TEC’s Litigation Lies Exposed in LBB Letter

The Texas Ethics Commission has been caught telling lies to the legislators who oversee them. Pretty unethical! But will legislators do anything about it?

This week I sent a letter to Ursula Parks, the director of the Legislative Budget Board. That’s the agency tasked with drafting the state budget during the interim between legislative sessions. In it, I addressed several false statements contained in the legislative appropriations request submitted to the LBB by the Texas Ethics Commission.

The TEC is a rogue agency. Headed by a board of four Republicans and four Democrats appointed by state legislators and operated day-to-day by career bureaucrats, the commission is charged under state statute with enforcing laws regulating Texans when they petition their state legislators or participate in local political campaigns.

Given that every law the commission enforces effectively regulates speech—including the most constitutionally protected class of speech, political speech—one would think they would be careful in doing their jobs so as not to violate Texans’ constitutional rights. However, time and again the TEC has shown itself to be openly hostile to citizens who come before it, particularly conservatives.

The TEC commissioners have even admitted to the abuse. In a 2013 interview, former TEC Chairman Paul Hobby (now owner of the struggling Texas Monthly) described how the agency has a chilling effect on Texans.

You ought to see these people who leave our meetings in tears, these sweet, simple people who missed a box, missed a deadline. They get a letter [from the Ethics Commission] and they can’t sleep at night, they hire a lawyer they can’t afford. There’s no moral sanction here, they’re not convicted felons. But these people swear, they promise, “I’ll never participate in the process again.

Another former TEC chairman, Jim Clancy, conceded the TEC punishes those who try to comply with its regulations.

One of the challenges we have is that those people who come to us, who try to disclose, are typically the ones who are fined. People who don’t report, who ignore the disclosure system, those folks are rarely involved. The reason why you see a real pushback when you start talking about some expanded powers, more disclosure, more fines, is because there’s a feeling that those people who try to comply are punished for doing so.

However, neither Hobby nor Clancy decided to reform the commission’s abuses. Instead, they sought to expand its powers. When they aimed their guns at Empower Texans and our President Michael Quinn Sullivan, we decided to fight back.

At every turn in our cases against the TEC, their chosen outside legal counsel have used procedural games to stall and avoid any substantive review of their legal positions. They do so because they know the courts have already ruled against their legal theories, and will rule against them again if given the opportunity to do so. But at the TEC, the process is the punishment, and so they seek to prolong every case and every investigation to make them as long and as expensive as possible.

Now the TEC is complaining to the LBB that its outside counsel is too expensive and that they need an extra $600,000 in the upcoming legislative session in order to move forward on their abusive and wasteful litigation.

The commission has already paid $435,000 to its outside counsel, the law firm Beck Redden. That law firm is run by University of Texas Regent David Beck, who was connected through the UT Law Foundation to the recent scandals at UT’s law school.

The commission’s phony sob story would be bad enough, but in the commission’s legislative appropriations request they resort to lying about Beck Redden’s success in the TEC’s cases.

I’ll spare the details here, but in the letter, I go through them case-by-case, explaining how the TEC has not been successful in its litigation strategy.

I put a particular focus on one of our cases alleging that the TEC is constitutionally infirm and must be stripped of its enforcement powers.

The problem is that the TEC was created as a legislative branch agency in 1991 in order to set the salaries and per diem of legislators. But just two years later the legislature decided to give the commission executive branch enforcement powers similar to those exercised by the Federal Election Commission. But the FEC’s commissioners are appointed by the President, not by Congress. In fact, congressional appointments to the FEC have been repeatedly struck down as unconstitutional by the federal courts. Now we are asking Texas state courts to shut down the TEC’s executive enforcement powers under our state constitution’s separation of powers guarantee.

Assuming the courts are willing to apply the law correctly in our case, the TEC’s abusive tactics will soon be permanently shut down. That will put the power back in the place it ought to be—in the hands of elected district attorneys and the attorney general. They can go after any real bad actors and leave the people who try to comply with the law free to participate in their communities.

Given the impending judgment against the TEC, and particularly in light of their decision to lie about their lawsuits, legislators should not only refuse to grant the agency extra funds to waste on outside lawyers but also defund the agency’s enforcement division. After all, the TEC has been rated the least user-friendly state ethics commission in the nation. Perhaps taxpayers would be better served if their funding were diverted to improving transparency.

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Tony McDonald

Tony McDonald serves as General Counsel for Empower Texans. A licensed and practicing attorney, Tony received his J.D. in 2012 from UT Law School. While in school, Tony served as Senior Vice Chairman for Young Conservatives of Texas and helped manage its legislative affairs. During the 83rd Texas Legislature he served as Chief of Staff for Rep. Jonathan Stickland. Tony resides in Austin and attends St. Paul Lutheran Church.

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