Category Archives: Texas legislature

Gov Perry Vetoes SB 722 Relating to Interpreters At the Polls

The Gov also vetoed SB 722, which would have allowed the authority conducting an election to select the interpreter who would assist a voter. An excerpt from Perry’s statement:

Ensuring the integrity of our state’s election process is a key component of providing a system of fair, open and honest elections. Under current law, if a voter cannot communicate with poll workers in a common language, the voter is entitled to use an interpreter of the voter’s choice who is a registered voter in that county. Often, this is a family member or other person in whom the voter personally has confidence.

SB 722 would allow the authority conducting the election to select the interpreter, thus subjecting the voter to someone with whom they are not familiar. While an interpreter selected by the voter could not be the voter’s employer, agent of the employer or agent of the voter’s labor union, there would be no such bar on interpreters appointed by the entity conducting the election. In an election where the entity is an employer of many voters, such as a school bond election, this could lead to the perception of undue influence, as an administrator or other person with authority over likely voters is allowed to be present at the polls.

Update: Reaction from supporters of the bill, who see things differently (via Houston Chronicle’s Texas Politics blog).

Gov Perry Vetoes SB 219, the Texas Ethics Commission Sunset Bill

Governor Rick Perry just vetoed SB 219, which was the Ethics Commission sunset bill but also contained many objectionable provisions.  Perry’s objections were as follows:

SB 219 contains several important changes to the state’s ethics laws, especially those relating to the sworn complaint process. However, these positive changes are outweighed by several provisions added late in the legislative process without an open and honest discussion.

The last-minute addition of a resign-to-run requirement for members of the Railroad Commission would change the structure of a constitutional agency without the consent of Texas voters. Any effort to amend a constitutional office should go to a vote of the people.

This bill would also strip a journalist’s testimonial privilege if the journalist has made direct political expenditures, or is affiliated with entities that make such expenditures.

SB 219 also allows the Ethics Commission to set an annual document filing fee for candidates and groups who file campaign finance reports. Candidates should not be charged for participating in a process intended to be transparent, to pay for a state agency. The legislature should continue to set the fee to run for office in a transparent and open way, rather than leave that to a state agency.

The Legislature had an opportunity, through the Sunset review process, to make needed changes to our campaign finance, lobby and financial disclosure laws – changes that are needed to modernize laws while still protecting our rights and providing for transparency. I urge the Legislature to look closely at our ethics laws during the interim in an open, deliberative and transparent way, so that all voices are heard and all proposals are thoroughly discussed.

I wrote previously about the problems with the “resign to run” provision targeting the Railroad Commission alone (see here and here), the new free speech tax (document filing fee), and the unnecessarily onerous broadcast disclosure provisions. Perry cited another curious provision that I hadn’t gotten around to writing about yet: the removal of the testimonial privilege for certain journalists. I’ll follow up with more analysis. This bill was loaded with ridiculous provisions demonstrating a lack of respect for free speech and association.

Explanations For Railroad Commission Resign to Run Provision Don’t Make Sense

Supporters of the “resign to run” provision targeting only Railroad Commissioners in SB 219 claim it’s somehow necessary because, otherwise, donors from the industry regulated by the RRC could fund a Commissioner’s campaign for other office (and presumably create the appearance or actuality of corruption).  Christy Hoppe of the DMN Trailblazers blog writes that “[l]awmakers wanted commissioners not to tap the interests they are regulating to pay for expensive campaigns for other office.”

If that is truly what animated this provision, it This justification is either fabricated or is a shockingly poorly drafted law, for the following reasons:*

  • The bill doesn’t have anything to do with a Commissioner running for re-election to the Commission. (If industry wanted to corrupt a commissioner, wouldn’t they be more interested in one staying put than one seeking other office?)
  • There is no suggestion that committee chairmen in the House or Senate should be prohibited from accepting campaign funds from those affected by their committees (this presents the same  corruption threat, but is of course not addressed)

The generalized threat of corruption is present with respect to any person, running for any office, at any time. The answer is to require disclosure of campaign finances, which is already required in minute detail by the Election Code. People can see where a candidate’s funding comes from and make judgments accordingly. The reality is that the office of Railroad Commissioner is no different than any other political office, and this provision does not address any corruption threat because it was not drafted for that purpose. Instead, it singles out a particular office, and removes a potential choice from voters.

[*I shouldn’t allege “fabrication”; the law speaks for itself.]

More Problems With SB 219

I wrote Saturday about the new “resign to run” provision contained in SB 219 targeting only the Railroad Commission. Unfortunately, it’s not the only problematic provision in the bill.

Free speech tax

The bill would amend Election Code section 251.003 to require an annual fee payable to the Ethics Commission by almost all filers (this includes candidates and all political committees). The premise behind disclosure requirements is that the public at large benefits by knowing who is spending money. The groups engaging in advocacy are the only ones in a position to file reports of  money coming in and going out, so it’s a necessary evil that they be burdened with filing obligations. But recognize that this takes time and money away from their efforts. They should not be taxed–in addition to the compliance costs already absorbed–for engaging in core political activities. We should be encouraging more folks to engage in the process, not slapping them with a free speech tax.

New disclosure requirements for broadcast ads

SB 219 includes more detailed disclaimer requirements for political ads (see pages 56-57 of the enrolled version). Everyone can agree that as a general matter, disclosure of campaign finances is healthy and necessary in terms of informing the electorate. But disclosure laws impose real burdens on speech, and therefore they must be appropriately tailored so as to do the least damage possible to fundamental rights while achieving their legitimate informational goals.

The new disclosure requirements applicable to television and radio ads will rob candidates and political committees of valuable time and resources, without achieving anything meaningful. Under current law, any “political advertising” in any medium is required to include a statement substantially similar to the following: “Political ad paid for by X.”  A floor amendment added in the House requires that any TV ad containing “express advocacy” and authorized by a candidate carry an image of the candidate, and a “written statement” identifying the candidate and stating that the candidate has approved the ad. The kicker is that the statement and image must appear “at the end of the communication for not less than four seconds.” TV ads done independently (i.e., not authorized by a candidate) are not required to display an image, but must carry the same four-second written statement identifying the individual or group paying for it. So the new bill requires a specific four-second duration and, in the case of ads by candidates, requires an image of the candidate. (These requirements were offered in slightly different form in HB 1398, but didn’t make it out of committee.)

Think about this in terms of the scarce resources of campaigns and political groups. Four seconds is 13% of a 30-second ad (the typical duration of an election ad). This can amount to thousands of dollars for each ad buy. Many campaigns also buy 15-second ads, but the law still requires a full four-second presentation of the candidate’s image and written statement. In that case, the government is taking over 27% of the ad time. These precious seconds cost money and rob time from the communication. I suppose it’s possible to display the image of the candidate and the written statement on only a portion of the screen, such that the other content of the ad can continue to the end, at the same time as the disclosure. But this will depend on the Ethics Commission’s application of the requirement that the image be “clearly identifiable.” How much of the screen must it occupy to meet that standard? Current law already requires a written statement, and this is sufficient to inform viewers. Is anybody really confused by ads that display a written statement but lack an image? Or by a written statement that lasts one or two seconds, rather than four? 

Ironically, this new requirement provides a rare example of incumbents disadvantaging themselves in comparison to “outside groups.” TV ads not authorized by a candidate must only display the written statement, but no image.

Regarding radio ads, the amendment would require that the spoken “paid for by” statement be recorded by the candidate or representative of the group paying for the ad. This may seem minor in most instances, but it also could prevent spontaneous ad buys if a group cannot get the statement recorded in their own voice in time. It is often necessary to respond immediately to a claim made by an opponent, or to some pressing issue, and requirements like this can act as practical obstacles to speech. There is nothing wrong with a statement in the same voice as the rest of the ad.

It seems to me these amendments add nothing to enhance disclosure, but will impose substantial costs on candidates and PACs by conscripting large chunks of every ad buy.

[Update: I just received a copy of a letter by the American Association of Political Consultants opposing HB 1398 earlier this month. (See here: AAPC_Duncan) They write that the new requirement threatens to “overwhelm the campaign message itself.”]

[Update2: coverage by the Dallas Morning News’ Trailblazers blog here]

Social media ad disclosure

The new requirements for social media sites seem reasonable for the most part, and the Lege should get credit for excepting text messages.  However, the bill requires that in the case of social media sites, the disclosure statement appear in a “printed box” on the profile page. This, I think, is impossible on Facebook or Twitter, etc.  There is an exception for social media advertisements that are “too small” to permit compliance with the requirement, in which case you can simply include a link to a separate page containing the appropriate disclaimer in full. I assume the Ethics Commission will have to interpret this provision to apply to a social media profile page that does not permit the user to include a “printed box.”


New “Resign to Run” Provision Targeting Railroad Commission Raises Question of Fundamental Fairness

While the general wisdom of “resign to run” provisions is open for debate, the Legislature raises new questions about its motivations with a strange, last-minute addition to SB 219, which expands “resign to run” to statewide offices.  Well, actually, expands it to only one statewide office: Railroad Commissioner.

SB 219 began as the Texas Ethics Commission “sunset” bill. The provision in question was added as a floor amendment (#2) in the House on May 20, and then retained in the conference committee version passed by both chambers.  If signed by the Governor, new Election Code section 253.044 would provide:

If a person who is a railroad commissioner announces the person’s candidacy, or in fact becomes a candidate, in any general, special, or primary election for any elective office other than the office of railroad commissioner, that announcement or that candidacy constitutes an automatic resignation of the office of railroad commissioner.

This provision raises questions for a couple of reasons.

First, it applies only to the office of Railroad Commissioner, rather than to a category of offices. By contrast, Texas’s other resign to run provisions apply to large categories, such as district, county and precinct offices (Tex. Const. art. XVI, section 65) and municipal offices with terms exceeding two years (Tex. Const. art. XI, section 11).

Second, this new provision would apply throughout the entire term of office. A Railroad Commissioner would be prevented from “announcing” candidacy or filing for any other office until the last day of his or her term. Again, this is in marked contrast to the constitutional provisions applicable to county and municipal officers, who may announce or file for another office without resignation so long as they do so in the last 13 months of their term.

Again, the wisdom of resign to run, as applied to any office, is questionable. Officeholders are ultimately accountable to the voters for their performance, and resign to run provisions deprive the voters of their interest in supporting the candidates of their choice. At this moment, several statewide officeholders are actively running for other offices. Land Commissioner Jerry Patterson is campaigning for Lieutenant Governor. Ag Commissioner Todd Staples is too. Attorney General Greg Abbott is widely reported to be preparing for a gubernatorial bid. If resign to run applied to statewide offices, Texas voters would either be deprived of the services of these individuals in their current offices or denied the right to cast a vote for them for another office in 2014.

Yet, the Legislature targets the office of Railroad Commissioner alone. Why? And why with such an onerous provision?

It seems clear to me that the target is one person: Barry Smitherman. He was appointed to the RRC in 2011, chosen as Chairman in 2012, then went on to win election in November 2012 for a term through 2014. He won the General with 74% of the vote, amounting to 4.5 million votes. Smitherman is reportedly interested in running for Attorney General in 2014. Interestingly, there are at least two current members of the Legislature, Rep. Dan Branch and Sen. Ken Paxton, who are also reported to be interested in the AG’s race. Coincidence?

In the world of campaign finance, it is easy to observe how legislatures (populated by incumbents) are adept at passing restrictive laws burdening outsiders and benefiting themselves. The fact that the Legislature has targeted a single office–and perhaps a single person–with a new, onerous resign to run provision raises a serious question: have they have done so to keep Smitherman out of the AG race, clearing a path for a few of their own to fight it out? Given the oddly narrow scope of this provision, the burden should be on the Lege to defend it.