Litigation between the Texas Ethics Commission (TEC) and the Texas Home School Coalition (THSC) has taken a turn towards the First Amendment, THSC stated Wednesday. THSC and the TEC have been locked in recent litigation over a dispute regarding whether the Commission has the authority to regulate political speech by grassroots advocacy groups. One of THSC’s attorneys in this case, Andrew M. Grossman, will represent THSC on this issue in a panel discussion this weekend in Austin at an event hosted by The Texas Tribune.
THSC argued that the Commission’s existing regulations on financial disclosures for political committees are ambiguous, at best, and in direct violation of existing case law and constitutional protections on free speech as applied to non-profit groups.
After just over a month of litigation, the Commission folded to THSC by issuing an advisory opinion agreeing that non-profit groups that spend less than 20 percent of their revenues on political expenditures are not required to register their donors list with the state. Additionally, the Commission withdrew its proposal to redefine “campaign contribution,” an approach that had been challenged by THSC in the lawsuit. The Commission instituted a new proposal to set the expenditure threshold for determining which groups must register as political committees at 25 percent.
Based on these concessions by the TEC, both sides agreed to settle THSC’s motion for a preliminary injunction, but THSC states that the changes by the TEC still fail to meet constitutional minimums for free speech protections. Both sides agree that Texas law establishes the criteria for determining whether a group is a political committee as whether or not political speech is their “principal purpose.”
But the Commission’s proposal is still flawed, because case law clearly prevents the government from regulating speech by groups that do not have “the major purpose” of participating in campaigns–a standard that requires a 50 percent threshold to trigger regulation. Moreover, the proposal’s thresholds for regulation are designed in ways that will cause confusion and uncertainty and require numerous case-by-case determinations, ultimately chilling speech by grassroots organizations that wish to avoid legal risk. The First Amendment demands far greater clarity.
Although THSC scored a victory with the changes agreed to by the TEC, it stated that litigation will continue until the Commission is forced back inside its constitutionally established limits and the free speech rights of Texas groups are recognized and protected by the state.