A Georgia state senator named Roscoe Emory Dean Jr. and a small town city manager named Thomas Bigley taught me the real dangers to democracy of dark money and of leaving prosecutions of corrupt officials up to their local district attorneys. Roscoe and Tom tried to raise $10 million from Colombian drug lords to finance Dean’s campaign for governor.
My experiences from covering Dean’s corruption has made me disappointed in the various “ethics reforms” bouncing around the Texas Legislature this year. The reforms often are petty and political, while others are designed to turn legislators and state officials into a special class of people not subject to the same laws as everyone else in the state. And as much as I dislike so-called dark money, don’t expect an ethics bill that includes its disclosure to get past Governor Greg Abbott. As a Texas Supreme Court justice in 1998, Abbott wrote the opinion protecting donors to political groups from being subject to disclosure.
Since we are all products of our experiences, let’s start with political corruption on the Georgia coast, something I covered for The Florida Times-Union. The time was the late 1970s and the drug cartels were corrupting small-town governments up and down the Florida and Georgia coasts. With more talent than sense, I spent a lot of time doing investigative reporting on politicians in a small town called St. Marys and a McIntosh County sheriff named Thomas Poppell.
The high sheriff once engaged in a machine gun battle with U.S. Customs officers and the Drug Enforcement Administration as they attempted to bust a shrimp boat full of marijuana. Amazingly, no one was injured. Poppell claimed he was going to bust the shrimp boat but the feds invaded his county without notifying him, leading to a mistaken middle-of-the night shootout. The feds had a different idea of what was going on but couldn’t prove it. One of the last times I covered Poppell before he died was the federal trial of one of his deputies who was busted helping unload a boatload of marijuana. The trial was in federal court because no McIntosh County official was going to cross the sheriff – those who did tended to disappear on fishing trips.
In St. Marys, I spent time connecting the dots between drug dealers in South Florida and efforts by city officials to lease the municipal airport to a flight operator with ties to the cartels. Bigley, who was a heck of a nice guy, was the city manager. And the locals received a certain level of protection from Dean, a swaggering portrait of an old-style Southern politician who would have been best portrayed by Charles Durning. Tipped that Dean was trying to raise money from the cartels for a run for governor, the Georgia Bureau of Investigation and the Florida Department of Law Enforcement ran a sting, with an FDLE officer acting as a Colombian dealer with limited English. When the case eventually came to trial, Dean could be heard on a secret tape speaking loudly and slowly telling the FDLE agent that he would allow him to smuggle “funny cigars” if he would give Dean money to run for “el gubernator de Georgia.”
I returned home to Texas convinced that unfettered money – whether from drug lords or legitimate parties, Democrat or Republican – is a corrupting influence and a potential cancer on democracy. A lot of my career was dedicated to linking government acts or perks to campaign contributions. (If money changes hands before an official act, it’s a bribe. If the donation comes afterward, then it is a gratuity.) Until this year, I had rarely seen an ethics bill that I did not believe would improve our government. What is passing as ethics reform this year comes far closer to the petty and personal than it does to creating good government.
Let’s start with the waste of time debating dark money in Texas politics. There is absolutely no doubt in my mind that Abbott will veto any legislation that includes disclosure of dark money donors as then-Governor Rick Perry did in 2013. For one, Abbott on the campaign trail last year said he opposed such legislation. More than that, Abbott wrote the 1998 opinion to keep donor names secret when there was an effort made to find the funding of the Bay Area Citizens Against Lawsuit Abuse in Corpus Christi. The Texas Nonprofit Corporation Act required full disclosure of all a nonprofit’s finances, a holdover from the days when nonprofits were charities, not secretive political operations. Abbott’s words:
“Compelled disclosure of the identities of an organization’s members or contributors may have a chilling effect on the organization’s contributors as well as on the organization’s own activity.”
The First Amendment right of association is rooted in NAACP v. Alabama, a 1958 Supreme Court ruling that the state could not obtain the group’s membership list, a noble ruling designed to halt intimidation. In more recent years, political groups have bastardized that opinion to create a system of corrupting dark money that hides donors from the public light of day.
In a recent op-ed in The Austin American-Statesman, Public Citizen counsel Carol Birch wrote that dark money in Texas politics rose to $2 million in 2014.
To illuminate dark money, the bill should require identification of all sources of funds used for election campaigns. This principle should apply to direct expenditures by for-profit and nonprofit organizations designed to influence elections.
Representative Byron Cook added dark money language to SB 19 on Friday, but face facts, it is DOA. Also, the House’s motivation to regulate dark money has been fear of Michael Quinn Sullivan and his Empower Texans to pour money into legislative races without exposing his donors. Texas has no restrictions on how much an individual can give to a political campaign so until recent years there has been no major effort to conceal donor identities. And I suspect that if Empower Texans donors were known, it would not dissuade them from giving money. Dark money just makes them a special class of contributors who can avoid the daylight of transparency.
Unlimited political donating by individuals and corporations strikes me as the antithesis of the concept of one-man, one-vote, with money giving the wealthy and powerful a greater say in influencing the political system than the poor and powerless. It is a step toward Dallas oilman H.L. Hunt’s dream of a Utopia in which the wealthy gained additional votes according to the greater share of taxes they pay. But with Abbott’s position and recent U.S. Supreme Court decisions such as Citizens United, there is little reason to believe any attempt to force disclosure of dark money in Texas would survive. Regulation of dark money is going to have to start at the federal level and answer the question of whether spending money actually is equal to free speech. Including dark money in a Texas ethics bill just seems to predestine true ethics reform in other areas to failure.
The second part of Cook’s version of the ethics bill is exactly the kind of backlash I feared from the American Phoenix Foundation hidden camera investigation of legislators.
Jay Root of the Texas Tribune reported that a new draft of the state ethics bill includes a limitation on recording legislators in the Capitol.
Senate Bill 19 also takes aim at the people who secretly record or film at the state Capitol. Specifically, it would require people who record conversations with lawmakers inside the Capitol to gain the consent of all parties to the conversation or face a civil lawsuit.
This obviously is aimed at the APF workers who are confronting lawmakers with loaded questions while recording them with hidden cameras. Lawmakers feel like the activists are bording on harrassment. However, the expectation is that if the APF has embarrassing video footage, it is from bars, restaurants and fundraisers.
Let me tell you why this is bad language that could become bad law and would establish legislators as a privileged class of people.
1. When Joe Pickett threw Jonathan Stickland out of the transportation committee over witness sign-ins on a bill to ban red light cameras, the House initially locked down the official video. The only available audio or video of the event was shot by a Stickland supporter from Arlington. This language could make that citizen liable in a lawsuit for recording lawmakers in a public hearing in a government owned building.
2. Similarly, a citizen who confronts a lawmaker in the Capitol over a public policy dispute would not be able to record the lawmaker to get the lawmaker’s position on the record.
3. The news media could end up only being able to record and reproduce words that the lawmakers agreed to have broadcast. Essentially, it would allow the media to be only shills for legislators and never critics. If I wanted to record a lawmaker in a surprise hallway interview about a $10,000 campaign donation he or she had taken from a lobbyist whose bill they were carrying, I’d have to first say, “May I record you.” I recently witnessed Senator Brian Birdwell shut down a reporter by saying, “I don’t do drive-bys,” when the journalist tried to catch him on the fly for a question.
Much the same can be said about the legislation to move the Public Integrity Unit out of Travis County. I understand why Republican lawmakers might not want to go before grand juries and petit juries in Travis County to face partisan Democrats. But by moving public corruption cases of legislators and state officials to their home counties creates a situation where politicians like Roscoe Dean and Tom Poppell are less likely to be prosecuted. We need look no farther than the fact the district attorney friend and former business partner of Texas Attorney General Ken Paxton had to be shamed by The Dallas Morning News and a Collin County grand jury into relinquishing an ethics investigation of Paxton to a special prosecutor.
This is long enough already, so I’m not going to go into all the petty personal politics and paybacks that were included in SB 19 as it passed through the Senate. Greater personal financial disclosure already has run into walls in the House and Senate. Probably the only ethics reform that has even a remote chance of passing would be greater disclosure of lobbyists wining and dining legislators.
Unfortunately, this may be a year when the best ethics reform is no ethics reform at all.