A First Amendment battle is being waged in Texas right now that has national implications. Empower Texans, a taxpayer watchdog group that informs citizens about how their representatives in Austin are voting, has become the target of an IRS-style attack by the political Left and moderate Republicans to silence conservative voices.
Because the Texas Ethics Commission is currently trying to force the group to reveal its donor list, Empower Texans filed a federal lawsuit to protect their constitutional rights.
Lawyer and lobbyist Steve Bresnen led the effort against Empower Texans, but complaints were officially filed to the Ethics Commission by two Republican lawmakers, Rep. Jim Keffer and the now former-Rep. Vicki Truitt, both of whom had performed particularly poorly on the organization’s Fiscal Responsibility Index (see links for their grades). They also shared a common political consultant: Steve Bresnen.
In the complaint, Keffer and Truitt took issue with the fact that because people donate to Empower Texans, a 501(c)(4), and because the group has decided to engage in independent expenditures, they qualify under state law as a political action committee, which would then force Empower Texans to disclose their donor list. Additionally, they said that because Empower Texans scorecards lawmakers at the end of the legislative session, and because the group has an online page that puts out a weekly newsletter, Empower Texans’ President Michael Quinn Sullivan should file as a lobbyist and pay an annual fee to the government.
Elizabeth Graham, director of Texas Right to Life, says there’s actually a personal vendetta at play in some cases. “Disgruntled legislators who are not representing the views of their constituents are mad that we’re going and telling their constituents—our members, citizens of Texas—how they vote. And they’re using [Sullivan] as an example,” she said. “If they can silence him, then the rest of us might be intimidated to stop telling people how they vote.”
After sitting on the complaint for 20 months, a closed-door hearing finally took place in 2013. The Commission told Sullivan that the problem could all go away if he wrote a check, filed some reports, and became a licensed lobbyist.
“We refused,” Sullivan’s attorney Trey Trainor told Townhall, “because he’s not a lobbyist and they’re [Empower Texans] not a PAC, and if we did that, it would have just burdened other organizations that come along.”
Empower Texans has had no choice but to go to federal court, fighting on First and Fourteenth Amendment grounds, to protect the donors to 501(c)(4)s from being disclosed.
“I mean, when these people give their money, they’re told your name’s not gonna be disclosed,” Trainor said.
Texas Right to Life, Texas Home School Coalition, and Texas Eagle Forum plan to file motions to intervene in the suit on the side of Empower Texans to protect the ability of donors to be able to give money anonymously.
The Ethics Commission sought so much information in the initial round of subpoenas, including Empower Texans’ donor list and the email addresses of the group’s subscribers (for public record), that federal judge Sam Sparks said he “[knew] of no courtroom in the land that those subpoenas would be approved,” calling them “absurd” and “overbroad.”
Despite this, the Ethics Commission came back with subpoenas that were even more expansive, going from three pages to nine. And even after sitting down with the attorney general’s office several times offering to ratify the documents they have from the complaints, they haven’t been interested.
“I think it’d be easy to look at this and say, ‘ah, well, this is some skirmish in Texas between conservatives and [the] establishment, stinks to be them,” Sullivan said, before cautioning that if this happens in Texas, it will happen in other states too.
“Bad ideas spread like weeds in the garden in spring.”
John Moore, who is the chief lawyer and head of the Ethics Commission’s enforcement division, said at the last hearing that the constitutional issues don’t matter in the proceedings, and that it’s not an issue the commission needs to be concerned with in addressing the complaints.
“And so they’ve taken our arguments about the Constitution, about the rights of people to associate freely, the rights of organizations to basically inform the public of what’s going on through new media, don’t matter. The First Amendment doesn’t matter in these cases,” Trainor explained.
And it’s easy to see why moderate Republicans and the Left want the information.
“It’s all about being able to go on a witch hunt and track down the people who are funding these operations, and go to their employers and go to the people that they associate with, and put pressure on them because these groups are very effective at moving the Texas Legislature,” Trainor said. “We had a nationally recognized pro-life piece of legislation, we’re one of the best states in country for parental rights in homeschool issues, we’re a very fiscally conservative state that’s got a great business environment because the [grassroots] advocacy that goes on. … The groups on the Left are losing, and they’re losing because of [conservative grassroots organizations’] ability to go out and speak to the public, and now they want to quell that ability to speak to the public by figuring out who’s funding these operations.”
In 2013, left-leaning Republicans and members of the Texas Democratic Party tried to push legislation that would do much the same: force conservative nonprofits to reveal the names of their donors. Since SB 346 also had a special exemption for labor unions, however, ideological motivations can’t be ignored. Fortunately, Gov. Rick Perry vetoed the bill last spring, saying it would “have a chilling effect” on freedom of association and freedom of speech.
“At a time when our federal government is assaulting the rights of Americans by using the tools of government to squelch dissent it is unconscionable to expose more Texans to the risk of such harassment, regardless of political, organizational or party affiliation,” he said.
Undeterred, however, the Texas Ethics Commission in February posted for public comment new rules that would essentially do what Gov. Perry vetoed and what they’re trying to accomplish through the subpoenas issued to Empower Texans.
“If you think of Obamacare, what [President Obama] can’t pass through legislation, he’s doing through agency rules,” Graham said. “I mean, the conservative Legislature actually voted against the bill, Perry vetoed the bill, and the agency is now trying to adopt its own rules despite having no legislative authority.”
In the end, this case isn’t about proving whether or not Empower Texans is a political action committee. It’s about how the political effectiveness of Empower Texans, and other groups like them, can be neutered.
The battle seems far from over, but one thing, as Sullivan said, is clear: “They picked on the wrong Texans.”