Once again, Texas Legislature unlikely to pass ethics legislation this year

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

The Texas Legislature is on track to pass essentially no meaningful ethics legislation this year as the calendar ticks closer to the end of the session.

Lawmakers filed dozens of bills that would increase transparency around spending in elections and strengthen penalties for campaign and lobbying violations. Their proposals would specify what candidates, lawmakers and political groups need to disclose about their campaigning, streamline and clarify the ethics complaint processes, and keep up with changing technology that is increasingly used to deceive voters in elections.

But with less than a week in the legislative session, none of these bills appear on track to make it to Gov. Greg Abbott’s desk for final approval with many bills stuck in committees never having received a hearing.

Meanwhile, the two ethics bills that have been approved by both chambers reduce penalties and transparency in existing ethics laws, including one that reduces the fine for former lawmakers who engage in illegal lobbying activity.

The lack of movement on ethics legislation comes on the heels of a stinging election cycle and then an unprecedented speaker race that unleashed political attacks that some candidates flagged as beyond the pale. It also comes during the session that the Legislature is statutorily required to review the commission that enforces state campaign finance and lobbying laws. Last year, the state completed its review conducted every 12 years of the Texas Ethics Commission — culminating in a bill that adopted recommendations from the Sunset Advisory Commission to improve its processes.

As of Wednesday morning, that legislation, which would place more guardrails on the TEC’s ability to prosecute ethics violators, also appeared to be dead. Another bill that would prohibit deep fake videos and audio meant to influence an election is currently in the same legislative purgatory. Meanwhile, bills that would limit campaign contributions from donors outside Texas and add regulations to mass text message campaigns were also stalled.

“It's difficult on a good day — on a really good day — to get ethics bills passed in the Capitol, because it literally cuts to their bottom line of getting elected and how they operate in office,” said Andrew Cates, a campaign lawn ethics lawyer in Austin. “A lot of them don't want to deal with that.”

Ethics reform has long eluded the Legislature.

When Gov. Greg Abbott came into office, he campaigned on overhauling ethics laws and declared the reforms an emergency priority for the Legislature to take up. That year, none of his ethics priorities survived, and the following session he was only able to pass half of his agenda. The governor’s push for ethics reform has since quieted and his office did not respond to a request for comment on the current swath of ethics bills before the Legislature.

In 2013, former Gov. Rick Perry vetoed the last ethics commission sunset review bill, because he disagreed with a provision that would have prohibited railroad commissioners from running for other state office without first resigning, meaning the last time state lawmakers passed a sunset review bill of the ethics commission was in 2003.

Before that, the last major ethics overhaul was in 1991 when lawmakers created the Texas Ethics Commission. Members were motivated to take action after Bo Pilgrim, a chicken plant mogul, created a public outcry for handing out $10,000 checks to senators in the upper chamber two days before the Senate was set to vote on a bill to reform worker’s compensation.

Prior to that, the largest ethics reform era in state history was in the 1970s after voters kicked out half the Legislature over the Sharpstown stock fraud scandal, where a businessman helped lawmakers get loans to buy stock in his insurance company. In exchange, lawmakers passed favorable banking bills.

But this year, Sen. Nathan Johnson, D-Dallas, said it’s been difficult to galvanize legislative interest in ethics rules.

“You will be remembered for a vote you take or a bill you pass and it's easier sometimes to just not do anything,” he said. “It's harder to blame someone for inaction than it is for action. But I think we have an obligation to the public to act.”

Johnson is sponsoring a bill that would expand the prohibition on the distribution of deep fake videos in an attempt to influence an election. As of Wednesday, the bill had missed a key deadline to come to the House floor for a vote.

In recent years, opposition to ethics reform has become more outspoken, with hard right lawmakers and grassroots political activists pushing back against the Ethics Commission’s enforcement and legislation to crackdown on campaign and lobbying infractions, under the premise it violates First Amendment rights.

One such activist, Michael Quinn Sullivan has been embroiled in a lawsuit since 2014 against the Ethics Commission over a complaint that he failed to register as a lobbyist through his work for conservative advocacy group Empower Texans. Quinn, who argued that he was acting as a journalist, has appealed to the U.S. Supreme Court to take on the case, drawing support from Attorney General Ken Paxton, who typically represents agencies when they are sued. Empower Texans, which is now defunct, was one of many conservative groups and PACs funded by West Texas billionaire Tim Dunn. Paxton also receives significant financial backing from Dunn’s organizations.

“Reforming the Ethics Commission is not just about updating the rules. 
Is it all restoring credibility to a system that is supposed to be impartial,” said Sen. Mayes Middleton, R-Galveston, during a committee hearing in April about his Ethics Commission sunset review bill. “It's about prioritizing real misconduct over technical infractions, ending the weaponization of the complaint process, and shining a light where dark corners have persisted for too long.”

Middleton was previously a major donor to and board member on Empower Texans’ foundation.

Middleton declined to comment through his spokesperson, who pointed the Tribune to the senator's public comments on the ethics commission during sunset advisory meetings last year.

Phelan’s ethics push

This legislative session, former House Speaker Dade Phelan, R-Beaumont, took up the mantle of ethics reform — and it’s easy to see why.

Phelan became a villain among the furthest right flank of the party during the primary, as conservative groups spent mightily to try to push him and his allies out of office — largely for his leadership over the impeachment of Attorney General Ken Paxton and the failure of private school vouchers in 2023. Those forces only intensified after Phelan won his race and pursued reelection as House speaker.

The anti-Phelan groups and candidates, largely funded by Dunn, tried to convince lawmakers to align behind one candidate, Rep. David Cook, R-Mansfield, with text message blasts and mailers flooding districts. Lawmakers’ cell phone numbers were published in ads, leading one member to file a lawsuit alleging the PAC that attacked him didn’t follow state disclosure laws for political advertisements, and violated other ethics laws.

But the effort to back Cook was unsuccessful, and Dustin Burrows, R-Lubbock, a Phelan ally who is considered a conservative, yet more establishment Republican in the House, was named speaker. Many lawmakers publicly denounced the tactics used by outside groups looking to influence the election — and filed bills reflecting those complaints.

One bill restricted campaign donations during special sessions of the Legislature. Multiple bills would require “mass text message campaigns” to include a disclaimer identifying who paid for the political advertisements. Yet another bill required the text on political advertisements stating who paid for that ad to be at least 9 size font. None of these bills received a hearing in committee.

Phelan said he wanted to address what he sees as gaps in Texas’ ethics laws in the wake of his bitter primary reelection in which he accuses his opponent of “lies and deceit.”

At one point, a mailer, funded by a PAC that received a large amount of funding from Pennsylvania billionaire Jeff Yass, was sent to his constituents that showed the former U.S. House Speaker Nancy Pelosi, a Democrat, hugging the Beaumont Republican. On the back, the mailer showed Phelan speaking at a Texas Democratic House Caucus press conference. Neither event had actually occurred. The image had been altered to show Phelan’s face superimposed over the new U.S. House Democratic Leader Hakeem Jeffries.

To Phelan, it wasn’t just politics as usual. He felt his constituents had been actively misled with false information. When he returned to Austin, Phelan filed House Bill 366, which would require political ads to disclose if they contain an image, audio or video that had been substantially altered.

His critics in the House took note of Phelan’s personal connection to the legislation, and questioned him over why his bill number matched the exact number of votes he narrowly won reelection by.

Rep. Tony Tinderholt, R-Arlington, asked if Phelan was concerned that using that specific bill number made his quest to change Texas ethics law seem more like a personal vendetta rather than an attempt to restore integrity to Texas elections.

“It’s simply a bill number,” Phelan responded on the House floor.

Although Phelan’s bill passed the House, its fiercest opposition came from members backed by Dunn and who aligned with the efforts to remove him from the speakership. Many critics argued that the legislation would criminalize those making fun of lawmakers by using memes on social media.

Rep. Brent Money, R-Greenville, said on the House floor that Phelan’s bill to require disclosure stating if an image or video has been altered would give the Ethics Commission too much power to decide what is true or not true.

“[It] will lead to enormous abuses,” Money said on the House floor in April. “That's why this kind of law hasn't been in place before because we have free speech.”

Another Phelan bill would put a cap on political donations from residents outside Texas, a nod to the $10 million Yass gave to Abbott to challenge Republicans who opposed private school vouchers. Phelan voted against the voucher proposal that passed this session.

He also filed a bill to require candidates and PACS to specify on public reports who or what is supported or opposed by donations and expenditures. was given to support or oppose. Both bills passed out of the House, but neither of the bills have been assigned a committee in the Senate, where Lt. Gov. Dan Patrick oversees the distribution of bills to specific committees. Phelan and Patrick have publicly feuded for years, culminating in an all out war between the two after Patrick assailed Phelan for allowing the House to impeach Paxton. Dunn’s political action committees have been major donors to Patrick and Paxton. Patrick did not respond to a request for comment on the status of Phelan’s legislation.

As of Wednesday morning, neither of Phelan’s bills had moved in the Senate. Wednesday is the last day for the Senate to consider all bills.

The Senate did unanimously pass a bill similar to Phelan’s that prohibits deep fake videos, audio and images, but includes a carve out for cartoons or caricatures that “a reasonable view would understand to be a satirical representation of the individual,” which lawyers view as an attempt to address free speech concerns about these bills. “If you want to make a candidate look like the flying monkeys from the Wizard of Oz, you're welcome to,” said Johnson, who authored the Senate version. “But if you want to present an audio recording of something that somebody is saying when they didn't, in fact, say it, that's not okay. That's all this bill does.”

In 2019, Texas became one of the first states to regulate the use of deep fake videos in elections, making it a Class A misdemeanor if a person creates, distributes or publishes a deep fake video with the intent to influence an election within 30 days of election day. Part of the legislation was struck down by the courts, but Johnson’s bill tried to strengthen aspects of the law that remain. It removes the 30 day limit, meaning this ban applies to a deep fake video related to an election or candidate that’s distributed at any time. The bill had bipartisan support in committee hearings, including from the conservative think tank, Texas Public Policy Foundation.

“This legislation strikes a necessary balance between protecting electoral integrity and preserving free expression,” said Greyson Gee, a technology policy analyst at TPPF, when he testified in front of a Senate panel in March. “By criminalizing deep fake videos created with deceptive intent, SB 893 provides guardrails against some of those most harmful forms of digital misinformation.”

But the legislation never received a hearing in the House before the deadline to send it to the House floor. Rep. Matt Shaheen, R-Plano, who chairs the elections committee where the bill was sent, did not respond to requests for comment.

Lawmakers are similarly unmotivated to take action on legislation reviewing and updating the TEC’s enforcement of campaign and lobbying laws, stemming from the Sunset Commission’s agency review.

According to that review, the Ethics Commission was well managed and efficiently handled more than 95% of cases. But it also said that “complicated disclosure laws and atypical regulatory processes continue to burden filers and result in the TEC being overly focused on enforcing against minor reporting errors rather than more serious ethical violations.”

Middleton’s version of the sunset bill sought to boost the rights of people who are being accused of ethics violations.

“The process has become more about checking boxes than delivering accountability,” Middleton said as he laid out the bill in committee in April.

That bill passed the Senate and a House committee, but missed a deadline to get a full House vote.

The Ethics Commission is different from other agencies that are reviewed by lawmakers through the state’s sunset review process. Typically, if lawmakers don’t pass a bill to continue an agency, it will cease to exist. But since the commission was approved by voters as a constitutional amendment, it cannot be abolished by the commission even if lawmakers don’t pass a bill to maintain its existence.

Cates, the ethics lawyer, said that has allowed lawmakers to treat the sunset review of the ethics commission as optional.

“There hasn't been a full scale look at all of the codes and procedures that the Ethics Commission is in charge of in over 20 years and there certainly hasn't been an overhaul,” Cates said. “[Lawmakers] treat it like it's an option, because it technically is an option, but if you keep treating it that way, this stuff's going to stack up.”

Disclosure: Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

---

First round of TribFest speakers announced! Pulitzer Prize-winning columnist Maureen Dowd; U.S. Rep. Tony Gonzales, R-San Antonio; Fort Worth Mayor Mattie Parker; U.S. Sen. Adam Schiff, D-California; and U.S. Rep. Jasmine Crockett, D-Dallas are taking the stage Nov. 13–15 in Austin. Get your tickets today!