All it took was one overzealous and partisan district attorney to be teamed up with one dishonorable judge in Madison for Wisconsin conservative activists to see militarized police teams bust through their doors in pre-dawn raids. If the Texas House has its way, these types of abuses could soon be coming to Texas.

The Wisconsin “John Doe Investigation” story has been profiled by National Review and the Wall Street Journal and is currently being reviewed by the courts. It’s known only because Eric O’Keefe, a brave conservative activist from Wisconsin, was willing to violate an abusive gag order and tell the world what had taken place. Because of O’Keefe, the world learned that a partisan district attorney, motivated by animus towards Wisconsin Gov. Scott Walker and his public-sector union busting reforms, launched a secret investigation several years ago in an attempt to convict Walker’s supporters.

The investigation, which alleged that conservative activist groups had “coordinated” in support of Walker’s campaign, ultimately culminated in a series of pre-dawn police raids on the homes of O’Keefe and other activists. The targets of the invasions were placed under a gag order as their computers, cell phones, records, and other personal items were confiscated by police in an effort to build a case against them.

Last week, the Texas House, led by Republican members upset over increasing public scrutiny of their records, passed legislation designed to give the Texas Ethics Commission and the liberal Travis County DA’s office Wisconsin-esque authority to go after the conservative grassroots.

As passed, House Bill 22 contains a provision that would give state employees at the Texas Ethics Commission, instead of its appointed commissioners, the authority to refer matters under the TEC’s investigation to law enforcement. These referrals could take place simultaneously with the TEC’s own administrative inquiry without any notice to the public or to the accused.

The provision, if implemented, would be extraordinarily abusive. When the commissioners of the Federal Elections Commission vote to refer a matter to law enforcement, they shelve their own investigation for an important reason. In criminal investigations, the accused has the right to remain silent and not testify without consequence. However, in an administrative proceeding, a commission is allowed to make an evidentiary finding against a respondent who refuses to testify. By referring matters to law enforcement mid-stream, the TEC could effectively shut off a respondent’s ability to testify before the commission without waiving their Fifth Amendment rights in the simultaneous criminal investigation.

Sounds pretty unconstitutional, but then again, as Paul Hobby, the Straus-appointed Democrat Chair of the TEC, once said, the TEC “isn’t there to call constitutional balls and strikes.”

Conservative stalwart State Rep. Bill Zedler (R–Arlington) put forward an amendment to HB 22 that would have required TEC commissioners to vote in public before referring a matter to law enforcement. Zedler argued that the amendment would protect the accused by forcing the commissioners to agree publicly on their course of action and by letting the accused know of the escalation in their case. Zedler argued that secrecy in the criminal referrals would allow the scandal in Wisconsin to be recreated here in Texas.

Straus-lieutenant State Rep. Larry Phillips (R–Sherman) defended the provision by arguing that the Ethics Commission needed the authority to refer cases even before they were confident that a crime had taken place. He argued that secrecy in the referral would protect the accused from having their reputation tarnished if law enforcement later decided that no crime had occurred.

This is precisely the same type of shoddy reasoning underlying the Wisconsin “John Doe” law. There the secrecy led to massive abuse, not protection of the accused.

The Zedler amendment was defeated by a vote of 50-91 along with several other TEC reforms. HB 22 passed the House by a margin of 109-31. The measure now proceeds to the Texas Senate where the body will be able to decide whether they want to put Austin on a path towards Madison’s abuses.

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.