Last week the chairman of the Texas Ethics Commission (TEC) responded to a letter written to him by six Republican nominees for Texas Senate addressing the ongoing controversial efforts by him and the TEC to adopt new rules to regulate the free speech of organizations like THSC.
In the TEC’s letter, the chairman acknowledges that the THSC lawsuit motivated the agency to, for the first time, provide a legal opinion and some clarity to the TEC’s position on its policy regulating the free speech of nonprofits that engage in political speech–specifically those whose “principal purpose” is political. As a home schooler himself and one who is familiar with THSC, the chairman states that THSC’s principal purpose “as he knows it” is not political. However, if the TEC happens to decide in the future that THSC is political, we’re at risk of being subjected to the same stifling requirements as political action committees.
The TEC chairman also acknowledges that the House State Affairs Committee requested that the TEC adopt rules to deal with organizations that participate in political speech under the U.S. Supreme Court’s 2010 Citizens United decision. This is clear acknowledgment of what many have long known: The Texas House leadership under Speaker Joe Straus is pushing for the regulation of nonprofits that legally exercise their First Amendment rights in the political arena.
The legal issue here is what constitutes “principal purpose” in the statute outlining the TEC’s authority. The TEC says that since the statute says, “a principal purpose” instead of, “the principal purpose,” the statute clearly intended that there could be more than one “principal purpose” of a group, and if one of their principal purposes is political, then they are fair game for regulation. At a TEC hearing on October 29, commissioners were warned by David Keating, a constitutional law expert who heads the Center for Competitive Politics, that their newly adopted rules defy current Supreme Court precedent.
So there you have it. The TEC says that “a” implies plurality of purpose and they are therefore going to pursue rules to regulate the free speech of nonprofits based on whatever definition the TEC decides will give them the fig leaf they need to regulate, chill, and intimidate nonprofits in the political arena. We’ll see what the federal judge in Lubbock has to say about that.
I wrote last month about the lawsuit that THSC filed against the TEC over this very issue. The TEC responded by clearly indicating they would not file against THSC, enabling us to settle our request for a preliminary injunction providing some certainty THSC will not be prosecuted by the TEC this fall. However, the case overall is still pending.
The Republican Senate nominees point out very clearly that the TEC is pursuing an attempt to do what the Legislature was thwarted in doing by Governor Perry’s veto of SB 346, a bill that was clearly designed to intimidate and “chill” free speech in political matters.
The nominees said, “Freedom of speech is perhaps the most essential freedom in our Republic and should be protected from intimidation by any government or individual seeking to abuse power. This truth should weigh heavily in the minds of every Texan, as more is revealed about the federal government’s repeated attempts to stifle dissenting political voices–even through the IRS. Texas must not become Washington, D.C.”
Many thought this could never happen in Texas, and yet we have just witnessed the city of Houston issuing subpoenas for the sermons or speeches of several pastors in the city who have been vocal in the opposition to a city ordinance. The mayor of that city stated that if pastors are speaking about political issues, they are “fair game.”
The TEC seems intent on moving forward in the adoption of rules that would make chilling the speech of nonprofits possible.