Monthly Archives: June 2014

Empower Texans, “New Media,” and yesterday’s TEC hearing

One of the issues raised in yesterday’s hearing is the exemption for news media organizations from Texas’s lobbying registration statutes.  Sullivan is claiming that Empower Texans serves as a news medium as well as an advocacy arm, and that Empower Texans’ status as a “new media” organization exempts its employees (like Sullivan) from the registration requirement. There was a lot of interesting testimony on this point from Sullivan’s expert witness, who among other things pointed to the colonial pamphleteers, and the socialist and Muckraker journalists from around the turn of the century, as examples of the “old, old media,” which used journalism as a means of advocacy.

I think two of today’s mainstream media write-ups help make this point even better.  Whether you saw any of the hearing yesterday or not, I invite you to read David Rauf’s piece (SA Express-News and Houston Chronicle), and then read Chuck Lindell’s piece (Austin American-Statesman).

Rauf’s piece leaves out half the story (namely, Michael Quinn Sullivan’s half). There is nary a mention of the significant statutory and constitutional arguments raised by Joe Nixon (Sullivan’s attorney), which were a major focus of the hearing for anyone who listened.

If you compare those two pieces, one thing should be immediately clear: hard news reporters have just as much influence on public opinion–by the manner in which they cover stories–than do any of the best opinion writers or talking heads or advocacy organizations (like Empower Texans, to pick a random example).  In fact, most average voters, I would imagine, read things like the Chronicle website rather than policy or campaign pieces put out by left or right organizations.  Does that mean we should do away with the media exemption? Of course not. It means serious people should grapple with the fact that formally-disinterested hard news reporters and editors wield tremendous influence over public policy.  By determining whom to interview about a story, what questions to ask, and what angles to cover (and even what stories to cover in the first place), hard news writers–over time–undeniably shape the electorate.

This is why, in places like Russia and Venezuela right now and countless other places throughout history, autocratic governments always move to control news media (not just opinion writers). By controlling hard news reporting you control the narrative.

I was in my office in Houston, so I couldn’t attend, and the official House feed was not working. Thankfully, an outfit called Agendawise set up a live feed available for free on its website.  Agendawise is a conservative organization that you might refer to as “new media.”  Because of that feed, I was able to read and evaluate the two pieces that appeared today.

The duplicitous Texas Ethics Commission and Empower Texans

Today the Texas Ethics Commission (TEC) is scheduled to finally hold a hearing to consider its case against Empower Texans and Michael Quinn Sullivan.  David Rauf of the SA Express News has a story, though it doesn’t touch on some key points and background to put this whole sad affair into context.  I’ll fill in more of that as this overreaching investigation continues. The investigation, which was initiated by bare allegations lodged by two sitting state legislators with an assist from a registered lobbyist (and based on “information and belief,” rather than personal knowledge), focuses on two issues: (1) the allegation that Empower Texans, a 501(c)(4) organization, meets the definition of a “general purpose political committee” and therefore should be disclosing donors to the TEC; and (2) that Michael Quinn Sullivan, its director, meets the definition of “lobbyist” under Texas law and therefore should have registered, and paid an annual lobbying fee to the state, before advocating policy to the Legislature.

There is much that needs to be said about all of this, which the news media (like the TEC) is totally oblivious to. This morning, I at least thought it would be appropriate to point out the TEC’s duplicity on the issue of nonprofit disclosure.

The TEC has led a two-year-long witch hunt against the nonprofit Empower Texans, including the issuance of subpoenas for financial records, calendars, internal communications and the like, which a federal district judge described as “absurd.”  All of it aimed at determining whether Empower Texans meets the definition of “political committee,” which would require donor disclosure.

Now shift gears for a second. In a case called Catholic Leadership Coalition v. Reisman (as in David Reisman, former Exec. Dir. of the TEC), I’m representing three “general purpose political committees” in a First Amendment lawsuit challenging a Texas law (Elec. Code 253.037(a)) that requires general purpose committees to wait 60 days before spending $500 on political speech. Two of those groups have related nonprofit arms associated with them. This is common practice–a group of people want to engage in discussion, advocacy, and political action, so to comply with the law they set up a nonprofit to do what nonprofits do and a PAC to do what PACs do.  Realizing that there is no substantive argument that can sustain Texas’s two-month ban on spending by general purpose committees, the TEC decides to argue all the way through district court that my two clients with associated nonprofits should have just funded their election speech via the nonprofits, rather than having the gall to come into court to challenge Texas’s $500 speech limit. Citizens United–the TEC argues–validated the rights of independent nonprofits to spend on electioneering, so nonprofits should just do that, rather than set up a general purpose committee and complain about a two month blackout period.

We argued Catholic Leadership April 30 in the Fifth Circuit, and the TEC continued the same theme throughout its appellate briefing and even at oral argument (audio here).  (A decision could be released any day.)

Make no mistake: my clients in Catholic Leadership are not in the same category as Empower Texans.  The Catholic Leadership groups challenging the waiting period on PACs are undeniably PACs–they specifically solicit funds for express advocacy communications about candidates, which means those funds are “political contributions” and the group soliciting them is a PAC. Empower Texans does not do that.  In fact, it has a related PAC that exists for that purpose.

This situation reveals the true motivations and duplicity of the decision-makers at the TEC. Suspend your disbelief and consider the TEC’s positions in these two concurrent cases over the last two years:

  • In Empower Texans’ case, TEC pursues an aggressive investigation to determine whether a nonprofit became a political committee and violated the law by failing to register and disclose donors.  But:
  • In Catholic Leadership, TEC tries mightily to hoodwink two federal courts into believing that my clients–who have loudly proclaimed all along that they had to, and in fact did, solicit political contributions to fund their speech–should have simply spent the money through their nonprofits (which don’t disclose donors).

Where is the media to pick up on this blatant inconsistency? If my clients had taken the route the TEC has suggested in litigation, they would have found themselves in the chair next to Empower Texans today. Except that they would have deserved to be there, while Sullivan does not. Much more to come on this.

Letty Lopez files request to expedite any appeal of her election contest victory in Weslaco

Letty Lopez filed the below motion today requesting an expedited schedule if Lupe Rivera files an appeal.  Yesterday, Lopez filed a proposed judgment which included a proposal for an expedited appeal, should any appeal be filed, as permitted by the election code.  Rivera’s attorney immediately emailed Lopez’s attorney indicating that Rivera would object to any expedited appellate schedule.  In light of this objection, Lopez filed the motion below, providing an explanation as to why the court has the authority to expedite the appeal and why it should do so in this case, rather than permitting Rivera to delay resolution of this case.

20140619 motion for expedited briefing on appeal Lopez

#LopezvRivera update: Imporant victory against illegal voting in Weslaco election contest

Last Thursday, June 12, the district court announced in open court that Letty Lopez had met her burden and proved by clear and convincing evidence that there were more illegal votes cast in last November’s Weslaco Commission District 5 race than the margin of victory. The judge announced that a new election must be held “as soon as possible,” although no date has been set yet.  Below are two news stories covering the ruling.  Stay tuned for details, as the judgment should be signed soon and we will find out what happens next.  I will also lay out the basis for the court’s ruling in more detail after the judgment is signed.  This is an important victory against illegal campaign tactics commonly used by some candidates in the Valley.  (Disclosure: Najvar Law Firm, the sponsor of this blog, represents the successful contestant, Letty Lopez.)

Judge orders new election in Weslaco District 5” (The Monitor)

KRGV video report

Amicus brief supporting Tom DeLay filed by two national free speech groups

Glad to see two very good free speech groups, Wyoming Liberty Group and the Center for Competitive Politics, are weighing in on this appeal by the prosecution of the Third Court of Appeals’ decision to overturn DeLay’s conviction. This case raises important issues of political speech. As WyLiberty’s press release summarizes:

“By cobbling the Texas money laundering statute together with the state’s election code, the prosecutors weaved a complex web that, if upheld, would threaten all politicians and politically active citizens,” said Steve Klein, co-counsel to WyLiberty. “But political speech and participation are the very reason we have a First Amendment, and vague inventions like this cannot stand, especially when they are created whole cloth by prosecutors instead of legislators.”

The release includes a link to the amicus brief filed June 2.

#LopezvRivera update: Judge will announce his decision in Weslaco election contest June 12

Judge Menton Murray, Jr. has set a hearing for June 12 at 10:00 am, at which he will announce his decision as to each challenged vote in the election contest between Leticia Lopez and Lupe Rivera for Weslaco City Commission District 5.  The hearing will be at the 139th District Court in Edinburg.

The trial in this case was held March 24-27, and after briefing by both sides, closing argument was held April 25.