"Dark money" rule a loss for free speech in Texas

Photo by Anneke Els Paterson

Our contract with one another as Americans begins with the right to speak freely, assemble together to speak as a group and to petition our government. Not only are these our rights, but it’s our pledge to one another to protect and ensure those rights.

Where politics and public policy are concerned, the only limitation on those rights is to prevent corruption among public officials or its appearance. Otherwise, we get to speak our piece. For over 230 years, our nation’s courts have protected the rights of speech, assembly and petition against attacks by politicians who sought to squelch opposition.

Fifty years ago, the state of Alabama wanted to prevent the NAACP from helping citizens to vote. Alabama attempted to force the NAACP to produce its membership lists, thereby making donors subject to intimidation or retribution. The NAACP resisted and the U.S. Supreme Court reaffirmed the rights of speech, assembly and petition, and protected the efforts of the NAACP in Alabama to inform and engage citizens.

Despite clear direction from the Supreme Court and every other court to consider the question, the Texas Ethics Commission voted this week to adopt a rule requiring the disclosure of what it refers to as “dark money” — that is, donors to charitable and public service organizations that “engage in political activity.”

Interestingly, that same proposal came before the Texas Legislature and was vetoed by Gov. Rick Perry. His veto statement specifically denounced the proposed disclosure rule and echoed the NAACP v. Alabama decision as authority. It’s inexplicable why eight commissioners took it upon themselves to act outside of their authority by pretending they were both the Legislature and governor, creating a rule that every court in the country has struck down and ignoring a veto that is just a year old.

In its effort to open citizens up for harassment over their private giving, the Texas Ethics Commission left many terms undefined. For example, commissioners didn’t explain what constitutes “political activity.” The city of Houston, for instance, recently sent subpoenas to five local pastors who the city believed were giving sermons in opposition to the city’s public policies. The city initially argued that those sermons constituted political activities. Although the subpoenas have been withdrawn in light of a barrage of a national scorn, Houston could now file an ethics complaint and force open the financial books of those churches and require churches to file ethics reports as if they were political action committees. Each of the private tithes to the churches would be disclosed to the Ethics Commission as political gifts, and pastors would be subject to fines for any reporting mistakes.

Any newspaper, media outlet, corporation or other entity that chose to speak publicly on issues, like publishing an editorial or a news story with an angle, might also be subject to the same scrutiny and complaint process. Every community group or club that might stumble across a reason to speak on a policy issue — like garbage collection or aphid control — could be accused of being a political action committee subject to onerous reporting requirements and intimidation by opponents.

Just as horrific as the effect of the new rule and the irony of the Ethics Commission’s use of the term “dark money” is the fact that many rational constitutional scholars advised the Ethics Commission against adopting this rule. One legal scholar from a nonprofit First Amendment foundation in Virginia who met with the commissioners about the problems of the proposed rule even prepared a draft rule that could withstand constitutional scrutiny. His advice, along with that of other legal scholars, was shunned. Instead, the Ethics Commission seems to have taken the advice of an in-house lawyer who offered at one hearing, “This is an administrative agency. The Constitution does not apply.”

The Ethics Commission just a few months ago was ordered to pay over $100,000 in legal fees to a group that challenged the constitutionality of a different rule. The fact is, the Constitution does apply to the Ethics Commission. It’s clear to me that in due course, taxpayers will be paying the legal fees of organizations that successfully challenge the Ethics Commission’s latest foray into unconstitutional rule-making.

The First Amendment was written specifically to protect us from political speech police and, thankfully, will prevail over this and other regulations thought up by the Ethics Commission.

Joe Nixon

Legal counsel for Empower Texans