This is one in a series of occasional stories about ethics and transparency in the part-time Texas Legislature.
The new chairman and vice chairman of the eight-member Texas Ethics Commission board — Republican Jim Clancy and Democrat Paul Hobby — sat down with the Tribune to talk about the state’s existing disclosure rules, their efforts to prioritize certain types of ethics complaints and the reforms they anticipate in the 83rd legislative session. Below is an edited transcript of the interview.
TT: The Ethics Commission recently underwent “sunset”— the standard agency review process that generally leads to reform legislation. What were your thoughts on the recommendations, and what are you expecting from lawmakers?
Clancy: I’m very excited about this year and about the Sunset review. It will give us the opportunity to do common-sense things. Probably one of the most challenging is getting the finances for new software, so we have a web-based reporting system. One of the hardest things to fine someone for is [if] they’re using a Mac computer and they can’t download the software to file their campaign finance report. We need to be no longer using 1998-acquired software.
Hobby: The short-term message is, close your eyes and imagine our computer system four years from now. We’ve got to have enough money to fix the software (estimated at $3.5 million). And then longer term, we are going to try to and dedicate agency resources toward material malfeasance, as opposed to being 100 percent reactive to the public.
Clancy: We’re excited this year about being able to take a portion of our resources and minimize the amount of time we spend on minor reporting issues, to increase some of our ability to focus on more important areas. It will give us the opportunity to improve the sworn complaint process so not every complaint is treated identically.
TT: Right now there appears to be a pretty big loophole in lawmakers' personal financial disclosure forms, in that they do not need to report certain assets of their spouses. Should that be changed?
Clancy: In today’s society, the fact that one of them is running for office means both are subject to public accountability. [If you require more spousal reporting], you’re going to decrease the pool of people who run [for office] and get greater transparency. It’s a philosophical discussion. I don’t think you’re going to get the majority of folks [in the Legislature] to agree with you in this session. There are enough things for us to fix in the 2013 session; I think that’s in the "too hard" box.
TT: There’s an effort afoot in the Legislature to require lawmakers who are lawyers to report their clients on financial disclosure forms. Would you support such a measure?
Clancy: I’m a lawyer and I would never serve in the Legislature if that was a requirement. There needs to be a policy choice. We need to pay them full-time salaries and require no outside activity, or we need to accept that they’re citizen legislators, and try to regulate the things they do. From a citizen legislator standpoint, I can’t support a situation where you’d have to ruin somebody’s business to allow them to serve in the Lege.
Hobby: The attorney-client [privilege], that’s the big problem with that. I want greater transparency, greater disclosure, I want that all day every day. But I don’t want to create a system that keeps good people out. I want a system that works, and works better than the one we’ve got. But I’m not going to take a rifle-shot position.
TT: What reforms, what disclosure tweaks, might not be in the “too hard” box?
Hobby: I would increase the top reporting category [for listing assets on financial disclosure forms]. $25,000 today (the top reporting amount) is a little less than $15,000 when that standard was introduced when you account for inflation. The top reporting category needs to go up. We could also eliminate ticky-tacky [penalties] if we went down from the current 74 reporting dates. There are places in the form that are statutory that trip people up. If we had the liberty to modernize the form, to sand off where people get stuck, we could take the volume of sworn complaints down, the calls for filer assistance down. Modernizing the forms and simplifying reporting dates would help the agency’s workload and the public frustration of those who try to comply.
Clancy: Those 74 deadlines are all in the [state] statute; we can’t change them by rule. We need the Legislature to give us the opportunity. We’d like to have a couple of reports per election, per year. We have a system where people see repeated fines for leaving off small information. They don’t mind taking responsibility for leaving out an occupation [of a campaign contributor], or filing one day late. But they don’t want to claim they’re an ethics violator. I think if we were able to short-circuit [the minor complaints], we’d have more time to spend on the others.
Hobby: You ought to see these people who leave our meetings in tears, these sweet, simple people who missed a box, missed a deadline. They get a letter [from the Ethics Commission] and they can’t sleep at night, they hire a lawyer they can’t afford. There’s no moral sanction here, they’re not convicted felons. But these people swear, they promise, “I’ll never participate in the process again.” To put everybody through a body scan every 12 hours sounds pretty good, but in the real world, most people are terrified. Ethics is like highways or good schools, it’s a vanishing point on the horizon. Schools are never good enough, highways are never smooth enough, but you drive in that direction. We keep driving.
TT: It sounds like you don’t think the personal financial disclosure forms need a big overhaul.
Clancy: If your agenda is greater disclosure and the elimination of conflicts, that’s not what we’re seeing with the PFS [personal financial disclosure]. We don’t get sworn complaints about PFS’s. It serves a useful function, it limits what people will do, with honoraria, with travel. But I don’t think you should discount how big a deal it is to go thru a PFS. I have a little trouble with saying every part of your life needs to be public. At some point you’ve got to decide where privacy begins. Sometimes I feel like we’re attacking the PFS unfairly … like this PFS issue becomes very personal. It’s a “How much money do you have in your wallet right now?” There’s an argument for disclosing more. But you have to balance that with some right for private individuals to keep their affairs private. [Otherwise] you’d have everyone in the Legislature be professional politicians. In 2013, you can find a lot out about people. [The PFS is] primarily used to embarrass politicians who are rich. People get to that point and they say, “Forget it.” Let’s use what we’ve got, look at what has been filed, see what is there. Let’s see if citizens file complaints, as opposed to creating a hypothetical boogeyman.
TT: At the urging of top Republicans, the Ethics Commission declined to raise session pay for state lawmakers. Why?
Hobby: The legislative leadership is the best evidence of what legislators need to live in Austin every day. When the leadership tells you something, they’re in a position to know.
TT: What has Citizens United meant for the watchdog role of the Ethics Commission?
Hobby: The 10,000-pound elephant in all of our rooms is Citizens United, and what does it mean for the role of the Ethics Commission. We can’t stop corporate money anymore — the prohibition went away. It was a terrible decision, but it’s the law of the land. What does the Ethics Commission mean in the age of Citizens United? We haven’t broached it in the broadest sense. I wrestle with this myself.
Clancy: Citizens United created uncertainty for the people who have to follow our rules. There are a lot of very good, well-intentioned people trying to find out what to do in certain circumstances. One of challenges we have is that those people who come to us, who try to disclose, are typically the ones who are fined. People who don’t report, who ignore the disclosure system, those folks are rarely involved. The reason why you see a real pushback when you start talking about some expanded powers, more disclosure, more fines, is because there’s a feeling that those people who try to comply are punished for doing so.