On Tuesday, Texas House State Affairs Committee Chairman Byron Cook penned a letter to Texas Ethics Commission Chairman Jim Clancy. The letter, signed by eleven of thirteen members of Cook’s committee, asked Clancy to adopt a rule effective January 1, 2015 to require disclosure of donors to non-profits if those non-profits use donor funds to make direct (ie. independent) campaign expenditures. The letter stated Cook’s belief that the commission already had the statutory authority to adopt such a rule.

The letter drew a strong rebuke today from Representative John Smithee, a member of the committee, who along with former speaker Tom Craddick abstained from signing the letter.

In his response, Smithee noted that he could find no statutory authority for the Commission to adopt the rule described by Cook. He also noted that adopting such a rule would represent the historically unprecedented act of a state agency, in effect, overriding a gubernatorial veto. Last session Democrats and a minority of Republican legislators pushed through Senate Bill 346, which would have required the disclosure of donors to politically active non-profits (other than unions).

Governor Perry vetoed that legislation, noting that he believed the bill would have a chilling effect on the rights to freedom of association and freedom of speech.

Along with commenting on the substantive nature of such a rule change and how the rule-adoption process is ill-suited to such a change, Smithee also noted the peculiar timeline laid out by Cook in his letter. Despite the fact that the next election to be subject to the proposed new rule would not take place until March of 2016, Cook demanded action by the Ethics Commission by January 1st, 2015. Smithee argued that there simply was no urgency which would justify the agency acting before legislators had an opportunity to work on the issue during the 84th legislature.

But there is urgency for Byron Cook, for one or both of two reasons.

First, Cook’s decision to punt the issue to the Ethics Commission is no doubt an admission that he sees the prospects for donor intimidation legislation waning as he moves into the next legislature. With conservative, liberty-minded legislative and state-wide candidates rising in the current election, those who would abuse government power for their own means must be aware that some amount of that power is slipping from their grasp. Cook knows that the only way he can move legislation designed to target outspoken non-profits next session is with the assistance of the Ethics Commission.

Second, Cook and his allies have shown immense confusion over what activities actually constitute “direct campaign expenditures.” Recently, TFR’s decision to mail issue-advocacy scorecards months before filing for elections even began drew complaints that such mailers were “direct campaign expenditures.” Cook’s January 1st deadline invites the suspicion that he wants the donor disclosure rule in place so that he can use it as a weapon against those who speak out against his actions during the next session, not just after it.

Any decision by the Texas Ethics Commission to act on Byron Cook’s letter would be an unconstitutional one, which would ultimately be overturned by the courts at the Commission’s expense. Rather than again demonstrating that they are a rogue agency which acts outside the proper legal channels, the Texas Ethics Commission would be wise to listen to Representative Smithee and not Representative Cook.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.