The Ethics Commission's decision yesterday against Michael Quinn Sullivan for failure to register as a lobbyist in 2010 and 2011 marked the first time a lobby complaint has gone all the way through the contested case procedure at the Commission.
In short, it is a landmark decision.
According to the Ethics Commission order, Sullivan failed to register as a lobbyist after "making direct contact with members of the Texas Legislature and their staffs to influence the outcome of bills, nominations, and other matters that were subject to legislative action".
The Commission listed several specific examples of communications that constituted lobbying, but importantly for our purposes, gave a laundry list of items which, in this instance, DID NOT constitute direct communication with a member of the legislature to influence pending legislation and would not require registration. (Please note: the law does not only require registration for communicating to influence pending legislation, but also "any matter that is or may be the subject of legislative action by either house or by a legislative committee, including the introduction, consideration, passage, defeat, approval, or veto of the matter".)
- Included on the list of items that do not constitute communications is a clue to a very critical issue we have been debating: whether tweets and Facebook posts can constitute communications to influence. According to the list (and on this case only for the time being), the answer is NO (see Findings of Fact #8 o and p). However, if this is an indication of the Commission's general opinion on social media communications, there may be an opportunity to get this clarified through an advisory opinion or rule. Stay tuned.
So what happens next? My assumption is that Sullivan will ask for a rehearing to satisfy the procedural requirements before he goes to District Court. Following that he will file an appeal de novo, in District Court contesting the Commission's decision. A de novo appeal means that the Court will not consider any of the proceedings of the Ethics Commission or its evidence in the appeal hearing, and the Commission's decision will be vacated once the appeal is filed. Basically starting over. The Commission is a party to the appeal, and they will have to be represented by the Attorney General's office unless the AG chooses not to handle the representation. Think for a while on that one.
At the end of the day, it may be a long time before MQS has to part with his $10,000, but the precedent has been set. The Commission is willing to follow through on a complaint, and will take it seriously. As an additional element, the failure to register is a Class A misdemeanor, and now that the Commission has acted, a complaint filed with a county attorney could result in prosecution, using the Commission's interpretation in this case as a baseline for their investigation.
For those of us who are truly interested in knowing what the law is so we can follow it and advise our clients or employers, the decision is helpful. The lobby law has some teeth and failure to follow it has consequence. The purpose of the law - to inform the public about who is being paid to influence state policy - apparently has survived this test and compliments its broader impact: to establish a system that helps avoid corruption in government.
More to come as things spin out on this event.