AUSTIN — Attorney General Ken Paxton refuses to defend the Texas Ethics Commission in court as one of his largest political donors sues to dismantle the agency.
A newly revived lawsuit threatens to strip the ethics commission’s power to enforce state laws that shine a light on where politicians get their money. The lawsuit is the latest in a yearslong siege from Empower Texans, a tea party group that promotes small government and low taxes and aggressively campaigns against establishment Republicans.
In a budget request to state lawmakers filed last month, the commission said it will need $600,000 to pay a private lawyer to defend it in court because the attorney general will not.
The case now returns to a state district court in Harris County.
By law, the state’s lawyer is supposed to defend challenges to state laws, state agencies and individual state employees. The attorney general can decline to represent agencies, but that seldom occurs, experts say.
“It is rare that the attorney general refuses to help its regulatory agency, particularly one of the most important agencies — the one that tracks money in politics,” said Craig McDonald, director of Texans for Public Justice, a group that tracks political spending. “The attorney general has turned his back on campaign finance regulation in the state, and it sends a terrible signal to those who might abuse campaign finance laws.”
Paxton is following in his predecessor’s footsteps. In August 2014, then-Attorney General, now Gov. Greg Abbott refused to represent the agency. The practice has continued under Paxton, who took office in 2015. Both have received hundreds of thousands of dollars in political contributions from Empower Texans and its chairman.
Since then, the ethics commission has spent $430,000 defending itself against five Empower Texans lawsuits and seven appeals.
Post Edited: Paxton Punkin’ the Process https://t.co/7dsROKp4eE
— LawsInTexas (@lawsintexasusa) December 19, 2020
Marc Rylander, a spokesman for Paxton, declined to explain why Paxton refuses to represent the commission, saying he will not comment on “confidential discussions” between the attorney general’s office and the ethics commission.
“All of our decisions are guided by the same principle: We take the duty to defend the state seriously and routinely defend agency enforcement actions whenever consistent with our duty to uphold the Constitution,” Rylander said. “However, where we determine those two duties are in conflict, our first obligation is to defend the Constitution and the basic rights it guarantees to each and every Texan.”
Rylander declined to say whether Paxton’s donations from Empower Texans or its chairman, Midland oil and gas developer Tim Dunn, factored into his refusal to represent the ethics commission. Rylander also would not say whether Paxton has refused to represent other agencies.
The commission, created by the legislature in the 1990s, is critical to ensuring transparency in elections.
Empower Texans, founded in 2006, describes itself as a “non-profit service organization” that seeks to “educate and inspire Texans to exercise effective citizenship.” It runs several organizations, including two nonprofits and a political action committee. Dunn, who has given more than $6 million to the PAC, is its largest donor, records show. Information on donors to the nonprofits is not publicly disclosed.
“The greatest threat to our state’s economic growth and competitiveness is the weight of government on the economy,” the group says on its website. “We seek policy outcomes that provide increasing levels of economic liberty and opportunity for all Texans by controlling the size of government. Government power and reach must be strictly limited … ”
Consistent with that creed, Empower Texans is suing to strip the ethics commission of its regulatory powers. The commission is responsible for collecting information on political contributions and making it available to the public. The commission also enforces laws requiring politicians to disclose personal financial information.
Put another way, the commission enforces the laws that allow the public to see that since 2014, Paxton’s campaign has received $377,000 from the Empower Texans PAC, according to campaign finance disclosures filed with the commission. Empower Texans also secured a $1 million loan for Paxton’s campaign in 2014, and Dunn is Paxton’s largest donor, shelling out $405,000 since 2014, records show.
“The problem with any litigation where the agency has to spend its own funds to defend itself, is the unpredictability,” said Seana Willing, the ethics commission’s executive director. “If we had the Attorney General’s Office representing us, it wouldn’t be coming out of our general revenue.”
Willing said the legal fees are preventing the commission from increasing salaries and updating the software that allows the public to inspect campaign finance data.
“That $300,000 that we are using each year for outside counsel, if the [attorney general] were representing us, we could use that to make sure the electronic filing system remains state of the art.”
Empower Texans has given Paxton $782,000 in contributions.
“When a state deprives a person of liberty or property through a hearing held under statutes and circumstances which necessarily interfere with the course of justice it deprives him of liberty and property without due process of law.” Moore v Dempsey; Frank v Mangum, Tumey v Ohio https://t.co/UOoZlmHpzy pic.twitter.com/jt7xLa1wrP
— LawsInTexas (@lawsintexasusa) December 16, 2020
The commission and Empower Texans have fought in court for years. In 2012, two state representatives claimed one nonprofit arm of Empower Texans had morphed into a political action committee because it endorses candidates and grades lawmakers on their fiscal responsibility. The donors to nonprofit organizations are not public information, but if an organization is operating as a political action committee, then donors must be reported to the state.
The commission demanded that Empower Texans disclose the nonprofit’s donors and register its president, Michael Quinn Sullivan, as a lobbyist.
Empower Texans refused the demands of the Ethics Commission, which eventually dropped its case in 2016. But Empower Texans shot back, asking a judge to rule that the commission cannot regulate campaigns and political donations because it is a legislative agency that is acting with executive powers.
“We will pursue the separation of powers cases until the end,” said Joe Nixon, Empower Texans’ lawyer, adding he is confident the group will prevail.
An Austin appeals court ruled earlier this month that a district judge should consider Empower Texans’ claims. That will likely mean a costly trial for both sides. The commission is also involved in two other lawsuits with Empower Texans.
Paxton, who was first elected in 2014, has received a total of $782,000 from Empower Texans and Dunn. Empower Texans has also donated $100,000 to his wife, Angela, who is running for the state Senate.
Paxton is currently under indictment, accused of securities fraud and failing to register as an investment adviser. The ethics commission has no current role in the case, but in 2016 it issued an opinion that Paxton could not raise money for his legal defense outside of Texas.
Dunn also gave $60,000 to Abbott, who was the attorney general in 2014 when the office first declined to represent the commission.
Justice Gorsuch – Austin Investiture Justice Brett Busby to the @SupremeCourt_TX
“Civility and Justice in American Courts should be paramount. Lawyers cost too much. Getting to trial takes too long. Juries promised by the Constitution are rarely used.”https://t.co/nghPPUrFXs pic.twitter.com/xeQNuliS3d
— LawsInTexas (@lawsintexasusa) December 16, 2020
Willing said the commission will continue to defend itself against Empower Texans’ legal challenges, but it’s unclear how long those will continue. The agency has 45 days to appeal the recent ruling. In the meantime, the commission will present its budget request to the legislature in September.
McDonald, with the Austin-based watchdog organization, said the legal challenges against the commission could be detrimental.
“We have to know who are politicians are beholden to. We have to know who they are representing,” McDonald said. “One key way to find that out is to find out who is paying for their campaigns. In Texas, where there is so much big money flowing, it can have tremendous influence over a politician.”
