While recently uncovered documents show members privately confessed their efforts regulating political speech were “not meaningful,” a report from a select legislative committee was nonetheless used to justify an attempt to expand the power of the Texas Ethics Commission (TEC).

During the 2015 legislative session, State Rep. Sarah Davis (R–West University Place) pushed several bills through the Texas House that would have increased the power of the TEC, a rogue state agency that has targeted conservative groups and churches in recent years.

As she moved the bills, Davis was lauded by House leadership as an expert because she had co-chaired an interim committee to study the state’s so-called “ethics” laws.

Yet records uncovered by Texas Scorecard reveal that the select committee’s members confessed privately their efforts were illegitimate and their report was “not meaningful.”

The select committee was formed because of legislation passed in 2013 – Senate Bill 1773. That measure required House Speaker Joe Straus and then-Lt. Gov. David Dewhurst to appoint members from the Texas House and Senate to a joint interim committee to study the state’s “ethics” laws. Those laws largely do not address “ethics,” but instead regulate campaigns and lobbying as well as citizens’ speech regarding elections, legislation, and elected officials.

A study of the state laws, which were adopted decades ago and are now out-of-step with a number of federal court rulings regarding the First Amendment, is needed so the state can cease violating the civil rights of Texas citizens. (And so that taxpayers can cease funding litigation defending the unconstitutional laws.)

Unfortunately, Straus and Dewhurst ignored their responsibility. The two presiding officers failed to appoint the select interim committee for nine months and then stacked the committee with lackeys hostile to pro-citizen reform.

Once appointed, the committee wasted several months before meeting. And they then only met one time. In the end, more than two weeks after it was due, the committee delivered a report that contained only two or three pages of real content.

Even though Davis would hold herself out as an expert on ethics laws during the session, privately committee members acknowledged the effort had been a joke.

Former Texas Supreme Court Chief Justice Tom Phillips, who was appointed as a “citizen” member of the select committee, complained that the report was “very vague on what we heard or what we propose to do.” He further complained that the report did not mention that he was unable to attend the single hearing the committee had.

Former TEC Chairman Jim Clancy attacked the report for failing to target what he called “dark money political corporations.”

“Dark money” is a term invented by the left-wing Brennan Center to attack constitutional privacy protections that shield civic organizations from being forced to expose their donors to harassment and intimidation solely as a result of the organization’s choice to speak out on issues related to campaigns, legislation, and elected officials.

Clancy also complained the report failed to support his proposal to eliminate judicial review of the TEC’s decisions in sworn complaint cases. (Of course, such a change would cause the TEC’s process to be declared unconstitutional.)

Clancy concluded his email to the committee saying that he regretted the committee did not have time to present a meaningful report to the legislature.

In a separate email, Phillips elaborated on his own complaints, saying he wanted “the report to say [he] took no part in the hearing or subsequent deliberations (assuming there were any).” Phillips noted committee members “were not polled about their availability on multiple dates” and instead, there was a “take it or leave it date … transmitted to [committee members] on ridiculously short notice.”

Phillips agreed with Clancy that the report was “not meaningful.”

Another committee member chimed in, saying the report “says NOTHING” and that a casual reader “can’t tell what any witness said or what [the committee] thinks about the recommendations. The committee member concludes that the vague nature of the report was “intentional.”

Clancy, Phillips, and State Sen. Carlos Uresti refused to sign the report.

Despite the committee’s failure to do its duty or produce a meaningful report, Davis went on to carry legislation in the House that would have increased the power of the TEC to go after Texas citizens. The bills were advanced out of the House by Speaker Joe Straus but most were killed in the Texas Senate.

In an embarrassing moment during floor debate, Davis’s ignorance was exposed as she was forced to call out to Empower Texans outside counsel Trey Trainor, who was sitting in the House gallery, for help answering a simple question over how many commissioners served on the Texas Ethics Commission.

The committee’s discussions concluded with an ironic and disturbing exchange in which former Chief Justice Phillips exposed his inability to understand the complications of state ethics laws as well as his fear of harassment at the hands of the TEC.

Phillips asked whether his appointment to the committee would require him to file a financial disclosure with the TEC.

The committee’s clerk responded that he would look into it. Phillips answered, saying he hoped he didn’t have to file a disclosure.

“[T]he Ethics Commission is a very quirky body and I don’t want to run afoul of them if I can avoid it,” said Phillips.

Texas has “ethics” laws that force citizens to hire a lawyer in order to engage in fundamental speech about campaigns, elections, legislation, and elected officials. Those laws are backed with criminal penalties and are enforced by the Texas Ethics Commission, an agency that operates in the dark without due process.

Our laws are so complicated that even a former Chief Justice of the Texas Supreme Court cannot understand them and fears “running afoul” of the Texas Ethics Commission if he fails to file the right documents.

Texans should demand a repeal of unconstitutional “ethics” laws. In order to restore free speech in Texas, the Texas Ethics Commission needs to be fundamentally reformed or abolished.

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.


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