|On Friday I delivered a letter to the Texas Ethics Commission, calling on them to separate the hearing process on the complaint filed against Michael Quinn Sullivan for failure to register as a lobbyist, from the complaint filed against Empower Texans for failure to file their contributor names. View letter here.
While the complaints are separate matters, they involve common parties represented by the same counsel, and the Ethics Commission has made the determination to this point to keep the two complaints on the same timeline, discovery and hearing schedule. PAAT has taken the position that the complaint involving the accusation that Sullivan failed to register as a lobbyist is substantially more simple to determine than the campaign disclosure complaint, and should be addressed as soon as possible in order for the lobby community to know whether the Commission will reject or sustain Sullivan's arguments as to the applicability of the lobby law to his activities in the 2011 legislative session.
What follows below is my impression of the issues surrounding the complaint against Sullivan. Please remember that my impression may not be altogether accurate, but it is to the best of my knowledge.
Also remember that PAAT is not a party to this complaint, but because we have a substantial interest in knowing with certainty what the law is regarding registration and compliance, we filed an amicus brief in the federal court action brought by Sullivan to challenge the Commission's authority to take actions to prosecute the case against him. Further, the basic premise of PAAT's existence is to work to uphold high ethical standards in the world of advocacy. This implies that we support efforts to enforce violations of the statute that governs our activities.
While Sullivan's defense counsel has raised issues that relate to the constitutionality of the lobby law, the major constitutional questions raised in the process thus far have dealt with the complaint against Empower Texans for failure to disclose contributors. PAAT's position is that because these disclosure issues are national in scope, their resolution will take longer than the challenge to the Texas lobby law. Further, while PAAT and many of its members clearly have an interest in knowing the ultimate determination of the Empower Texans complaint, our primary interest is in knowing what the law governing advocacy is in Texas because of our ethical obligation to follow it.
Broadly summarizing Sullivan's challenges to the Texas lobby law complaint that the complainants have brought against him, the major issues are twofold:
- The way I understand it, Sullivan argues that he is a journalist, and as such, he is not required to register as a lobbyist because of his rights as a journalist under the protections given under the U.S. Bill of Rights that freedom of the press cannot be abridged. Further, he argues that he is not covered by the law requiring registration because the exception to registration found in the statute governing lobbyists, Chapter 305.004 (1), exempts journalists from having to register if they communicate to influence. A factor in the argument against this position is that the language in 305.004(1) states that the exception applies:
"â€¦ if the person does not engage in further or other activities that require registration under this chapter and does not represent another person in connection with influencing legislation or administrative action".
Accordingly, if the only activity engaged in by Sullivan to communicate to influence was in his role as bonafide journalist, then the exception would seem to apply. However, if there were other activities that constituted communication, including goodwill communications as defined by the Commission, the exception would seem not to apply.
- The second general issue raised by Sullivan appears to be the assertion that the communications he made during the session did not constitute communications to influence a particular state official, but were general in nature, such as his newsletter. However, items purported to be relevant to this complaint include copies of memos sent directly to individual legislators urging action on a particular piece of legislation. Sullivan apparently argues that this was simply "score carding" which did not constitute communications to influence. Examples of communications allegedly sent by Sullivan to legislators can be found here.
Whatever the decision ultimately determined by the Commission, we have now urged the Commission to expedite its resolution so that we will have guidance in time to know whether the challenges to the law have merit prior to the 2015 session.
We will endeavor to keep you informed of this matter as it progresses further.