax by decreasing their advertising purchases. This will have a direct — and negative — impact on the advertising industry, economy, consumers and the District.   Advertising is the primary source of revenue for print and online media and the sole source for broadcasters. A reduction in advertising would inevitably result in a loss of jobs and a decreased ability to provide quality content and programming.   Advertising is the engine that fuels the economy. Less advertising means fewer sales. Fewer sales mean reduced revenue and fewer jobs. Fewer sales also result in less sales tax revenue for the District.    Consumers will suffer. Advertising is an important source of information. In fact, the U.S. Supreme Court in the landmark Virginia Pharmacy case noted that to many people, the information in advertising is more important than news about current issues.   Prices may rise. Studies show that advertising fosters competition and helps lower the price of products and services. Less advertising means less competition.   National advertising dollars will leave District media. Marketers will move dollars to Maryland and Virginia media outlets that reach DC customers.   August 2020:   In a whirlwind three weeks, the District of Columbia City Council adopted and then rejected a 3% tax on all advertising in the city. AAF immediately issued the first of a series of alerts and urged members of AAF DC and Ad 2 DC to contact Councilmembers in opposition to the tax. While the overall budget passed unanimously, a number of Councilmembers did express reservations about the ad tax. A second and final vote was scheduled for two weeks later.   September 2020:   Non-gov Update: https://aaf10.org/speaker-list/ – looking for speaker sharing ops and ideas. Can we share our speaker spreadsheet?

 

Virtual Day on the Hill in February 2021, with a couple of virtual lead up events to educate and prep our members

1.     Workshop #1 – “Texas Lege 101: How the Texas Legislature Works” ·       Mid- to late-October ·       Speaker: Stephanie Chiarello ·       Target price $5/members, $10/guests 2.     Workshop #2 – “Pro Tips: How to talk to Legislators” ·       November (After the election) ·       Panel event with Activist Becky Bullard, Legislator Chief of Staff Max Lars, Lobbyist Annie Spellman ·       Target price $5/members, $10/guests 3.     “AAF Texas Day on the Hill” ·      Tentatively Tuesday, Feb. 2 or Wednesday, Feb. 3, 2021   Talk of a state-wide public service project.   AAF Responds to Texas Privacy Survey AAF and allied associations recently responded to a Texas Privacy Protection Advisory Council survey seeking input regarding possible future privacy laws. The comments reminded policymakers of the many benefits that come with the responsible use of data – to consumers, businesses and the economy. While the ad industry supports effective privacy protections, the comments warned against adopting an overly restrictive approach which could undermine the aforementioned benefits to the detriment of all. Senate Committee Conducts Privacy Hearing On September 23 the Senate Committee on Commerce, Science, and Transportation conducted a hearing entitled, “Revisiting the Need for Federal Data Privacy Legislation.” During the hearing, Sen. John Thune (R-SD) submitted a letter from AAF supported Privacy for America to the record. In response to a question echoing many of AAF and Privacy for America’s concerns related to compliance and consumer protection concerns with multiple state laws Leibowitz expressed support for uniform data protections. Kovacic noted FTC’s ability to research the costs of compliance of laws. Brill added that legislation should include a scale to protect small businesses from burdensome costs.     Prior to the hearing Commerce Committee Chair Roger Wicker (R-MS), and members John Thune (R-SD), Deb Fischer (R-NE), and Marsha Blackburn (R-TN) introduced the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. The legislation aims to provide consumers with more choice and control over their data and directs businesses to be more transparent and accountable for their data practices. The bill would also enhance the FTC’s authority and provide additional resources to enforce the Act.    AAF and Privacy for America support an effective national privacy standard that would protect consumers while allowing consumers and businesses to enjoy the many benefits that come with the responsible use of data. Privacy for America has developed comprehensive principles for such a law and is encouraging lawmakers to adopt many them in any future legislation.

October 2020:   Collected the most recent (2015) Texas economic impact reports: https://www.dropbox.com/sh/zcidi8aludcy3ev/AACS8Sac-YazrnMWFWWPZ3j1a?dl=0 Attended 2 Virtual Day at the TX Capitol planning meetings Organized Government Affairs webinar gathering at Logan’s Roadhouse October 20. 5 participants

November 2020:   Second Government Affairs webinar at Logan’s Roadhouse on November 12. “How to Talk with Your Texas Legislator” 3 participants    May 17 – COG May 18- President Training May 19- Day on the Hill   December 2020:   Texas Day on the Hill virtual event = March 2 Bill Richmond planning lengthy day of opportunities/virtual appointments Should set the stage for future communications options with our legislators   Sent letter to Texas State House Representative offering my assistance in the advertising realm on behalf of Texas. Attempted to contact U.S. Congressman of the 13th District of Texas Mac Thornberry, but he is not accepting email at this time.    Dear Representative Smithee, My name is Jody Reynolds, and I am government affairs chair of  AAF Amarillo. I’m reaching out to introduce myself as a member of the advertising industry in Texas. As we move into the 2021 legislative session, I’d like to offer myself as a resource.   Advertising helps generate $531.5 billion – or 15% – of economic activity in Texas. Every $1 million spent on advertising supports 66 Texas jobs. In fact, advertising touches every part of the Texas economy.   Advertising is a fundamental part of small business strategy, and it is vital to ensuring that economic activity in Texas remains strong. A healthy advertising industry = a healthy economy.   I know you are working to better the lives of your constituents, and as you confront issues this session, please consider me a resource who can answer any questions you have about how issues may impact the advertising industry.   Sincerely, Jody Reynolds   American Advertising Federation AAF Amarillo Board Member

January 2021:   Weekly Day on the Hill planning meetings Each TX club will be asked to sponsor event at $250, which will include 2 seats. We encourage clubs to buy additional seats at a member price (probably $20). Also encouraging additional sponsorships above the original $250. For every $250, you’ll get 2 seats. Jody waiting on Suzanne for green light to start contacting TX clubs now about sponsorships. Jody to contact each TX president to encourage their government affairs chair to contact state reps per this document: https://docs.google.com/spreadsheets/d/1PRTvhHV72sCv8sV0lsKyI6PUSvLzSvJIy6AGBnUcXEQ/edit?usp=sharing Jody to manage the above spreadsheet Jody to contact state reps of other D10 states to ask if they’d like to participate in the Day on the Hill event Sponsorships – looking for opportunities

February 2021:

 

• Continuing weekly Day on the Hill planning meetings
• Working with Bill for green light to contact club leaders for sponsorships, to encourage attendance and to request sponsor ideas
• Attended AAF Government Affairs Committee meeting Feb 10, 2021

 

March 2021:

• Attended Texas Day on the Hill March 2. Learned about and discussed privacy policy, advertising tax and many other issues that could affect our industry. Spoke with representatives and offered our assistance as resources in the advertising industry. Four AAF members attended an in-person meet up.

 

April 2021:

• Quieting down since Day at the Capitol is finished.

   

• Honnah:
  Clark Rector from AAF Nationals Government Affairs sent an email out yesterday and Stephanie sent it on to me, Han and Brady.

Here’s the email:

AAF Texas Leaders,

 

The Texas legislature is currently considering two data privacy bills, HB 3741 and HB 4164 that would place harmful restrictions on the ability of businesses to responsibly use data to market to and communicate with consumers.

 

The Texas Association of Business is seeking signatories for the attached letter to legislature leaders opposing the measures. AAF will sign the letter. If you would like for your ad club to be included, please let me know and send a copy of your logo ASAP.

 

Unfortunately, time is short as the TAB hopes to send the letter on Wednesday, April 7. I apologize for the short notice. Feel free to contact me if you have any questions.

 

Clark

 

Since we have little time to get this done, I’m going to go ahead and send our logo to be included.

 

• Attended AAF’s Government Affairs Committee Meeting with special guest, Emily Karp, Global Product Manager focusing on Ads Privacy for Google.
• Privacy Sandbox

 

June 2021:

 

aaf’s return to advertising day on the hill

The AAF is planning a return to our AAF Advertising Day on the Hill. Slated for Spring 2022, we ask that you take a moment to participate in this one-question survey to help us prepare for the event.

 

October 2021:

 

AAF Day on the Hill is March 16-17.

 

privacy receives congressional attention

 

On Capitol Hill, privacy issues have been the subject of hearings and proposed legislation but little forward action towards enacting a federal privacy bill.   Recent Congressional hearings that have touched on privacy issues have included one in the House Energy and Commerce Committee on Transforming the FTC: Legislation to Modernize Consumer Protection; a Senate Judiciary Committee hearing on Big Data, Big Questions: Implications for Competition and Consumers; and a Senate Commerce Committee hearing on Protecting Consumer Privacy.   Senators Roger Wicker, R-Miss., and Marsha Blackburn, R-Tenn., have introduced the Setting and American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. Focusing on children’s privacy issues, Representative Kathy Castor, D-Fla., introduced the Protecting the Information of our Vulnerable Children and Youth Act. So far in the current session of Congress well over 100 bills have been introduced addressing some form of privacy, Sec. 230 or social networks and platform reforms.   There is near unanimity among lawmakers on both sides of the aisle, consumer advocates and the tech and advertising industries that everyone would be well served by a strong national privacy law. There is even broad agreement on many of the contours such a law should take. Unfortunately, given the many other priorities in Congress (infrastructure, the debt ceiling, the budget, etc.) and an atmosphere of bi-partisan deadlock and mistrust, it does not appear that a national privacy law will be enacted any time soon.   AAF believes a national privacy law would benefit consumers and businesses and is working with the Privacy for America coalition to urge Congress to move forward.

 

November 2021:

aaf day on the hill coming in march

 

The date for AAF’s next Advocacy and Action: Advertising Day on the Hill has been set for March 16-17, 2022 in Washington, DC. Advertising professionals from across the country will gather to get a briefing on the important issues facing the advertising industry and go to Capitol Hill to educate lawmakers and their staffs about those issues and the vital role that advertising plays in driving the U.S. economy.   Registration is open and the cost is only $50. Information on a hotel room block will be available soon.   Many things have changed in Washington, DC since our last event, but one thing that has not—and will never—change is the importance of making our voice heard on the issues that impact how advertising industry professionals do their jobs.   Register now and plan to be in Washington, DC for AAF’s Advocacy and Action: Advertising Day on the Hill. Please contact AAF’s EVP, Government Affairs, Clark Rector if you have any questions. Attended Texas Day at the Capitol planning session Nov 19 December 2021 Emailed Ted Cruz and John Cornin offices regarding Build Back Better concerns: On behalf of the undersigned associations which represent the millions of legitimate businesses that provide the products and services consumers want and the jobs that power America’s economy, we write to oppose the inclusion of Sections 31501 and 31502 in H.R. 5376, (aka the “Build Back Better Act”). These provisions, which create new policy – an unprecedented and unjustified broad civil penalty authority under Section 5 of the Federal Trade Commission (FTC) Act that does not presently exist in the law – would constitute a major policy shift in FTC enforcement authority that unfairly erodes due process and will impose significant new costs on companies that are acting in good faith when serving consumers.    The business community respectfully requests that these provisions be removed from the reconciliation bill on the following grounds:   Faulty CBO Score. The Congressional Budget Office’s (“CBO”) projected revenue from the FTC penalty provisions is based on unconstitutional presumptions of guilt. FTC and CBO estimates presume that companies will violate the FTC Act and the FTC’s authority under this section to impose fines in the first instance of an alleged violation will bring in $3.6 billion in revenue for privacy violations alone, leaving aside other actions that could be brought by the Commission under this new penalty authority. Not only is the revenue estimate inappropriately relying on a presumption of guilt (instead of the constitutional presumption of innocence) for defendants, but the scoring methodology also represents a stark departure from the FTC practice of not projecting future violations.   The Provisions Violate the Byrd Rule. The projected revenues from the anticipated use of the new civil penalty authority should be considered “extraneous provisions” because they are “merely incidental to the non-budgetary components of the provision,” which is one of the principal factors under the Byrd Rule for removing a provision from a reconciliation bill. The non-budgetary components of the provision are the entire provision itself, which would significantly alter the enforcement authority of a federal enforcement agency by granting a new, permanent civil penalty authority to enforce all alleged unfair and deceptive acts or practices under Section 5 of the FTC Act—broad new authority that Congress has never granted the agency.    The Provisions Stifle Innovation. The new civil penalty authority will create a significant chilling effect on industry innovation in the provision of goods and services. The mere threat of being levied a very costly fine (up to $43,792 per violation per affected consumer) by the FTC in an alleged first instance of an FTC Act violation will significantly harm economic growth and competition because companies will operate under the constant pressure of potential arbitrary enforcement without sufficient due process by an agency that has not fairly given it prior notice as to what specific business conduct or practice constitutes a violation of the FTC Act in order for that business to avoid such a fine.    Congress specifically balanced its current enforcement regime to prevent unfair enforcement under the FTC Act’s vague and broad prohibition on unfair and deceptive practices. The approach proposed in H.R. 5376 permanently removes statutory due process protections. At a time when the Commission has demonstrated willingness to exceed its authority, such a policy change would be highly detrimental to legitimate businesses because the FTC would become the lawmaker, prosecutor, judge, and jury all at once, where businesses may never know which of their practices may later be adjudged to be illegal. The threat will be particularly severe for smaller companies that lack the legal expertise and capital to hire outside counsel to contest the FTC’s proposed settlements backed by the threat of potentially bankrupting fines regardless of whether they believe their activities are completely lawful.    In conclusion, for all the above reasons, the FTC civil penalty authority should not be granted by Congress as part of a reconciliation bill, and it should be removed from H.R. 5376 by the Parliamentarian under the Byrd Rule. The overall negative impact of this provision on our national economy and American jobs, coupled with projected legal expenses and lost revenue chilled by a lack of due process, will cost U.S. industry and American consumers billions of dollars that far exceed the revenue projected by FTC and CBO.    We respectfully urge you to preserve the benefits consumers reap from continued innovation in the delivery of goods and services and protect the due process of legitimate businesses from an unbounded agency by opposing the proposed FTC civil penalty authority provisions in H.R. 5376.

 

EMAIL FROM CLARK RECTOR DEC 17, 2021

 

December 15, 2021 TO THE MEMBERS OF THE UNITED STATES SENATE: On behalf of the undersigned associations representing millions of legitimate businesses that seek to serve consumers and create jobs, we oppose the inclusion of Sections 31501 and 31502 in H.R. 5376, the “Build Back Better Act.” These provisions would create an unprecedented and unjustified broad civil penalty authority under Section 5 of the Federal Trade Commission (FTC) Act that does not presently exist in the law. This would constitute a major policy shift in FTC enforcement authority that would unfairly erode due process and would impose significant new costs on companies acting in good faith when serving consumers. The business community respectfully requests that these provisions be removed from the reconciliation bill on the following grounds: • Faulty CBO Score. The Congressional Budget Office’s (“CBO”) projected revenue from the FTC penalty provisions is based on unconstitutional presumptions of guilt. FTC and CBO estimates presume that companies will violate the FTC Act and the FTC’s authority under this section to impose fines in the first instance of an alleged violation will bring in $3.6 billion1 in revenue for privacy violations alone, leaving aside other actions that could be brought by the Commission under this new penalty authority. Not only is the revenue estimate inappropriately relying on a presumption of guilt (instead of the constitutional presumption of innocence) for defendants, but the scoring methodology also represents a stark departure from the FTC practice of not projecting future violations.2 • The Provisions Violate the Byrd Rule. The projected revenues from the anticipated use of the new civil penalty authority should be considered “extraneous provisions” because they are “merely incidental to the non-budgetary components of the provision,” which is one of the principal factors under the Byrd Rule for removing a provision from a reconciliation bill.3 The non-budgetary components of the provision are the entire provision itself, which would significantly alter the enforcement authority of a federal enforcement agency by granting a new, permanent civil penalty authority to enforce all alleged unfair and deceptive acts or practices under Section 5 of the FTC Act—broad new authority that Congress has never granted the agency. • The Provisions Stifle Innovation. The new civil penalty authority will create a significant chilling effect on industry innovation in the provision of goods and services. 1 https://www.cbo.gov/publication/57623 2 Asked by the House Commerce & Consumer Protection Subcommittee Ranking Member whether the Federal Trade Commission “was able to predict how many violations would occur each year,” former Democratically appointed Director of Consumer Protection Jessica Rich answered a resounding “No.” https://www.youtube.com/watch?v=IhNbL12rjqw (December 9, 2021). 3 See text of Byrd Rule in Appendix of The Budget Reconciliation Process: The Senate’s “Byrd Rule”, Congressional Research Service, November 22, 2016, accessible here: https://www.senate.gov/CRSpubs/95a2a72a-83f0-4a19-b0a8- 5911712d3ce2.pdf The mere threat of being levied a very costly fine (up to $43,792 per violation per affected consumer) by the FTC in an alleged first instance of an FTC Act violation will significantly harm economic growth and competition because companies will operate under the constant pressure of potential arbitrary enforcement without sufficient due process by an agency that has not fairly given it prior notice as to what specific business conduct or practice constitutes a violation of the FTC Act in order for that business to avoid such a fine. Congress specifically balanced its current enforcement regime to prevent unfair enforcement under the FTC Act’s vague and broad prohibition on unfair and deceptive practices.4 The approach proposed in H.R. 5376 permanently removes statutory due process protections. At a time when the Commission has demonstrated willingness to exceed its authority, such a policy change would be highly detrimental to legitimate businesses because the FTC would become the lawmaker, prosecutor, judge, and jury all at once, where businesses may never know which of their practices may later be adjudged to be illegal. The threat will be particularly severe for smaller companies that lack the legal expertise and capital to hire outside counsel to contest the FTC’s proposed settlements backed by the threat of potentially bankrupting fines regardless of whether they believe their activities are completely lawful. In conclusion, for all the above reasons, the FTC civil penalty authority should not be granted by Congress as part of a reconciliation bill, and it should be removed from H.R. 5376 by the Parliamentarian under the Byrd Rule. The overall negative impact of this provision on our national economy and American jobs, coupled with projected legal expenses and lost revenue chilled by a lack of due process, will cost U.S. industry and American consumers billions of dollars that far exceed the revenue projected by FTC and CBO. We respectfully urge you to preserve the benefits consumers reap from continued innovation in the delivery of goods and services and protect the due process of legitimate businesses from an unbounded agency by opposing the proposed FTC civil penalty authority provisions in H.R. 5376. Sincerely, 10th District American Advertising Federation (Arkansas, Louisiana, Oklahoma, Texas) Ad2 Houston Ad2 SoCal American Advertising Federation American Advertising Federation Amarillo American Advertising Federation Birmingham American Advertising Federation Austin American Advertising Federation Corpus Christi American Advertising Federation Dothan 4 “The compromise was you’ve got to do what the FTC says, but before it tells you to do something, it will find that what you’re doing now is wrong.” AMG Capital Management, LLC v. Federal Trade Commission, J. Breyer during Oral Argument, No. 19- 508 (2021) (emphasis added). American Advertising Federation Dubuque American Advertising Federation Greater Flint American Advertising Federation Houston American Advertising Federation Midlands American Advertising Federation Mobile Bay American Advertising Federation Montgomery American Advertising Federation Nebraska American Advertising Federation New Mexico American Advertising Federation Northeast Louisiana American Advertising Federation Roanoke American Advertising Federation South Dakota American Association of Advertising Agencies (4A’s) AFSA—American Financial Services Association AHLA—American Hotel & Lodging Association American Escrow Association American Transaction Processors Coalition Alabama Retail Association ANA-Association of National Advertisers Arizona Chamber of Commerce Association of Test Publishers California Retailers Association Connecticut Business & Industry Association (CBIA) Connecticut Retail Merchants Association Consumer Consent Council Consumer Data Industry Association Council for Responsible Nutrition DSA—Direct Selling Association Electronic Transactions Association Florida Retail Federation FMI—The Food Industry Association Georgia Retailers Greater North Dakota Chamber Idaho Advertising Federation Idaho Falls Advertising Federation Illinois Chamber of Commerce Indiana Retail Council Innovative Payments Association Insights Association International Franchise Association Interactive Advertising Bureau (IAB) Iowa Retail Federation Kansas Retail Council Kentucky Retail Federation Louisiana Retailers Association Mason City (Iowa) Chamber of Commerce Maryland Retailers Association Michigan Retailers Association Missouri Retailers Association Montana Retail Association National Business Coalition on E-Commerce & Privacy National Council of Chain Restaurants National Retail Federation National Restaurant Association Nebraska Retail Federation NetChoice New Hampshire Retail Association New Jersey Retail Merchants Association North Carolina Retail Merchants Association North Dakota Retail Association Ohio Council of Retail Merchants Pennsylvania Retailers Association Professional Association for Customer Engagement Real Estate Services Providers Council Retail Council of New York State Retail Merchants of Hawaii Retailers Association of Massachusetts Security Industry Association South Carolina Retail Association South Dakota Retailers Association Upstate (South Carolina) Chamber Coalition U.S. Chamber of Commerce Utah Retail Merchants Association Vermont Retail & Grocers Association Virginia Chamber of Commerce Virginia Retail Federation Washington Retail Association West Virginia Retailers Association 

 

JANUARY 2022

 

Thank You For Contacting My Office

Senator Cornyn <SenateWebmail@cornyn.senate.gov>	Tue, Jan 4, 5:17 PM (15 hours ago)

 

Dear Jody: Thank you for contacting me regarding the federal budget. I appreciate having the benefit of your comments. The Fiscal Year (FY) 2022 budget resolution, which passed the Senate on August 11, 2021, contains a wish list of partisan priorities including expanding welfare programs, job-killing tax hikes on small businesses and individuals across the country. Instead of providing fiscal discipline, this budget amounts to a reckless tax-and-spending spree that will unlock a massive expansion of the federal government. It will also drive up consumer prices, undermine wages earned by hard-working taxpayers, and adds trillions to the federal debt over the next ten years. Because this budget jeopardizes future economic growth and the financial well-being of millions of Americans, I voted against it. Because Congress did not complete its work on the twelve FY2022 appropriation bills, it was necessary to pass the Extending Government Funding and Delivering Emergency Assistance Act (P.L. 117-43), and most recently, the Further Extending Government Funding Act (P.L. 117-70). P.L. 117-70 was signed into law on December 3, 2021, and provides the necessary resources to fund border security, veteran affairs, and the military through February 18, 2022. I have consistently supported legislation which would add an amendment to the U.S. Constitution to require the federal government to balance its budget each year. In addition, a Balanced Budget Amendment would make it more difficult for the federal government to continue its reckless spending by requiring a two-thirds vote of the U.S. House and Senate before increasing taxes or the debt limit. Families across Texas have to balance their budgets and make tough choices to live within their means. There is no reason the federal government should operate any differently. I appreciate having the opportunity to represent the interests of Texans in the United States Senate, and you may be certain that I will keep your concerns in mind. Thank you for taking the time to contact me. Sincerely, JOHN CORNYN United States Senator

January 2022

• Day on the Hill is going virtual only. Registration is open and the cost is only $25. Be on the lookout for more details soon about AAF’s Virtual Advertising Day on the Hill.

 

Day at the Capitol Watch Party March 2 at Education Credit Union 

 

Stephanie, Jody, Lindsey, Blake, Han

 

Texas AAF Day on the Hill