After being told two weeks ago by a federal judge that subpoenas issued by the Texas Ethics Commission were “overbroad” and “absurd,” Empower Texans was back before the Commission today for another pre-trial conference. The conference was part of continued proceedings stemming from two ethics complaints filed by liberal Republican politicians upset with our work. Taking the side of the two politicians and their lobbyist ally, the commission previously voted to issue intrusive subpoenas seeking the names of our donors and sources, amongst other constitutionally protected materials. But after Empower Texans took the issue to federal court, a federal judge told the commission that the subpoenas would not be acceptable in any courtroom in America. So, as expected, the Ethics Commission voted today to rescind the subpoenas that they previously fought to enforce. But that was the only thing done or said by the commission that was expected.

Despite all of this, the commission voted to double down and issue new subpoenas that are even more broad than the first set. To comply with the new subpoenas would require hundreds or perhaps thousands of hours of work and would require Empower Texans and its President Michael Quinn Sullivan to delve through just about every computer file and every scrap of paper in our office. Our outside counsel, Joe Nixon, protested that the new subpoenas were just as unconstitutional as the first set thrown out in federal court.

John Moore, a long-time bureaucrat and newly hired “Director of Enforcement” for the Texas Ethics Commission addressed the commissioners in response to Nixon’s concerns. Visibly irate at Nixon’s protests, Moore made some shocking admissions of his attitudes regarding the commission’s power. He literally accused Michael Quinn Sullivan and his attorneys of hiding behind the constitution. He said that, at the Ethics Commission, because it was an administrative hearing, “the constitutional issues don’t matter.” He further informed the commissioners that they were “not here to determine the constitutionality” of the subpoenas or their investigation.

Moore tacitly admitted he and the commission staff had prejudged the complaints. He said the commission staff had already decided that Empower Texans is a PAC and subject to all the reporting requirements of a PAC. Moore declared this position despite the fact the commission already held that there is insufficient evidence of any wrongdoing by Empower Texans. Likewise, Moore personally attacked Michael Quinn Sullivan, alleging that “Mr. Nixon’s client doesn’t want to follow the law.” Empower Texans has long asserted that the Commission has prejudged the complaints against us, but today the commission staff admitted to it.

Reviewing the revised subpoenas for the first time, Chairman Jim Clancy acknowledged they were overbroad but artfully avoided the term, instead referring to them as “comprehensive.” Despite these stated concerns, and despite the fact the commissioners had not even read the subpoenas, the commissioners voted unanimously to impose them on Empower Texans.

In addition, the Commission has now officially taken the position that there can be no appeal from the subpoenas except to the Commission itself and that if Empower Texans or Sullivan refuse to comply with the subpoenas, the next step will be for the commission to seek to hold Sullivan and Empower Texans in contempt of court. That means the Commission is prepared to enforce the subpoenas by asking a court to throw Michael Quinn Sullivan in jail.

The Texas Ethics Commission has made clear that it is a rogue agency. At the same time that it is pursuing constitutionally protected records from Empower Texans in a contested case hearing, it is attempting to enact rules (a new one was published today) which would allow the commission to audit organizations which draw their ire. All the while, the commission is acting without the statutory authority to enact the rules or take the actions which was denied them when Governor Rick Perry vetoed Senate Bill 346. The legislation was designed to allow the commission to go after conservative groups.

Texas has a state agency that is acting outside and above the law. The Commission has been told by its staff that it need not consider the Constitution a hurdle in pursuing conservative organizations. The Commission appears prepared to attempt to jail a conservative activist for asserting his constitutional rights. If the Texas Ethics Commission is not stopped, this case has all the makings necessary for it to see the inside of the United States Supreme Court.

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.