The Texas Supreme Court has become a public spectacle. It's bad enough that a majority of the Court performs as a wholly owned subsidiary of Texans for Lawsuit Reform. Now it's apparent that a third of the judges -- Nathan Hecht, Paul Green, and David Medina -- have no compunction about flouting ethics rules by using campaign funds as a piggybank for their personal travel to and from work. Texas Watch has filed complaints against all three judges with the Texas Ethics Commission.
Everybody who itemizes income tax deductions knows this basic rule about travel expenses: You can't claim a tax deduction for commuting to and from your job. The same reasoning ought to apply to using campaign funds to pay for commuting expenses. In fact, it does. The Ethics Commission has ruled one this point. Explicitly. Here is language from Opinion No. 133:
"The Texas Ethics Commission has been asked to consider whether a judge, newly elected to an appellate court, may use political contributions to pay for moving from his home city to the city in which the court sits. Another question is whether, if the judge keeps a residence in his home city, he may use political contributions to pay to maintain a residence in the city in which the court sits and to pay the cost of commuting to and from the city in which the court sits.
A candidate or officeholder may not convert political contributions to personal use. Elec. Code § 253.035(a). "Personal use" means a use that primarily furthers individual or family purposes not connected with the performance of duties or activities as a candidate for or holder of public office. Id. § 253.035(d).
This isn't just an interpretation by the Ethics Commission. It is THE LAW. It's in ELECTION CODE. These guys are LAWYERS. They are supposed to KNOW THE LAW. If they don't know the law, they can LOOK IT UP. If they don't want to look it up, they can CONSULT A LAWYER to go over their campaign finance reports. If they don't want to consult a lawyer, they can CALL THE ETHICS COMMISSION, which I did before writing this article, to get advice or to find out if there is AN EXISTING RULING on the subject. It took me less than two minutes to find out that Opinion 133 is directly on point and applies SPECIFICALLY TO APPELLATE JUDGES.
Every candidate for the Supreme Court knows that his workplace will be in Austin. A judge can choose to reside in Austin, so that he won't have to commute. Or he can choose to commute and pay his own expenses. But he can't hit up Baker & Botts or Winstead or Jackson Walker and their clients to contribute money to his campaign account so he can dip into the till to pay the Exxon-Mobil bill.
This is pretty basic stuff. Campaign accounts can be used for two purposes: for office expenses and for political expenses. Not for personal expenses. Officeholders can use their campaign funds to pay for trips back to their districts that include a political purposes--for example, a speech at the local Rotary Club. Unfortunately for judges, they can't really avail themselves of this loophole, because appellate judges rarely make political appearances back home, for the obvious reason that they can't talk freely about their work.
Here is what the San Antonio Express-News had to say about Justice Green's trips:
Green's explanation for his 272 trips to San Antonio over the last three years is that he had numerous speaking engagements. That would mean he was speaking to civic groups in San Antonio more than once a week. It seems more likely that he was commuting to his home in San Antonio, which is clearly prohibited by state ethics laws. If he was traveling for legitimate purposes, he should clear the air by providing documentation of his travels.
Medina's explanation was that he consulted his accountant. No disrespect intended to accountants, but ... they are not experts in campaign finance law. Even so, they are knowledgeable about federal tax law, and you might expect an accountant to red flag the conversion of campaign funds as a taxable event.
Hecht's travel was mostly by air. He says that his trips were for campaigning. This is an excerpt from an AP story that appeared in the El Paso Times last week:
Texas Supreme Court Justice Nathan Hecht said Wednesday he used campaign cash to pay for dozens of flights to his hometown last year because he was campaigning, even though he's not up for re-election until 2012.
.... (text naming the other two justices has been omitted)
According to campaign finance reports, Hecht reported 42 payments to airlines for in-state trips last year and acknowledged that "a good bit" of them were for travel to his hometown of Carrollton, where he still owns a home and attends church. There were also six other payments to airlines for trips outside the state, primarily to Washington, D.C.
None of the three justices is on the ballot this year.
I don't think that the offenses here qualify as egregious. Indeed, the Legislature may want to take a look at whether to allow reimbursement of appellate judges who wish to live in a place other the city where the court on which they sit is located, provided that the reimbursement comes from public funds rather than campaign funds. (If a commuting trip also involves a political appearance, the reimbursement should come from campaign funds.)
The larger concern is that the judges did not make sufficient effort to investigate the legality of their conversion of sizable sums of money from their contributors. They used campaign funds to subsidize their lifestyle. Judges should be held to the highest standard of ethics. Let me rephrase that. Judges should hold themselves to the highest standard of ethics. But the judges on the Texas Supreme Court do not have to worry about how they are perceived, because there is no accountability. The judges are bulletproof. All of them are Republicans. While Democrats have had some electoral success in courthouse and legislative races, they haven't won a statewide election since 1994. Republican judges have little to fear at election time because they are protected by TLR and the big firms with the big clients who always win -- BP being the most recent example. The Court is consistently criticized for being result-oriented at legal conferences, but there is no incentive for judges to change their behavior, either in their decisions or in their ethics, and there won't be until somebody loses a race.
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