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For a governor who wants to be known for beefing up ethics in state government, Greg Abbott is chewing a hole in administrative law big enough to park an armored car.
It’s not like he needs to do this: Abbott is the most prolific fundraiser in Texas political history. No kidding. Look it up. Last month, he spent $16 million on TV advertising — a pre-purchase in advance of the general election — and still had $29 million in the bank. His pecuniary shadow has scared serious contenders out of challenging him for years.
So he's got a knack for getting rich people and political action committees to fill his bags with money. That's perfectly legal, and most of the political people who talk about it at all do so in such admiring tones they ought to be playing harps as they speak.
He's also an outspoken advocate of tougher laws governing the ethics of people in public office. His efforts fell short in both of his two legislative sessions as governor. And there was that embarrassing 91-46 Texas House vote last year in favor of prohibiting governors from appointing anyone who had contributed more than $2,500 to their campaigns; at the time, it turned out that 71 of the governor’s nearly 800 appointees would have been blocked by that kind of “pay for play” prohibition.
The House is as far as that idea went; the Senate never even looked at it.
Now, the governor has asked state agencies — which are in his branch of government but are not required by law or the constitution to report to the governor — to give him even more sway over them by signing off on their proposed changes in administrative rules before they publish them for public comment.
Rules are the agencies' interpretations of statutory law: The Legislature makes laws and the agencies enforce them, using administrative rules to spell out the details.
The governor wants to see proposed rules — essentially a second and final step in lawmaking — before you and I get to see them. Maybe that's a good idea, if you think Texas governors should have more power and if you believe this is a good check on unelected state employees who write those rules.
But suppose — just as a mind exercise — that Texas found itself with a dishonest governor. James Ferguson, for instance, a man better known as “Pa.” Ferguson and his wife, Miriam, also a disreputable governor, were accused of selling pardons and paroles and directing highway contracts to friends and favorites. They’re the kind of people who’d probably sell appointments if they had a chance.
A dishonest governor wanting to raise money who also had a solid grip on a set of proposed rules would have a powerful combination at play, holding sway over rules that might be harmful to moneyed interests and persons at the same time those interests might be thinking about making campaign contributions.
That kind of thing happens all the time, but the state's ethics laws — the ones Abbott keeps saying he wants strengthened — employ transparency to keep things copacetic. The governor doesn't want to be transparent about this new rules review, however. The Austin American-Statesman asked to see what the agencies had put on Abbott's desk. The governor, touter of open government records and better, stronger ethics laws, has argued that the proposed rules should not be public information because they are part of the “deliberative process” until the public comment period. It's a secret. Maybe that's a good idea; right now, the attorney general is deciding, because of the paper’s request, whether the governor is right.
Suppose he is right, and suppose somebody dishonest, like a Gov. Ferguson, was behind the desk. You wouldn't be allowed to compare what the agencies sent into the governor's office and what came out. You wouldn't be able to connect the rules under Ma’s or Pa's consideration with the calendars of which lobbyists, donors and campaign geniuses were visiting the governor at the same time. If a dishonest or avaricious or over-ambitious governor wanted to sell us out, this is set up to make it damned hard for the public to find out about it.
Here's a completely unfair and ornery question that is, nevertheless, a particularly fine test of whether something is ethical and upright: How would it look in the hands of a crook?
Abbott and the rest of the government have two things to work out here.
First, should Texas governors have the heretofore untapped power to edit the proposed rules of executive agencies before those are put out for public comment and then voted into administrative law by those agencies? That's a big expansion of power, but you can find smart people who think it's a good idea.
Second, should that gubernatorial review be done in secret, with no legal assurance that the affected industries and interests would be kept out, no rule against them giving money to the government's legal editor-in-chief while the cutting and pasting was underway?
In the hands of an honest governor, that might also be a good idea. The public gets a chance to comment later, after all. And governors are always raising money for their campaigns from people whose only interest in giving is that they have business before the state. It's not like this is a surgically clean business. But in the hands of a Pa Ferguson — put the name of anyone you don't trust here — is this a good idea?
Maybe it needs a period of public comment.