Last year THSC filed a federal lawsuit against the Texas Ethics Commission (TEC) to force it to clarify what nonprofits like THSC can do under the law in Texas without fear of being investigated and fined, as others have been for taking part in political speech. Last fall the TEC capitulated by outlining that if nonprofits spent 20 percent or less of their income on political speech, they would not be considered “political committees” and thus not have to worry about investigations and fines.
In spite of those changes and the failure of those who wished to chill political speech of nonprofits in the legislature this last spring, the TEC is now adopting rules that would change the definition of a “political committee” that would very likely snare many nonprofits like THSC, Texas Right to Life, and Empower Texans and subject them to the punishment of public investigations and severe fines and penalties. Indeed, the TEC has escalated action against one such group this week in a case that is almost three years old and in which it has lost in court twice and is currently on appeal.
The Chairman of the TEC made comments recently that seemed to indicate that churches that are involved in certain issues of public policy, like the controversial bathroom ordinance in Houston, may also be at risk of actions by the TEC.
On October 5, attorneys representing THSC and other nonprofits gave testimony and comments at the TEC hearing on these new rules. You can read the comments made by the attorney on behalf of THSC. He later followed up with additional comments to the TEC and its legal counsel and staff based on discussion during the hearing. Here is an excerpt:
“Likewise, Webster’s Third New International Dictionary (1971) defines ‘principal’ as ‘most important, consequential, or influential’ and offers an illuminating usage example by John Steinbeck: ‘a chicken stew in which the principal ingredient was not chicken but sea cucumber.’”
“Here it is the Commission that is peddling sea cucumber as chicken stew. In its view, an organization whose principal purpose is unrelated to electoral politics may nonetheless be deemed and regulated as a political committee, and thus forced to shoulder heavy regulatory burdens as a result of engaging in political speech incidental to its principal purpose. Simply calling a trade association or an advocacy group or any other civic organization a ‘political committee’ does not make it so. The Legislature used the words ‘principal purpose,’ and those words must be accorded their ordinary meaning. If an organization’s principal purpose is something other than ‘accepting political contributions or making political expenditures,’ it cannot be regarded as a political committee.”
It seems clear that the TEC is bent on limiting or “chilling” the speech of conservative nonprofits and, unless it relents, it will find itself in federal court in Lubbock answering for its unconstitutional rules.