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Analysis: Smitherman Lost, but Stays in Game

Railroad Commissioner Barry Smitherman lost his bid for attorney general, but he remains an oil and gas regulator and has sought industry help retiring campaign debts and perhaps landing a job.

Texas Railroad Commission Chairman Barry Smitherman in his office on May 31, 2013.

The strangest things become commonplace in politics, like the ties that bind the oil and gas business and some of its regulators.

After finishing third in this year’s Republican primary for attorney general, Barry Smitherman, chairman of the Texas Railroad Commission, returned to his job regulating the oil and gas industry (along with two other elected commissioners) for the remaining nine months of his term.

But that was not the end of his political year. He held a fundraiser on Wednesday to ask donors, including some in the industry he regulates, to help him retire his campaign debt.

According to people with knowledge of the effort, Smitherman is pursuing a job as head of the Texas Oil and Gas Association, better known as TXOGA, which bills itself as “the oldest and largest group in the state representing petroleum interests.”

The names on the invitation for the fundraiser in Austin included several people and firms with business before the Railroad Commission: Phil Gamble, who lobbies for companies that include Atmos Energy, DCP Midstream and Energy Future Holdings; Rob Looney, president of TXOGA; Mike Willatt, an Austin lawyer; and the Parsley Coffin Renner law firm. 

“Barry is a very honorable and ethical person and also an honorable and ethical officeholder, so while the appearance may look curious, I would suggest to you that he is beyond reproach,” said Gary Farmer of Heritage Title in Austin, a host of the fundraiser.

Another contributor, preferring to remain anonymous, said there is no link between the regulator’s actions and the political money: "Us giving him a contribution or not doesn't affect us or our cases, but me being in your column saying something probably would."

Looney, the president of TXOGA since 1989, is retiring at the end of the year. The association’s board is searching for his successor. In addition to Smitherman, according to people with knowledge of the search, there is at least one internal candidate, Debbra Hastings, TXOGA’s executive vice president, and another prominent outside contender, Agriculture Commissioner Todd Staples, who finished out of the running in the Republican primary for lieutenant governor. Smitherman did not return a call seeking comment.

Gov. Rick Perry put Smitherman on the Public Utility Commission in 2004 and then appointed him to an open seat on the Railroad Commission in July 2011. Smitherman was elected in November 2012 to serve the remaining two years of the term. Instead of seeking a full six-year term, he entered the race for attorney general, losing in the Republican primary to state Sen. Ken Paxton and state Rep. Dan Branch, who advanced to a May runoff.

The close relationship between the oil and gas industry and its elected regulators is well established and regularly comes up for legislative review, if not for reform. Periodic efforts to dilute those relationships come in three flavors: to appoint the commissioners instead of electing them, to reduce the number to one from three, or to combine the Railroad Commission with other agencies or parts of other agencies. The Public Utility Commission, the General Land Office, the Texas Commission on Environmental Quality and the Comptroller of Public Accounts are frequently suggested.

Last year, lawmakers seriously considered putting one person in charge of the Railroad Commission. Smitherman worked against the proposal. Had it passed, it would have removed him from office just before he embarked on his race for attorney general.

Smitherman is hardly the first railroad commissioner to try to leap to a higher office. It worked for the state comptrollers John Sharp and Carole Keeton. It did not work for many, many more, but it is a common enough launching pad to engender complaints that commissioners are recycled faster than they can gain real expertise about the industry they regulate.

From a political viewpoint, the regulatory perch offers tempting leverage for a commissioner looking for the kinds of people who can contribute to a campaign. The donors and the candidate are not breaking any laws or bending any rules as long as there is nothing to link a donation or a favor to an official decision.

It might turn a voter’s head, but it is not unusual.

Disclosure: Energy Future Holdings was a corporate sponsor of The Texas Tribune in 2011 and 2012. A complete list of Texas Tribune donors and sponsors can be viewed here.

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