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Individuals and other politicians can spend money on Texas House of Representatives race, court agrees

Austin. A staunchly conservative Rockwall County MP and tea party activists have successfully sued to overturn restrictions on who can spend money to influence the Texas House Speaker contest.

On Tuesday, a federal judge in Austin accepted the proposed settlement and permanently barred the state from enforcing ethics laws that prevent outside money from being spent on a speaker race.

Royce City Republican Representative Brian Slaton, one of the three plaintiffs, said in the lawsuit that he wanted to use personal money “for correspondence and other communications to support” the candidacy of Arlington Republican Party Speaker Tony Tinderholt.

Slaton said he would also like to use campaign funds to contribute to Tinderholt’s efforts. Despite last month’s House Republican caucus smashing 78-6, the speaker’s vote was non-binding, Tinderholt said his name would be put forward on Tuesday, the opening day of this year’s legislative session.

Beaumont Republican Dade Phelan, the current Speaker, is in a good position to be elected to a second term as chairman of the House of Representatives.

The outcome of the lawsuit is unlikely to affect Phelan’s re-election as speaker next week, pundits agreed on Wednesday.

But whether this will fuel costly campaigns in future speaker contests or lead to unforeseen legal problems for outsiders trying to influence such elections remains debatable.

Tony McDonald, an Austin conservative civil rights and campaign finance lawyer, said he filed it as a “cleansing” of issues unresolved in a similar lawsuit 14 years ago.

McDonald, who is general counsel for Texas Scorecard, a group led by conservative activist Michael Quinn Sullivan, said that until this week, Walmart and other giant corporations could spend money to influence speaker races in Texas if they wanted to.

Less sophisticated political players, however, would not know how to “create a one-off, fancy structure for participation” to get around the now-neutralized state ban on foreign spending in the race, he said. However, financial interests could have easily done it, though it didn’t, MacDonald said.

“Will there be more spending on communications about the speaker race? Maybe, he said. “But it could be if we never filed a lawsuit: only those who had the privilege of being a lawyer can speak. Those who do not have a highly qualified lawyer cannot speak.”

Both McDonald and Steve Bresnen, the Austin lawyer who sued Sullivan and pushed for stricter enforcement of Texas ethics laws, said there is no practical way for far-right Republicans to use the decision until Tuesday’s speaker election.

But Bresnen said he was concerned that people who take it as a green light for future speaking competitions may regret it. According to him, voting in the House of Representatives for the speaker is “legislation” that meets the definition of “legislation” in state lobbying laws. People who advertise or hire people to help a budding speaker may have to register as lobbyists, he said.

“Some members of the public and some members of the Legislature may be trapped,” said Bresnen, who helped his boss, Lieutenant Governor Bob Bullock, draft the legislation that created the ethics commission in the early 1990s.

Asked if easing restrictions on external spending could intensify internal party battles and lead to deadlocks, such as the congressional stalemate this week over California Republican Kevin McCarthy’s attempt to become Speaker of the House of Representatives, Bresnen replied:

“As for the connection with Washington, I just don’t feel the atmosphere here. The outcome of this lawsuit does equate to some people using money in politics, but I don’t think that necessarily makes Austin Washington.”

Slayton did not respond to a text message asking for comment. Neither did Phelan’s allies, representatives Charlie Guerin, R-Fort Worth, and Dustin Burroughs, R-Lubbock. They tried unsuccessfully to intervene to block the McDonald’s lawsuit, arguing that the speaker contest is a “domestic legislative matter” and not a “traditional election campaign”.

Rep. Brian Slaton, R-Royse City, said in a lawsuit that he wanted to use personal money “for correspondence and other communications to support” the candidacy of Arlington GOP Speaker Tony Tinderholt. Slaton said he would also like to use campaign funds to contribute to Tinderholt’s efforts.(Bob Daemmrich/CapitolPressPhoto)

U.S. District Judge Robert Pitman refused to make Guerin and Burroughs parties and agreed to a settlement between the Texas Ethics Commission, which enforces campaign finance and ethics laws, and Slaton and his co-plaintiffs. They were San Antonio conservative activist Robert Bruce and the Grayson County Conservative GAC, a universal political action committee.

All three plaintiffs said they wanted to spend the funds to support Tinderholt, but state law unconstitutionally violated their right to free speech.

In his order barring Guerin and Burroughs, Pitman cited the controversial 2010 U.S. Supreme Court ruling Citizens United v. FEC, which allowed corporations and other outside groups to spend unlimited funds on elections.

Spending on a Texas speaker race by anyone other than an officially registered speaker candidate was banned by the Legislature in 1973. This came shortly after the Sharpstown bank share fraud scandal, which tarnished the reputation of several lawmakers, including former Speaker Gus Mutcher Jr. D-Brenham.

Pitman permanently barred the commission from enacting laws that prohibited the GAC and candidates from using campaign money “to help or defeat a speaker candidate” and that prohibited individuals from spending more than $100 on “correspondence” aimed at influencing the speaker’s election.

Appointed by former President Barack Obama, Pitman said he was simply echoing a 2008 decision by another Austin federal judge, Lee Yakel. In a similar case filed by the Plano Free Market Foundation, Yickel said the Legislature could have a vested interest in cracking down on corruption in the Texas House of Representatives races. But he failed to accurately adapt the 1973 law and balance it with the constitutional rights of the foundation and two other plaintiffs, the Texas ACLU and the Texas Eagle Forum PAC, he said.

“Electing a speaker is thus not a matter of housekeeping,” wrote Yickel, who was appointed by former President George W. Bush. “This is a matter of great political importance and a legitimate subject of public discussion. Therefore, public speaking in connection with the election of a Speaker is subject to all the protections of the First Amendment.”

After 2008, the Legislature repealed some sections that Yickel called unconstitutional, but left almost identical sections in place. According to McDonald, this created confusion.

The Speaker, elected every two years by the entire 150-member House, wields considerable power, presides over the chamber’s meetings, and selects committee heads that will review hundreds of bills over a 140-day session.

Slayton is among the staunch conservatives who are in favor of barring the GOP-controlled House of Representatives from allowing any Democrat to chair any committees. Their proposed rule change, although backed by state GOP chairman Matt Rinaldi of Irving, is expected to be defeated when the House of Representatives passes rules for the Jan. 11 session.

The 2023 Texas legislature will be older and more male-dominated than the state’s population.

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