You’ve probably noticed that I usually don’t say much about campaign financing laws – that reflects a longstanding (and somewhat odd) division of labor brought about by the creation of the Texas Ethics Commission over two decades ago. The Elections Division at the Texas Secretary of State once housed an Ethics Section, but those days were long over by the time I got into the election law business, and I spent all my time thinking about the quotidian details of the voting process (i.e., where to set up the folding chairs and long tables at the polling places, making sure the machines were plugged in, and trying not to violate the Voting Rights Act).
But the ethics stuff is critically important – the role of “one dollar, one vote” in American politics is the most serious destabilizing factor that our government faces. In fact, future generations may one day point to this era as the one in which the United States explicitly transformed its form of government from an indirect representative democracy into a corporate oligopoly. Yes, I’m looking at you, U.S. Supreme Court.
But in the midst of the larger national turmoil caused by the escalating monetizing of elections, Greg Abbott has tried to steal a little of Wendy Davis’s thunder by arguing that her newly published biography allows for the injection of corporate money into her campaign, in violation of state ethics laws.
Who would have thought that Greg Abbott would position himself as a champion of the enforcement of campaign ethics laws? There’s just one problem.
Section 253.100(d) of the Texas Election Code prohibits a corporation from directly supporting a candidate or cause – the money must instead be filtered through a general purpose political action committee. Greg Abbott argues that because Wendy Davis has published a book, and because that book is being circulated at a time coincident with the run-up to the November election, that the printing and promotion of the book constitute corporate spending in direct support of a candidate.
The problem is that if Section 253.100 of the Election Code is used to shut down the publication or distribution of a biography, such a use constitutes governmental prior restraint on free speech. The biography is reportage – it expresses the political opinions and development of ideas of the candidate. It is not a TV ad or rally for the candidate. The candidate is not handing out beer or hot dogs to voters. The candidate is speaking about her life. As the Texas Supreme Court ruled in In Re Newton, 146 S.W.3d 648 (2004), one cannot merely impose the prohibition against a specific kind of corporate spending without analyzing whether that limitation violates the First Amendment.
That book must be a good read for Abbott to be so fixated on tossing it in the fire.