Freedom of Information Foundation of Texas

By Emily Ramshaw and Aman Batheja
Originally published, May 16, 2013 

This is one in a series of occasional stories about ethics and transparency in the part-time Texas Legislature.

All session long, freshman state Rep. Giovanni Capriglione has been clamoring for greater transparency, trying to force lawmakers and their relatives to disclose their contracts with government agencies and shine a light on closely held state pension benefits. When his first transparency bill got a committee hearing, his senior House colleagues effectively showed him the door.

But when it came time this week to vote on Senate Bill 346, a measure that would force certain tax-exempt, politically active nonprofits to disclose their donors, Capriglione, R-Southlake, was a “no.”

Capriglione said he voted against the bill — which ultimately passed the House without amendments to ensure its safe arrival to the governor’s desk — because it includes language that exempts labor unions. (It’s terminology the bill’s House sponsor, Rep. Charlie Geren, R-Fort Worth, had vowed to clean up in an omnibus ethics bill headed to the floor next week.)

“I would have voted for the bill if it didn’t have that exemption,” Capriglione said, “though still with concerns.”

Opposition to the bill from Michael Quinn Sullivan, a conservative activist whose nonprofit Texans for Fiscal Responsibility was a key backer of Capriglione’s campaign and of his transparency efforts, was much more pointed. In an email blast and several social media postings, Sullivan, whose group is a 501(c)(4) — the federal tax code category SB 346 is meant to apply to — called the bill an “Obama IRS-style attack” that would open up every donor to conservative groups to “vicious attack.”

In this session’s transparency fight, ethics watchdogs suggest there has been plenty of irony to go around.

The Legislature’s veteran Republicans — tired of Tea Party groups and far-right activists like Sullivan working to defeat them via politically active nonprofits — backed a bill requiring such groups to report their donors. But they intentionally let a bill to subject lawmakers and their relatives to greater financial scrutiny, Capriglione’s House Bill 524, die on the vine; it made it out of committee but never to the House floor.

“We’re subjecting them to transparency,” state Rep. Carol Alvarado, D-Houston, said during House debate on SB 346 early this week. “Yet some in this body don’t want transparency that directly affects them.”

Meanwhile, Sullivan and other conservative activists actively promoted lawmaker transparency measures like Capriglione’s, but tried to defeat legislation requiring them to reveal their groups’ donors.

“The people that holler the most for transparency,” Geren said during debate on SB 346, “are the ones fighting it now.”

Reached via email, Sullivan said there was no contradiction.

“Pretending like they are the same is intellectually dishonest at best,” he said.

He argued that Capriglione’s lawmaker transparency bill, which would’ve required legislators to disclose government contracts with businesses in which they or their immediate family own at least a 50 percent stake, was “targeted at deterring corruption and the appearance of corruption.” Forcing certain politically engaged nonprofits to reveal their donors “is designed to thwart the right of citizens to engage in anonymous political speech,” Sullivan said.

“Those legislators who want to hide their contracts and family sweetheart deals are no doubt eager to make this dishonest comparison,” he added.

But Craig McDonald, executive director of the left-leaning money-in-politics group Texans for Public Justice, said it’s a fair comparison. His group is also a 501(c)(4) and will have to provide details about its donors under the legislation. He said the back-and-forth on the ethics bills working their way through the Legislature just goes to show that “transparency is good unless it applies to you.”

The full House may yet get a chance to vote on Capriglione’s government contracts measure; he has said he’ll offer it as an amendment on Monday to an omnibus bill to renew the Texas Ethics Commission. The donor disclosure bill will likely get another vote that day too. Geren has said he’ll offer it as an amendment to the Ethics Commission bill — without the exemption for labor unions — to give the measure a shot in the event Gov. Rick Perry vetoes SB 346.

There’s a decent chance Perry could nix that bill. The labor union exemption, which even the bill’s supporters suggest is problematic, could give the governor grounds for a veto.

By Emily Ramshaw, Texas Tribune
Originally published, May 1, 2013

 This is one in a series of occasional stories about ethics and transparency in the part-time Texas Legislature.

Six months before the Texas Legislature kicked into gear, Gov. Rick Perry told reporters that candidates for public office should be as “transparent” as they can possibly be with their personal financial interests.

It has remained the term du jour for state leaders this legislative session, used by everyone from House Speaker Joe Straus to Lt. Gov. David Dewhurst to endorse honesty in budgeting, improve grant-making in the state’s troubled cancer agency and get to the bottom of conflicts in higher education.

But with just four weeks remaining in the legislative session, there has been little to no pressure from the top — including key committee chairs — to pass measures that would force greater transparency upon Texas’ elected officials.

While Dewhurst has not been out promoting lawmaker transparency bills, the lieutenant governor said that “government transparency has always been a priority of mine.” He is supporting legislation the comptroller proposed to help taxpayers better understand state finances, and added that “the Legislature has also reacted strongly this session to [the Cancer Prevention and Research Institute of Texas'] lack of transparency as well as transparency issues with the UT Board of Regents.”

Straus said while he believes ethics reforms that directly affect lawmakers are important, he wants to “let the process work.” (The bill to reauthorize the Texas Ethics Commission, which could potentially be loaded up with transparency amendments, could hit the House floor as early as this week.) Straus also pointed to his own appointees to the board that oversees the Ethics Commission, and said he expected them “to take the lead on many of these issues.”

Perry wouldn’t comment on specific legislation. While he has voluntarily released his own tax returns for years, and said that “transparency and accountability to the people of Texas is extremely important to me,” he has stopped short of publicly backing measures that would force legislators to disclose more information.

Instead, he said, “Texans deserve a much higher level of transparency when it comes to their tax dollars. We need to make it easier for them follow how their hard earned dollars are spent in Austin.”

State Sen. Wendy Davis, D-Fort Worth, said it’s one thing to call for transparency in state government, another entirely to hold lawmakers to higher standards. “Anytime a bill impacts the legislators directly, it seems to go nowhere,” she said. “It shields us from transparency.”

Several bills in the House and Senate that would improve reporting on lawmakers’ outdated personal financial forms or put the archaic paper filings online haven’t even gotten hearings in the three committees where they’ve been referred: Senate State Affairs, House State Affairs and House Elections.

Three bipartisan bills aimed at slowing the revolving door that sends elected and appointed officials directly into the lobby appear jammed; two haven’t received hearings and one has been pending in committee for weeks.

And a measure with 25 co-authors that was nearly derailed during a tumultuous February hearing — Rep. Giovanni Capriglione’s bill to require lawmakers and their immediate families to report contracts with governmental entities — is still tangled up in House State Affairs. The Senate companion filed by Davis hasn’t gotten a hearing.

Asked about the fate of such ethics legislation, House State Affairs Committee Chairman Byron Cook, R-Corsicana, said it’s not that legislators are opposed to shining a bright light on their own affairs. “The whole issue with transparency is, let’s deal with it in a forthright manner,” he said. “If we’re going to advance transparency, let’s make sure we do it right.”

His Senate counterpart, State Affairs Chairman Robert Duncan, R-Lubbock, said he’s not opposed to such measures, but that they should be executed in the context of comprehensive reform, rather than with “single-shot” bills from lawmakers fresh off the campaign trail.

“In the system of ethics reform that we operate under, I think most members believe that these single-shot bills shouldn’t be heard, and we shouldn’t deal with ethics reform on a piece-meal basis,” he said.

So far, the only “transparency” legislation getting real traction would establish interim studies on ethics, require elected officials who run for higher office (i.e., Perry) to cover their travel and security expenses with campaign funds and force politically active nonprofits to reveal the identities of their major donors. None of those bills change the level of disclosure for lawmakers themselves.

Capriglione, R-Southlake, expressed frustration with the process. He said that the lower chamber has already passed an interior decorating bill, but not meaningful transparency legislation. “I thought we’d be a lot farther along by this point, given the conversations we were having prior to the session,” he said.

A spokesman for Dewhurst said that while the lieutenant governor has disclosed his own personal finances (in the form of tax returns during his failed bid for U.S. Senate), legislating lawmaker transparency can be complicated. He noted that the Center for Public Integrity ranked Texas fourth for financial disclosure by lawmakers.

“Texas needs to require sufficient disclosure to allow voters to make informed decisions and help avoid conflicts of interest,” said Travis Considine, chief spokesman for Dewhurst. “But we don’t want to unnecessarily discourage good people from running for office because the process is too invasive for them and their family.”

By Richard Wolf, USA Today
Originally posted, 4.29.13 

WASHINGTON — States may have little reason to restrict public records access to their own residents, but the practice is not unconstitutional, the Supreme Court ruled Monday.

The unanimous decision, allowing Virginia to favor its residents under its Freedom of Information Act, goes against media organizations and professional data miners that had sided with the law’s out-of-state challengers.

During oral arguments in February, several justices had questioned whether the state’s law served any purpose, since non-residents can hire residents to get information. In his ruling, Justice Samuel Alito noted much of the data is available on the Internet.

Still, Alito said, the state law “did not abridge any constitutionally protected privilege or immunity” because access to public records is not a “fundamental” privilege, such as employment.

While the Constitution’s privileges and immunities clause “forbids a state from intentionally giving its own citizens a competitive advantage in business or employment, the clause does not require that a state tailor its every action to avoid any incidental effect on out-of-state tradesmen,” Alito said.

The decision had been expected, since most of the justices’ questions during oral argument focused on the rights of states to favor their own residents. Justice Ruth Bader Ginsburg noted states can restrict who votes in their state. Justice Antonin Scalia said perhaps the state “didn’t want outlanders mucking around in Virginia government. Why isn’t that reasonable?”

The federal government and all 50 states have laws giving people the right to inspect some government records through the Freedom of Information Act (FOIA). The laws are used by journalists, researchers and a growing industry that mines data from government records, which are used to do everything from selling real estate to setting credit scores.

At least seven states restrict that right to residents of the state. Their laws are protected by the Supreme Court ruling, but it doesn’t necessarily extend to other state laws that treat residents differently from non-residents.

The challenge to Virginia’s law began when Mark McBurney, a Rhode Island resident who used to live in Virginia, asked state officials for copies of records he hoped would shed light on why they hadn’t enforced an order requiring his wife to pay child support. Officials rejected his request because he had moved to Rhode Island.

McBurney and another man, Roger Hurlbert of California, sued, arguing that the residents-only limit violated the Constitution’s privileges and immunities clause and amounted to an improper restriction on interstate commerce.

Gannett Co., USA TODAY’s parent company, joined an amicus brief asking the court to invalidate Virginia’s residents-only provision.

By Caleb Melby, Forbes Staff
Originally posted 4.29.13 

Earlier this month, I wrote about the vicious court battle taking place in Dallas between billionaire corporate raider T. Boone Pickens and his son Michael, who, through his blog, alleges that his oil billionaire father emotionally abused him, which he claims led him to become a drug user. Boone alleges that Michael is a cyberbully and has sued him for defamation, libel, invasion of privacy, harmful access by computer, and extortion. For more background on the case, you can read my earlier report here.

There is much evidence in Boone’s favor, including interviews of individuals not involved in the case, conducted by FORBES, that back his version of events. But Michael has one defense that just might stick.

A 2011 law called the Texas Citizens Participation Act is designed to protect Texans’ right to free speech, assembly and association from frivolous litigation, or Strategic Litigation Against Public Participation (SLAPP) suits.

Two experts FORBES spoke with, Arif Panju of the Freedom of Information Foundation of Texas and Alicia Wagner Calzada of law firm Haynes Boone, both proponents of the statute, say that the spirit of the law is designed to protect citizens and journalists with less cash from being bullied by interests with more cash.

Michael’s attorney Collin Porterfield pointed to the statute in his motion to dismiss the case. The court is scheduled to hear arguments pertaining to that motion on May 17. Porterfield suspects that the family’s filing of the case, which he says came without any prior warning communicated to Michael, was designed to squelch Michael’s speech immediately, with the assumption that he wouldn’t be able to afford an attorney.

But while the TCPA is designed to protect citizens from costly, frivolous lawsuits, the statute makes an exception for “meritorious lawsuits for demonstrable injury.” That’s what Michael’s family is trying to prove, having submitted to the court copies of Michael’s blog posts and Twitter feed. They have until the May 17 date to demonstrate that the case has merit. If they fail in this regard, the case will be dismissed.

“The burden is on the plaintiff to prove the allegation is false,” Calzada tells FORBES. “There has to be some ability of the plaintiff to prove that the information reported is untrue in order for the defamation claim to stand.” Porterfield says that he sees no way that the family will be able to meet this standard.

“They have to establish that the overall fabric of his story is false,” Porterfield says. “Picking out a sentence here or there isn’t going to get them anywhere. I don’t think there is any chance that they can do that.”

On April 24, the family filed a motion for a limited deposition of Michael to review the blog, email and Twitter correspondences and the various allegations he has brought against his family. Given that the allegations stretch back more than half a century, if the discovery motion is granted, it will be interesting to see how both sides attempt to prove the veracity of their version of history. The court will hear arguments on May 1 to determine whether or not to grant Boone and his family this deposition.

In his motion to dismiss the case filed on March 29, Michael says his family’s case threatens his First Amendment rights. Drug abuse is a matter of “public concern” he argues, and family abuse is directly linked to that. Further, he points out, Boone is a “public figure” (easy enough to grant, given Boone’s frequent media appearances, often in relation to energy policy).

“[…]Instead of exhibiting any semblance of self-reflection, in a grand exhibition of hubris, ego-centrism and paranoia, the Plaintiffs sued to enlist state action (i.e., the Court) to shut Mike up,” the motion reads. “Better to sweep one’s dirt under the rug rather than engage in the hard work of cleaning it up.”

As has been the case throughout this legal battle, the family disagrees. “It is not the purpose of the Act to permit persons publishing false, harmful, extortionate and destructive statements to hide behind an assertion of the First Amendment,” wrote Leland de la Garza, the family’s attorney, in an April 10 response to Michael’s motion for dismissal. “If all matters touching upon the human condition are matters of ‘public concern,’” the response continues, “then nearly every matter on which a person speaks would be subject to this statute.”

“We will not discuss aspects of our legal case or strategies,” said Jay Rosser, a spokesman for the plaintiffs, in a written statement that largely echoes a previous one from weeks earlier. “[…] Our concerns over [Michael’s] physical and mental health have only increased in recent weeks because of his escalating false, malicious and defamatory blog postings. We’re grateful the public sees this for what it is, and for the outpouring of sympathy the family has received.”

The 2013 Bernard and Audre Rapoport State Conference is set for Friday, Aug. 9, at the Sheraton Austin – Capitol located at 701 E. 11th St. Conference in downtown Austin. Registration will open soon; meanwhile, if you’d like to come in early, on Thursday, Aug. 8, you can book a room now at the low rate of $159. If you’d like to stay the weekend – Friday, Aug. 9 and/or Saturday, Aug. 10 — the same rate will apply on a space available basis.

For more information, Sheraton’s designated Freedom of Information Foundation of Texas web page.