Analysis: Paxton takes walk on campaign inquiry of supporters

In this July 29, 2015, file photo, Texas Attorney General Ken Paxton speaks during a hearing in Austin, Texas. (AP Photo/Eric Gay, File) In this July 29, 2015, file photo, Texas Attorney General Ken Paxton speaks during a hearing in Austin, Texas. (AP Photo/Eric Gay, File) Photo: Eric Gay, STF Photo: Eric Gay, STF Image 1 of / 1 Caption Close Analysis: Paxton takes walk on campaign inquiry of supporters 1 / 1 Back to Gallery

AUSTIN -- The Texas Ethics Commission is under fire in a way that goes well beyond the now-customary sniping from forces under the control of and allied with Midland oilman Tim Dunn.

Statewide officeholders who have Dunn's largesse partially to thank for their GOP primary victories are now working to further change the landscape of how those elections are fought by undermining the ability of the state's campaign finance regulator to carry out one of its principal purposes: "To disclose fully information related to expenditures and contributions for elections and for petitioning government."

From Lt. Gov. Dan Patrick's failed attempt to force out a Republican ethics commissioner to Attorney General Ken Paxton's sabotage of the agency's campaign finance investigation into Dunn's group Empower Texans, it appears the floodgates for secret cash to be poured into the 2018 GOP primaries could be as open as ever. Put simply, Paxton's dereliction of puts Republican lawmakers more at risk than ever from challengers powered by secret campaign cash.

The commission has now dismissed a long-running investigation into whether Dunn's politically active nonprofit illegally acted in concert with its donors as a political action committee, which would be required to disclose its donor list. Commissioners did not comment on their vote that there was insufficient credible evidence the 501(c)(4) tax exempt group coordinated with its donors, which would have triggered the PAC registration requirement.

To be clear, it's not that evidence of a violation is nonexistent. It's that the commission does not have such evidence in its possession and had no path toward discovering it after Paxton's abrupt decision to drop a lawsuit seeking subpoenas to produce documents from Empower Texans.

Paxton, an indicted Empower Texans endorsee who received a $1 million loan for his campaign secured by Dunn, has treated his constitutional duty to represent this state agency like a cafeteria, picking and choosing the instances in which he will do so.

The Office of the Attorney General is not representing the Ethics Commission in the case of Dunn spokesman Michael Quinn Sullivan's alleged illegal lobbying – the agency has outside counsel for that ongoing case – but, did decide to take the lead in trying to secure subpoenas for production of documents as the commission looked into alleged campaign finance violations.

Why did Paxton suddenly reverse course, dropping the Ethics Commission in the grease about the subpoenas?

Well, under attorney-client privilege, communications between the agency and the Attorney General's office about Paxton's decision have not been released to Quorum Report. Attorney-client privilege is invoked quite conveniently while the lawyer chooses not to represent the client.

During a Texas Senate State Affairs Committee hearing earlier this month, Sen. Van Taylor, R-Plano, grilled the executive director of the Ethics Commission about whether Texans have the right to free speech and a right to avoid self-incrimination during investigations conducted by the agency. Taylor also wanted to know if there is a right to "anonymous speech."

The answer was, naturally, that citizens enjoy the freedom of speech but anonymous speech is a different issue. The more difficult and more relevant question about the commission's work centers on determinations of which speech requires disclosure of political cash under laws written by the Texas Legislature. "In some instances, disclosure is required," said Natalia Ashley, Executive Director of the TEC.

A key element of due process that Sen. Taylor did not stress is the right to face one's accuser.

When Republican state lawmakers are under fire during their primary elections in 2018, they can expect even more accusations similar to those launched against them during this year's primary: Billboards proclaiming lawmakers oppose saving the lives of disabled children, televised accusations that incumbents are complicit in murder at the hands of illegal immigrants, and mail pieces designed to convince voters that Republicans care more about sensitivity training than securing the border, just to name a few.

Nasty attacks are part of the rough and tumble of campaigns. A thick skin is required.

Front groups concealing their donor lists, however, steal the right of the accused officeholder to face their accuser. And even more than officeholders have a right to know who is accusing them of various misdeeds, voters have a right to know who's pointing the finger.

This analysis first appeared in the Quorum Report. Copyright 2016, Harvey Kronberg, http://quorumreport.com/index.cfm, All rights are reserved. This story is presented as part of the Houston Chronicle's collaboration with Quorum Report. For inside information on Texas politics and government and to sign up for real-time updates, go here.