My friend J. Christian Adams has reported on a confidential listserve being used by state speech and campaign finance regulators. The listserve is being used to coordinate strategy and tactics on how to go after conservative advocacy organizations and force nonprofits to disclose their donors. The intent seems to be to chill their speech and to protect incumbent legislators who don’t want organizations such as Empower Texans putting out a legislative scorecard like its Fiscal Responsibility Index, which gives overspending state representatives of both political parties low grades.
According to a lawsuit filed in Travis County, Texas, Empower Texans is a 501(c)(4) nonprofit that was organized in 2006 to build support for strong fiscal stewardship by the state government, and to inform Texas voters and taxpayers about how their government officials are acting in relation to that objective. In 2007, for example, Empower Texans mounted a direct mail campaign asking voters to call on their state legislators to return a $13 billion tax surplus instead of spending it on more government programs. This kind of activity, along with its legislative scorecard, apparently angered not just state legislators, but lobbyists who make their living convincing the state government to spend money on their clients’ pet projects.
Information about the state regulators’ internet discussion group was discovered by Empower Texans because of a long-running litigation fight with the Texas Ethics Commission (TEC). A complaint was filed by two Republican state legislators, Jim Keffer and Vicki Truitt, who later admitted that the information for their complaint was actually put together by a lobbyist, Steve Bresnen. Not only did the lawmakers not write the complaint, they apparently didn’t know who did. Keffer’s career average legislative score from Empower Texans was an F; Truitt averaged a D+ before she left the legislature.
The TEC opened an investigation, accusing Empower Texans of illegal lobbying and of having “morphed” into a Political Action Committee (PAC) because of that legislative scorecard and other actions like a weekly newsletter it sends out to over 150,000 Texas residents.
Some of the documents Empower Texans has obtained through discovery, as well as the statements made by Commission members and staff at its hearings, are quite revealing about the true motives of an out-of-control state agency and its total disregard for the law and basic constitutional rights. In fact, the pattern revealed is very similar to that of the discredited Government Accountability Board in Wisconsin, whose abusive John Doe investigation and persecution of almost every conservative advocacy group in the state — with the cooperation of biased local prosecutors — was recently finally ended by the Wisconsin Supreme Court.
The TEC has been attempting to obtain the names of all of the donors to Empower Texans through subpoenas that a federal court called “absurd” and “overbroad.” Most importantly, the Commission is essentially ignoring Texas court decisions that overrule the very theory being used by the Commission to investigate Empower Texans. In 1998 in In re Bay Area citizens Against Lawsuit Abuse, the Texas Supreme Court held that it was unconstitutional to try to force a private, nonprofit organization to reveal its donors. The unanimous opinion was written by former Justice Greg Abbott, the current governor of Texas, who relied on the 1958 U.S. Supreme Court opinion in NAACP v. Alabama.
In 2014, the Texas Third Court of Appeals, which is the court with direct geographic jurisdiction over the Texas Ethics Commission, ruled in Sylvester v. Texas Association of Business that nonprofit corporations that engage in independent political speech — as Empower Texans is doing — cannot “morph” into a PAC. Indeed, the court held that such an interpretation of the law was “an affront to the First Amendment.”
What was the reaction of the TEC to these cases that obliterate the basis for its investigation and its attempt to force Empower Texans to disclose its donors? On April 3, 2014, at a hearing before the Ethics Commission, the director of enforcement John Moore (who is one of the participants in the secret listserve) told the eight commissioners to essentially ignore the issue of whether what they were doing was “constitutional or not.”
At another hearing on Feb. 13, 2015, when the lawyer for Empower Texans, Joe Nixon, once again brought the holding in Sylvester v. Texas Association of Business to the attention of the Commission, its chairman — Democrat Paul Hobby — told Nixon that it wasn’t their job to read court decisions from the Texas Third Court of Appeals and “to call constitutional balls and strikes.” Referring to Empower Texans’ refusal to accede to the Ethics Commission’s unlawful attempt to get its donor list, Hobby said that Empower Texans’ failure to “cooperate in [the Commission’s] investigation” disqualified the group from “complaining about our delay or our lack of due process.”
Apparently Chairman Hobby believes that if you refuse to participate in an unlawful investigation that lacks due process protections, you aren’t allowed to complain about the lack of due process.
The Commission itself has never adopted any formal rules governing its investigations and hearings, as required by Texas law. According to the lawsuit filed by Empower Texans, this allows the TEC to “propound, change and define (or re-define) the TEC’s rules during hearings, blatantly disregarding recognized standards of law and justice, to meet their own ends and purposes.”
What makes this even worse, as outlined by Adams, is that the Texas Ethics Commission regulators are collaborating with, and soliciting help from, bureaucrats from at least 10 other states in their effort to get around court precedents from their own state courts as well as federal courts, and to evade First and Fourteenth Amendment protections. In an April 22, 2014 email sent to the listserve, John Moore, the TEC’s director of enforcement, tried to get the other states to help him counteract the constitutional objections raised by Empower Texans to releasing its donors.
The attitude of other state regulators is epitomized by an Oct. 25, 2013 email from Eve Jacobs-Carnahan of the Vermont Attorney General’s Office to the listserve members. One of the holdings of the Citizens United decision and other prior precedent is that it is unconstitutional to limit independent expenditures used to engage in independent political speech. Yet in the Oct. 25 email, Jacobs-Carnahan tells the group about a “bad thing” that has happened: the Second Circuit Court of Appeals issued a preliminary injunction that New York’s contribution limits couldn’t be applied to a political committee that was engaged only in independent political expenditures.
Apparently, she believes that the ability of citizens to freely engage in First Amendment-protected activity is a “bad thing.” That attitude seems to be increasingly common among government bureaucrats with prosecutorial power. It’s a dangerous development.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation. Along with John Fund, he is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” (Encounter 2012) and “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).