This week the Texas Ethics Commission revised its budget request to ask lawmakers next session to give the agency even more tax money to defend itself in court. The move comes after the commission squandered its current appropriation defending laws the commissioners themselves concede are unconstitutional.

TEC Chairman Chase Untermeyer is complaining that he cannot trust Attorney General Ken Paxton to defend the agency in future lawsuits, and so he is asking for lawmakers to double the appropriation for the agency to hire outside counsel. But the only time Paxton has refused to defend the TEC has been when the commission itself conceded they were in the wrong.

In February, Briscoe Cain, the Republican nominee in Texas House District 128, sued the TEC over a law enforced by the commission that purported to ban Texans from using video of the Texas House or Senate floor in political campaigns. The suit drew praise from national commentators and government watchdogs on the left and the right.

When Cain’s suit was filed, Paxton made the decision not to defend the clearly unconstitutional law in court and authorized the commission instead to hire outside lawyers.

At the time, experts noted that it was unusual but not unprecedented for the attorney general to refuse to represent a state agency when he thought their actions were clearly unconstitutional.

Perhaps Paxton abstained because even TEC Chairman Paul Hobby conceded the law in question was unconstitutional, calling it “incumbent protection, first and last.” Current TEC Chairman Chase Untermeyer has also agreed that the law is likely unconstitutional.

Despite admitting in court that the law banning the use of House and Senate video in campaigns violated the United States and Texas Constitutions, TEC commissioners have refused to settle the case with Cain and are continuing to rack up legal bills defending the law.

A court has issued a temporary injunction declaring the video ban unconstitutional and the case will go to trial in December.

This is how the Texas Ethics Commission uses dollars appropriated for outside counsel – to defend laws even they admit violate the constitution.

The TEC would not need for taxpayers to bail them out if they would simply acknowledge that, just like every other part of the government, they too are subject to constitutional restraints. Until they acknowledge there are limits on their power, or until they are reined in, the TEC will continue to waste tax dollars defending the indefensible.

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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