Texas Ethics Commission Law & Regulation on Lobbying

You’ve probably seen the emails, Twitter posts and Facebook comments about the Texas Ethics Commission charges against Michael Quinn Sullivan (@MQSullivan) of Empower Texans (ET)/ Texans for Fiscal Responsibility for failure to register as a lobbyist.

According to my own personal scorecard, Mr. Sullivan and I agree about 95% of the time. I’ve heard him speak at Republican Women meetings and have followed his website and social media posts. (He and I disagreed on the 2013 scorecard.) He claims he’s a journalist and is protecting the rest of us from being silenced. However, Mr. Sullivan earns about $130,000 a year, and he solicits donations to help him influence Texas legislators.  In fact, Mr. Sullivan has registered as a lobbyist in the past. When did he stop being a lobbyist, and how did he determine that he was no longer a lobbyist?

The Texas Ethics Commission has made mistakes in the handling of this complaint, including closed door meetings, gag orders (or the equivalent), and there have been delays and down-right stalling when it comes to allowing MQS to confront the two legislators who filed the complaint against him. I’ve long objected to the need for filling out that paperwork, including my occupation and employer, when I buy a pin or meal at a New Braunfels Republican Women meeting.

Today, Mr. Sullivan had his hearing at the Texas Ethics Commission. It was live-streamed on the Internet (here). Mr. Sullivan refused to testify, repeating “On the advice of counsel, I’m not testifying today.” For hours.  In my opinion, that’s not brave and definitely not helpful.

In the long run, this is a question about the law. The State of Texas has published its rules and regulations. Even though I’m not a lawyer, the law and regulations seem clear to me. You can read them here.

DETERMINING WHETHER LOBBY REGISTRATION IS REQUIRED

Lobby registration is required if a person meets either one of two thresholds: the “compensation and reimbursement threshold” or the “expenditure threshold.” A “person” required to register may be a corporation, partnership, association, or other type of business entity as well as an individual. See Entity Registration.

COMPENSATION AND REIMBURSEMENT THRESHOLD

Under current Ethics Commission rules, a person who receives, or is entitled to receive under an agreement under which the person is retained or employed, more than $1,000 in a calendar quarter as compensation or reimbursement to lobby must register as a lobbyist. 1 T.A.C. § 34.43. (Compensation and reimbursement must be added together to determine whether registration is required. Ethics Advisory Opinion No. 103 (1992).) Compensation for certain communications, however, does not count toward the compensation threshold even though the communications may be intended to influence legislation or administrative action. SeeEXCEPTIONS FROM REQUIRED REGISTRATION, in this guide. Also, a person who crosses the compensation threshold is not required to register if lobby activity constitutes no more than five percent of the person’s compensated time during a calendar quarter. See EXCEPTIONS FROM REQUIRED REGISTRATION, Incidental Lobbying.

Compensation to Prepare for Lobbying. Compensation received for preparing lobby communications (for example, compensation attributable to strategy sessions, review and analysis of legislation or administrative matters, research, or communication with a client concerning lobbying strategy) is counted toward the compensation threshold. 1 T.A. C. § 34.3. If a person engages in preparatory activities, but does not actually communicate to influence legislation or administrative action, registration is not required. Id. A person employed by a lobbyist (or a person employed by the lobbyist’s employer who works under the lobbyist’s direction) to assist the lobbyist in nonclerical lobby activities must be listed as an assistant on the lobbyist’s registration. See Reporting Assistants.

You can look up the lists of lobbyists at the website, too.

The accusation that I object to is the claim that the TEC will come after the rest of us next. Not unless we are compensated (paid) for our lobbying and it’s a condition of our employment. Today, one of my friends on Facebook made the claim that the pro-life group, Texas Right to Life, is next. However, at least one of the lobbyists for TRTL registers during odd-numbered years.  (In the interest of full disclosure, I’m on the Board of Directors of Texas Alliance for Life. At least two of our employees are registered.)

Edit: http://www.ethics.state.tx.us/tedd/loblst09_04.htm  Mr. Sullivan was registered in 2009. BBN, 6/26/14 7:55 AM.