Judge Permits Candidate to Use Legislative Video of Incumbent Opponent in Run-OffWednesday, May 18, 2016
Ross Fischer of the Gober Group is the former Chairman of the Texas Ethics Commission and an expert in the field of Texas campaign finance and lobby laws.
The old adage that politicians love the sound of their own voices may be put to the test if recently filed litigation ultimately proves successful. For the past twenty years, it has been illegal in Texas to use audio or video footage of legislative proceedings in political advertising. This has had the effect of making sure that a legislator’s recorded comments on the floor of the Texas House or Senate – or those comments made in committee hearings – could not be used against them in a subsequent election.
More specifically, the law prohibits a person from using in political advertising any audio or visual materials produced by or under the direction of the legislature or of a house, committee, or agency of the legislature. A violation is subject to the Commission’s sworn complaint process and is punishable by a fine of up to $5,000.
However, in late April 2016, legislative candidate Briscoe Cain – in the midst of a run-off election against incumbent House member Wayne Smith – filed a lawsuit challenging the constitutionality of the provision. In his complaint, the candidate asserted that he wishes to use footage of the incumbent from the 2013 and 2015 sessions in his campaign’s political advertising. The lawsuit alleges that candidate Cain fears prosecution by the Texas Ethics Commission, and that the law broadly burdens the right to engage in constitutionally protected political speech. The lawsuit asserts that the use of audio and visual recordings is entitled to the same First Amendment protection as the written word. Candidate Cain also points out that the materials – paid for by the taxpayers – are public information and that the legislature cannot limit the use of public information in the context of protected political speech.
The Texas Ethics Commission has long known this that law was ripe for challenge. In its biennial report to the Texas Legislature in 2014, the Commission suggested that the law be repealed. In presenting the recommendation, the Commission’s then-chairman referred to the law as an “incumbent protection” provision. When the Legislature convened, however, not only did they fail to repeal the law, but they actually expanded it to apply to photographs as well as video footage.
The interested parties seem to generally acknowledge the law’s constitutional deficiencies, and the real issue is how vigorously – or whether – to defend the law. The Texas Attorney General – statutorily tasked with defending the law enacted by the legislature – has declined to represent the Ethics Commission in the case, forcing the Commission to retain outside counsel. The Commission’s current chairman has stated, “We agree with the Attorney General that the law is unconstitutional. The Commission tended to believe the videos were of a public proceeding and that this is public information paid for by taxpayers that should be available to the public. But the law as it currently reads says otherwise, and so we have no choice but to uphold what the law is.”
On May 17, 2016, a Harris County district court judge signaled the law’s imminent doom when he granted candidate Cain a preliminary injunction barring the Commission from enforcing the statute. Thus, the ruling paved the way for legislative video to be used in political advertising during the remaining days of the run-off period. The underlying case has been set for trial in December, when the fate of the statute will be finally decided.