‘Empower Texans is a bona fide news medium’

By Jon Cassidy | Watchdog.org

My old friend and mentor, the reporter and presidential historian Richard Reeves, likes to say that the great thing about journalism in this country is that anybody can join in.

You don’t need to get a license or go to school for it. You just start reporting and writing. If you don’t have the experience to get a job at a newspaper, you can just start your own, like he did 50 years ago.

Now, of course, the barrier to entry represented by a printing press and a fleet of delivery trucks is gone. Anybody can make calls, file public records requests, read reports, write up their findings and throw the results up on a web page.

You can even tell people what you think those facts mean, and no editor is going to strip out your comments and lecture you about objectivity.

At Watchdog.org, we are all committed to the democratic proposition that journalism is not a matter of who your employer is. It should be understood as a practice, as something you or anybody else can do.

Michael Quinn Sullivan, the founder of Empower Texans, is best known as a conservative activist, but he is also a journalist — a partisan, highly opinionated journalist, to be sure, but no less a journalist for that. His website has been running near-daily news and commentary for years.

Sullivan has spent the past two and a half years fighting specious, political accusations of ethics violations made against him by people who don’t like his journalism. He could have settled those charges long ago for $1,000, but he chose to fight them, and on Wednesday was finally granted a public hearing before the Texas Ethics Commission.

He doesn’t expect to win, and neither does anybody else who has been following the commission’s conduct. But he will get his day in federal court, and that will be a great day for the free press in this state, because there is no way that the regulations he’s challenging are going to withstand judicial scrutiny.

The problem, as became clear to me during Wednesday’s hearing, is that Texas lobbying law is so broadly written that anybody who works for a nonprofit that so much as tweets at a state legislator could run afoul of Texas’ lobbyist registration requirements.

As Sullivan’s attorney Joe Nixon said, a member of a garden club could be forced to pay a $750 lobbyist registration fee before being allowed to speak with a legislator.

The main accusation against Sullivan is that a scorecard he publishes every legislative session — ranking members on a Fiscal Responsibility Index — constitutes an attempt to “influence” legislation. Lawyers from both sides agreed that the Supreme Court has found “influence” to be an unconstitutionally vague term.

When Sullivan advises lawmakers beforehand that a vote will be included on the index, his accusers say that’s a sort of “direct communication” that requires him to register as a lobbyist.

Sullivan also is defending himself from the charge that he did anything wrong in telling lawmakers he thought they ought to oppose Rep. Joe Straus in a potential election for speaker three years ago.

Federal law on lobbying, as constrained by Supreme Court precedent, defines lobbying much more narrowly than Texas does — you’ve got to spend at least half your time actually working as a lobbyist, and only actual legislation is covered, as opposed to Texas law, which covers “any matter that is or may be the subject of action by either house or by a legislative committee.”

Since the future is infinite, “How is anyone to know if they’re allowed to speak on an issue?” Nixon asked.

Not to get ourselves in trouble here, but if any lawmakers receive Watchdog’s email blasts about the work of the committee trying to impeach Wallace Hall, we might be covered by the rule, too.

There is an exception to the registration requirement for “bona fide news” media, which means us, but the folks we antagonize have a tendency to call us things like “fringe propaganda machine.”

The problem with regulations of this sort is that they give the government power to curtail the freedom of the press by arbitrarily defining press. That’s why Watchdog.org’s own Mark Lisheron, a 35-year veteran of the news business, offered testimony Wednesday in support of Sullivan.

“Empower Texans is a bona fide news medium,” Lisheron said. “You can’t be informed about conservative politics in Texas without consulting it.”

Lisheron compared Sullivan to Thomas Paine, as well as the socialist muckrakers of the early 20th century, who combined their reporting with ferocious advocacy.

The most famous of those muckrakers, Lincoln Steffens, would have despised the so-called objective form of journalism that most newspapers today practiced.

“I am a journalist,” Steffens famously wrote in is introduction to The Shame of the Cities. “I did not gather with indifference all the facts and arrange them patiently for permanent preservation and laboratory analysis. I did not want to preserve, I wanted to destroy the facts. My purpose was no more scientific than the spirit of my investigation and reports; it was, as I said above, to see if the shameful facts, spread out in all their shame, would not burn through our civic shamelessness and set fire to American pride. That was the journalism of it. I wanted to move and to convince.”

Sullivan, too, wants to move and convince. He wants Republicans to stick to their principles, and his method is to hold them accountable for their votes.

Jim Clancy, chairman of the Texas Ethics Commission, calls that lobbying and told Sullivan on Wednesday that any district judge in the state “would laugh you out of court” for insisting that there was any such thing as a First Amendment privilege to refuse to testify about his group’s finances and operations.

That’s the sort of nonsense that had Sullivan saying he was looking forward to “a real court, with a real judge,” one who’d be familiar with federal rulings such as these:

“(W)e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.”

“The Supreme Court has long recognized that compelled disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation.”

“Disclosures of political affiliations and activities that have a ‘deterrent effect on the exercise of First Amendment rights’ are therefore subject to this same ‘exacting scrutiny.’”

I can’t say exactly how the federal courts will decide Sullivan’s case, but when constitutional rights are at stake, they usually require the government to have a clear, legitimate purpose, and to try to achieve that purpose with the narrowest possible intrusion on that right.

A lobby registration law that could require just about anyone to sign up and pay a fee before committing acts of journalism or even tweeting about something the Legislature might one day consider is hardly narrow.

Contact Jon Cassidy at jon@watchdog.org or @jpcassidy000. If you would like to send him documents or messages anonymously, download the Tor browser and go to our SecureDrop submission page: http://5bygo7e2rpnrh5vo.onion