State Rep. Byron Cook, who came within 222 votes of being booted from office by his own party’s primary voters this month, is back at work on what has become his signature issue: regulating the political speech of Texans.
Cook told the Houston Chronicle that he’s planning to propose an amendment to the state Constitution that could threaten every political group in the state with penalties.
That’s not quite how he put it — the Chronicle paraphrases his idea as requiring “politically active nonprofits to reveal their donors.” However, Cook’s past efforts on this issue reach far beyond nonprofit corporations to affect the speech rights of informal groups of two or more people involved in just about anything that could be deemed “political.”
There’s little question that Cook is targeting Empower Texans, a conservative group that holds lawmakers accountable for votes to raise taxes or increase spending. Cook and his patron, Speaker Joe Straus, have been fighting Empower Texans for years.
The amendment would have almost no chance of becoming law. As chairman of the House State Affairs Committee, Cook could send a bill to the floor, but a constitutional amendment would need two-thirds support in both chambers before going to voters.
It’s clear from one remark Cook made that he either doesn’t know or doesn’t care about the issue he purports to be reforming.
“If we don’t help give transparency to this issue, there’ll be no reason for any candidate to do anything other than set up vehicles to allow them to receive money anonymously,” Cook told the Chronicle.
Cook’s assessment might work as “dark money” scare-mongering, but doesn’t square with two generations of campaign finance law.
One, state law holds that any supposedly “independent” campaign expenditure made with the consent or approval of a candidate is already a reportable contribution.
Two, any supposedly independent committee set up by a candidate is already regulated as a political committee under state law. If it were a “specific-purpose committee,” it would have to file four reports a year. Also, under new rules implemented by the Texas Ethics Commission, any group that uses more than 25 percent of its budget for political expenditures has to file reports on its donors.
This isn’t novel, either. In Buckley v. Valeo, the foundation of modern campaign finance law, the U.S. Supreme Court held that it was permissible to regulate as a “political committee” one that is either “under the control of a candidate or the major purpose of which is the nomination or election of a candidate.”
“But when the maker of the expenditure is not within these categories — when it is an individual other than a candidate or a group other than a ‘political committee’ – the relation of the information sought to the purposes of the Act may be too remote” for regulation to be permissible.
The exception was for “express advocacy” of a candidate, the famous “magic words test” that is so central to campaign finance law.
In other words, if you’re not a candidate, and you’re not a committee whose “major purpose” is electioneering, and you’re not using magic words like “vote” or “elect,” you shouldn’t have to watch what you say.
So Cook’s hypothetical situation has never been anything more than a hypothetical.
Yet Cook, Straus, and the Texas Ethics Commission have all been challenging constitutional speech protections in recent years.
Cook’s proposed amendment would likely face the same trouble as the TEC’s 25 percent political expenditure rule, which is currently being challenged in federal court by the Texas Home School Coalition.
That’s because the Supreme Court held in 1986 that it is unconstitutional to impose that sort of regulation on mildly political groups “who occasionally make independent expenditures on behalf of candidates,” because it makes “engaging in protected speech a severely demanding task.”
“Independent expenditures constitute expression ‘at the core of our electoral process and of the First Amendment freedoms,’” the court ruled, echoing Buckley.
For regulation to be allowed, an independent group had to spend so much on campaigns “that the organization’s major purpose may be regarded as campaign activity.”
The TEC’s own members recognize that federal courts aren’t likely to allow states to arbitrarily redefine “major purpose” or “principal purpose” as meaning “25 percent or more.”
While the Chronicle reports that Cook and other lawmakers say that independent political activity could lead to a major scandal, the Supreme Court disagrees.
“It is not the case,” the court has ruled, that an independent group “merely poses less of a threat of the danger that has prompted regulation. Rather, it does not pose such a threat at all. Voluntary political associations do not suddenly present the specter of corruption merely by assuming the corporate form.”
The Texas Supreme Court has also reached decisions that Cook and the TEC are paying little regard. Aside from redefining “principal purpose,” the TEC invented new rules in October on permissible political speech that go beyond the “magic words” express advocacy test.
Those rules are similar to federal law on “electioneering communications” that govern mailers, advertisements, and such that appear shortly before an election, but they’re not easily squared with Texas law.
In 2000, the Texas Supreme Court ruled that a “direct campaign expenditure” – the Texas term for outside campaign spending – “includes only those expenditures that ‘expressly advocate’ the election or defeat of an identified candidate.”
Now, the TEC is apparently redefining the term to far exceed the limit set by the state’s high court.
Gov. Greg Abbott referred to that ruling in a statement last year on Cook’s efforts to impose new speech regulations.
“As a justice on the Texas Supreme Court, I wrote that laws like that are unconstitutional and I based that decision on United States Supreme Court decisions,” he said.
Contact Jon Cassidy at [email protected] or @jpcassidy000.