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.