Burnt Orange Report

Legal Opinion on Rep. Chisum Prop 2 E-mail

By Phillip Martin

Yesterday afternoon, Rep. Chisum issued a press release through the Texas House e-mail system titled "False Campaign Meant to Destroy Prop 2." Here is part of the press release:

"The folks who produced this recording have laid all integrity aside," Rep. Warren Chisum (R - Pampa) said. "The language for Proposition 2 has been reviewed by the legislature and some of the state's top attorneys. This is a scare tactic orchestrated by individuals who are willing to do anything to make sure Proposition 2 is unsuccessful in the polls. I am appalled that people would take advantage of others by disseminating this type of widespread deceit."

There is some question as to whether or not the press release constitutes political advertising. If it did, since it was sent out through the Texas House of Representatives e-mail system, it could violate the statutory ban on the use of public funds for political advertising. Personally, I wasn't sure if it did, but I received the following legal opinion in my e-mail (I added links to the election code sections cited):

Texas law prohibits the use of “public funds for political advertising.” ELEC. CODE § 255.003(a). “Political advertising” is defined as “a communication supporting or opposing . . . a measure that . . . appears . . . in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication[.]” Id. at § 251.001(16). A “measure” is any “question or proposal submitted in an election for an expression of the voters’ will[.]” Id. at § 251.001(19). An internal e-mail system, including one belonging to a legislative agency, may not be used to distribute political advertising. See id. at § 255.0031. Violations of the ban on use of public funds for political advertising or the ban on distribution by internal e-mail are Class A misdemeanors. Id. at § 255.003(c). The statute creates an exception for “a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.” Id. at § 255.003(b).

The legal opinion, which was anonymously sent and is contained in full below the jump, argues that the Texas Elections Commission has ruled in certain school board cases (which are cited in the legal opinion) that the magic words test doesn't necessarily apply if state resources were used for general campaign advocacy.

Again, I'm certainly no legal expert, and I'm not pretending to be -- I'm merely reporting what's out there. This legal opinion, if nothing else, is well-written, well-researched, and could have some serious merit. I'd imagine someone would need to issue a complaint against Rep. Chisum and a judge would have to rule on the actual legality of the press release to see if this was a real thing or not.

Personally, what strikes me most about the Rep. Chisum e-mail, is that he chooses to attack Save Texas Marriage, yet says nothing about the KKK rally that will go on in downtown Austin next weekend. I mean, really -- which group would you assoicate with the charge of using scare tactics and willing to do anything to get what they want?

Based on a quick review, I conclude that the press release by Representative Chisum probably violates the statutory ban on the use of public funds for political advertising. It probably does not violate the statutory requirement that certain disclaimers be placed on political advertising.

Texas law prohibits the use of “public funds for political advertising.” ELEC. CODE § 255.003(a). “Political advertising” is defined as “a communication supporting or opposing . . . a measure that . . . appears . . . in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication[.]” Id. at § 251.001(16). A “measure” is any “question or proposal submitted in an election for an expression of the voters’ will[.]” Id. at § 251.001(19). An internal e-mail system, including one belonging to a legislative agency, may not be used to distribute political advertising. See id. at § 255.0031. Violations of the ban on use of public funds for political advertising or the ban on distribution by internal e-mail are Class A misdemeanors. Id. at § 255.003(c). The statute creates an exception for “a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.” Id. at § 255.003(b).

Representative Chisum’s press release is titled “False Campaign Meant to Destroy Prop. 2.” It begins by quoting Representative Chisum as saying that “[Y]esterday, two million Texans received phone calls containing false information meant to deter voters from voting for Proposition 2.” A later paragraph quotes Representative Chisum as saying “[t]his is a scare tactic orchestrated by individuals who are willing to do anything to make sure Proposition 2 is unsuccessful in the polls.”

The term “advocacy” as used in the statute has not been interpreted by any court. The Texas Ethics Commission, which administratively enforces the statute, considers a statement to be advocacy if the statement expresses sympathy or support for the passage or defeat of a measure by use of words such as “support,” “best solution,” or “the right thing to do.”

An independent school district paid for a six-page newspaper insert that contained a “Message from the Superintendent” which contained the sentence “[o]ur citizens now have the opportunity to position the NEISD for the 21st century. Please support the vision -- our future depends on your commitment.” In the Matter of Richard A. Middleton, No. SC-981182, at 2 (Tex. Ethics Comm’n 1998). The insert ran after the school board called a bond election but before the election was held. Id. at 1.

The commission found that the insert “presented facts about the school bond measure.” Id. at 2. However, the superintendent’s message “cause[ed] the insert to cross the line from a communication that is factual to a communication that advocates passage of the bonds.” Id.

The Decatur ISD board of trustees and superintendent called a bond election and hired a consultant to prepare informational material on the election. In the Matter of Scott Johnson, No. SC-231180, at 1 (Tex. Ethics Comm’n 2003). One circular “state[d] that the bond proposal provides the “best solution” to the needs generated by the school district’s population growth.” Id. An information booklet that was distributed included a press release “quot[ing] the school board president as saying, “This bond is the right thing to do for the children of this community.” Id. at 2.

The commission found that the phrase “best solution” and quote from the school board president to “advocate[d] passage of the bond measure, even though the information booklet contained a “great deal of factual information.” Id.

Representative Chisum states the phone calls would “deter persons from voting for Proposition 2” and were “orchestrated by individuals who are willing to do anything to make sure Proposition 2 is unsuccessful in the polls.” In Representative Chisum’s view, these calls are meant to “destroy” the ballot measure. Taken as a whole, a reasonable factfinder could find that the words indicate Representative Chisum’s support for the ballot measure.

This is likely so considering that the press release certainly does not contain any factual information other than assertions that “[t]he language for Proposition 2 has been reviewed by the legislature and some of the state’s top attorneys.” Representative Chisum does not provide the legal conclusions of these attorneys which might constitute “facts” that could be used by a voter to resolve doubt and make up his mind.

If the press release is political advertising, then Rep. Chisum might also runs afoul of the rules requiring certain notices to be placed on the advertising. See ELEC. CODE § 255.001(a). However, the disclaimers are only required to be placed on “political advertising containing express advocacy.” Id. There is no statutory definition of “express advocacy.” The “express advocacy” test under Federal law requires that a communication must include “explicit words of advocacy of election or defeat of a candidate” before the communication will be considered political speech that may be subject to some government regulation. Buckley v. Valeo, 424 U.S. 1, 43 (1976). The focus of the “express advocacy” test is on the words used by the speaker. Thus, a “finding of ‘express advocacy’ depend[s] upon the use of language such as ‘vote for,’ ‘elect,’ [or] ‘support[.]’” FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 249 (1986). The press release seems to fall short of express advocacy.

Finally, if the Chisum press release is political advertising, then the House Administration Committee erred in distributing the release.

In addition to the criminal penalties, the Texas Ethics Commission has civil jurisdiction over violations of Section 255.003 and 255.0031, which is triggered by the filing of a sworn complain. See ELEC CODE §§ 251.001, 253.134, 255.003.