Analysis: It's Not Bribery Unless They Say It's Bribery

It's a bribe when a lobbyist gives a public official something of value in exchange for a decision or a vote or some other official act. But there's an exception in Texas law that might surprise you.

Texas Capitol

It is illegal to bribe a public official in Texas, of course. But you might be surprised with what you can get away with if that public official is a state lawmaker.

What might look like a bribe to you could actually be a free and perfectly legal ticket to a rock concert, or dinner and drinks at a renowned Austin restaurant for a top state official.

“This is legalized bribery — it creates an actual exemption to the bribery statute,” says Paul Hobby, chairman of the Texas Ethics Commission. “Why do we legally allow any bribery? I just think we should have that conversation with ourselves.”

Bribery is a strong word — sensational, even. But it is the word used in the law, and if you are a public official and you break that law, you can be eligible for free public food and housing and a wardrobe of striped pajamas for as long as you serve in prison.

That’s a cautionary note for county commissioners, city council members and others in public office — but not for the people at the top of the state government food chain.

You can violate the state’s bribery law by offering or accepting (or even just agreeing to offer or accept) any benefits in return for decisions, votes or recommendations by a public servant. There is an exception, though, for “a gift, award, or memento to a member of the legislature or executive branch” that lobbyists are legally required to report. Short form: If the law requires lobbyists to report buying the meal or the gift or whatever, it is a boon and not a bribe.

The exemption in the bribery statute covers the kinds of gifts you might imagine — everything from paperweights to saddles to engraved pen and pencil sets. It also covers entertainment, food, beverages and, in certain situations, travel and lodging for legislators.

It functions like any other loophole, providing an escape from a taboo: Lobbyists and others are allowed to give gifts to legislators that, without this special provision in the law, would constitute illegal bribery.

Bribery, of course, is when you give someone something in the hopes that they will grant you something in return. Lawmakers have made it legal for the people who want things from the state to entertain and feed legislators.

Not everyone takes part — either in the Legislature or in the lobby — but enough of them do to keep a number of high-end restaurants and bars in Austin thriving during legislative sessions.

And this doesn’t happen at every level of government, said Tim Sorrells, an Austin attorney and the former general counsel at the Ethics Commission. It only applies where lobbyists are reporting their spending — at the state level. You might not see county commissioners at the same restaurants where state lawmakers assemble.

If you go to a concert when lawmakers are in town, chances are good that you’ll see lawmakers there, many of them sitting with the lobbyists who paid for their tickets. You’ll also see some, to be fair, who just wanted to go to a concert and opened their own wallets to get there. Maybe they like music without the added perk of sitting next to someone who wants to sell them a public policy idea.

Entertainment opportunities abound in Austin while the 84th Legislature is in its regular session this year: Fleetwood Mac will be at the Erwin Center on March 1, and Stevie Wonder, Neil Diamond, The Who, Los Lobos, and Tony Bennett with Lady Gaga are all scheduled to perform in April.

When lobbyists file their reports every month, Texans are able to see how much money is being spent on this sort of thing, often without finding out who benefited. Lobbyists have to report all of their spending. They do not have to connect the names of lawmakers (or their immediate families) to the spending unless they go over a certain amount.

Right now, that’s $90 per person, a number tied to the daily expenses the state pays to out-of-town lawmakers while they are in session in Austin. The Ethics Commission is about to raise that per diem amount to $190 from the current $150. Because the numbers are linked by law, that would allow lobbyists to spend up to $114 on a lawmaker without including the lawmaker’s name in their spending reports.

Perhaps there is no significant difference between the gifts exempted under the current per diem and the proposed one, but Hobby still thinks this is worth a larger conversation: “While you’re asking the $150 to $190 question, you have to get to why allow it at all?”

A practical policy might allow minimal expenses to slide by without raising real concerns of bribery or the attention of busy prosecutors: coffee or tea, maybe a donut.

“There ought to be a de minimis standard, but now we’re up to a $114 cup of coffee. Is that what we want?” Hobby asks.

That's the thing about lawmakers — they can change the laws they don't want. Their conversation might sparkle, their looks might dazzle, but it is that power to change the state’s laws that makes them such attractive dinner companions.

Their efforts fall short sometimes, but you can tell a lot about what they think and believe by what they choose to debate and what changes they try to make. Even when they fail, there is a battle to tell the rest of us that someone, somewhere, thought there was something wrong with the existing order of things. But not here.

Maybe the behavior allowed by the law seems to fit the dictionary definition of bribery, but it's not.

Read the law — it says so.