UPDATE: The Dallas Morning News is reporting that the nonprofit “disclosure” language that was added to SB 219 has been stripped out in conference committee. H/T to Holly Hansen of the Williamson County Conservative blog for directing me to the news. If true, that’s fantastic. But it still leaves a discriminatory, and totally unnecessary, SB 346 on the Governor’s desk.
If Representative Charlie Geren’s recent claim of interest in transparency were legitimate, some very strange things happened in the House this week. To allay concerns about already-passed SB 346, which favors labor unions over all other political groups in the state, Rep. Geren said he would offer amendments to SB 219 to require disclosure of contributions to certain nonprofits but without the labor union exemption. The bill that has emerged seems to suggest this was never an exercise in transparency at all.
SB 219, as amended, now appears to require nonprofit disclosure, but only with respect to nonprofits that are active in elections for the Speaker of the House. See amendment 12 and amendment 13 (applying only to elections under Government Code section 302, which concerns Speaker elections). First of all, the election of the Speaker is a critical election with major policy ramifications for the people of Texas, and citizen groups have just as much right to voice their views as the candidates for Speaker and other members of the Legislature. In fact, just a few years ago the federal court in Austin invalidated certain restrictions on independent spending with respect to Speaker elections. The Court totally rejected the idea that only the privileged class in the Legislature gets to speak about the Speaker’s race. See Free Market Foundation v. Reisman (2008). Yet here we are again–SB 219 purports to impose onerous burdens on any “outside” groups (read: non-privileged ordinary citizens interested in good government) who dare to voice their views in a Speaker’s race.
Aside from that, the fact that Rep. Geren himself offered an amendment that calls for additional disclosure of donors–but only for groups active in the Speaker’s race–reveals that this was never about “transparency” to begin with. If it were about transparency, SB 346 wouldn’t have excepted labor unions. If it were about transparency, SB 219 would not have been amended such that the additional disclosure requirements applied only in Speaker’s races. Instead, it is clear this is about punishing and suppressing the speech of certain groups disfavored by incumbent officeholders, who such officeholders apparently believe are too effective in communicating with voters.
SB 219 now also includes a requirement that any “electioneering communications” by a nonprofit “disclose in the communication the source of the funds used to pay for the communication.” See amendment 19 (Johnson). This is unconstitutionally vague, and is also cumbersome without some serious narrowing and explanation by the Ethics Commission. Is a nonprofit supposed to list the names of all its contributors “in the communication”? That’s not feasible and it would destroy the ability to send an advertisement at all in certain media.
The Legislature is (I think) capable of passing thoughtful legislation respectful of the First Amendment that achieves greater transparency. But it has not done so here, with either bill. Governor Perry should have no qualms whatsoever about vetoing SB 346 (see previous analysis here and here). And the Senate should not pass out the “disclosure” language in SB 219 as it reads currently. If it does, the Governor should veto it as well. It is the duty of all elected officials to respect and uphold the Constitution.