When Empower Texans President Michael Quinn Sullivan went before the Texas Ethics Commission last month on charges that he had failed to register as a lobbyist, much of the testimony hinged on whether Sullivan qualified for the media exception to the lobby law as an employee of Empower Texans. Much of the print media scoffed at the concept, reasoning that being a part of the media was a status that simply isn’t conferred on groups like Empower Texans that advocate for policy positions.

Expert Witness Mark Lisheron, an editor with Watchdog.org and a former Austin American Statesman reporter, however, was clear that Empower Texans was “bona fide media” and that the organization’s editorial bent did not affect the analysis of that fact. Lisheron reasoned that “media” was an activity, not a class, and that many types of groups and individuals can and do engage in media activities.

(Of course, Attorney Joe Nixon argued that based on clear precedent from Citizens United, an exemption for the “media” – however defined – that did not exempt other corporations that engage in the same sort of activities was unconstitutional.)

But the definition of who is and isn’t media isn’t the part that should be particularly concerning to traditional print journalists.

TEC staff made it clear that they weren’t just setting up the Commission to be the final arbiter of who is and isn’t media in Texas. They are setting up the Commission to determine what is and isn’t media activity.

In his closing argument, Commission staff attorney Ian Steusloff stated:

“You’re only exempt if you’re communicating in the form of news or if your actions are the dissemination of news, letters to the editor, editorials, or other comment that are distributed in the ordinary course of business.”

So, not only does a member of the “media” have to fit the commission’s definition of “bona fide media,” they are only allowed to retain that exemption if they limit their activities to that listed above. Whatever one thinks of the merits of the lobby law and its exceptions, there are a lot of activities that a journalist could engage in that don’t necessarily fit into the definition of “other comment … distributed in the ordinary course of business.”

And the press should remember, complaints at the Texas Ethics Commission are initiated by political opponents, and the Commission claims that they must investigate the complaint if it meets the form requirements.

With the standard articulated by the Commission, the only way a journalist could safely know that their activities would not be prosecuted by the Commission staff for years would be to submit a request for an advisory opinion every time they wanted to do something new or innovative.

That, of course, would effectively amount to a prior restraint on protected speech, one of the things that virtually everyone agrees the First Amendment was designed to prohibit.


If this concern sounds like an abstraction, it is not. Recently the Corpus Christi Caller-Times ran an editorial entitled “Public’s right to know is a worthy legislative agenda.” In the editorial the Caller-Times set out four specific legislative priorities for the upcoming session, and also talked about the author’s attendance of a Texas Press Association banquet where awards were handed out to four state legislators for their work “defending the people’s right to a free flow of their information.”

Now, under the standard argued by Steusloff, the publishing of the article probably wouldn’t get anyone in hot water. (Though, of course, the commission staff did subpoena a year’s worth of editorials from the Empower Texans’ website).

But do journalists really think they should have to pay the state $750 and file reports for the privilege of talking to a legislator in person about those four priorities? What if they are talking to a source at the legislature and the topic comes up? Should members of the press run away?!

And as for that Texas Press Association banquet, I’m willing to bet that Texas Press Association registered lobbyist Donnis Baggett wasn’t the only one who helped organize it, or who spoke with the four legislators at it. In fact, under the TEC’s standard, it would appear that a speech by the Editor of the Caller-Times at that banquet about the very topic of his editorial might fall under regulation.

It is also worth a reminder that the Commission staff made a big to-do over Sullivan handing out “Taxpayer Champion” awards to members who scored highly on the Fiscal Responsibility Index. Apparently those Texas Press Association awards aren’t so safe after all.

Vague rules in the world of lobby regulation and campaign finance regulation threaten fundamental rights by creating unpredictability and uncertainty. This problem is magnified when such laws are prosecuted by amateurs in front of complacent political appointees in the absence of meaningful due process protections. Such an arrangement becomes truly detestable when it is initiated solely by political opponents who want to stifle speech.

Michael Quinn Sullivan and Empower Texans have decided that they will not stand by as some attempt to abuse the powers of government to stifle the speech of all Texans. When will Texas print media stand up to protect their own rights?

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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