This Blog post has already been sent to all school board trustees. It is both longer and more technical than I usually shoot for here, but the presentation we expected last week was delayed until this Monday, 3/26. In that time I have had time to do a week's more research and that is what is presented here. I have little doubt that new information will come out Monday, we will add it to this site and if necessary apologize for my mistakes, but this should serve as a guide for pertinent questions if nothing else.
Open Letter To School Board Trustees:
I offer the results of my research in anticipation of the Election Ethics Training to be offered by Huckabee and Associates Monday evening. I have no reason to doubt Huckabee will be thorough and professional, but it may profit the board members to ponder some of the issues at hand prior to the presentation. Off of the SAISD agenda report on item 6, Ethics training, I read, “There are very clear parameters for written and oral communication about bond elections”. Well, maybe not so much.
The two primary Election Code references are going to be 251.001 and 255.003. Most commonly, people take 255.003(b), the second paragraph allowing “a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.” to be a truck sized loophole permitting almost anything not using specific “magic words” such as “vote for”, “support”, “defeat”, “elect” and therefore avoiding “express advocacy”. Well, maybe not so much.
Let's start with Ethics Advisory Opinions (EAO, henceforth) 37 and 45. (By the way, these opinions can be obtained in their entirety at www.ethics.state.tx.us/opinions then scroll down to the #) Both are from 1992, but some important groundwork is laid in. The first, 37, rules on a corporate, non-partisan, get-out-the-vote effort and finds that acceptable, the second rules on a school board's use of its existing internal mail system to support a bond measure, and finds that to be a violation. Most important here are the citations of 251.001 and 255.003 in both, making clear that the same principles which limit corporate expenditures apply also to “political subdivisions”, of which a school board is one. That linkage will come back in later EAOs. In fact, from EAO 45 “Thus, for example, a circular advocating a particular position on a bond election would be political advertising. An officer or employee of a school district is prohibited from spending funds “for” such a circular. Expenditures for distribution [italics by Commission] of a circular or other written materials are within that prohibition.” Did I read somewhere about a planned mailing of the bond brochure to potential voters?
If that seems perfectly clear, it is only because we have not come to EAO 198 from '94, one of the most complex Opinions due to a situation very much in flux. Here, a corporation was going to expand the “get-out-the-vote” principle by including candidates' records, summaries of positions, written answers to prepared questions and info about poll results and endorsements. In one paragraph, the Commission opines, “We believe the Texas Legislature intended section 253.094 to prohibit political expenditures by corporations and labor organizations to the full extent allowed by the Constitution, as interpreted by the US Supreme Court.” Problem was the Supreme Court had appeared to limit “express advocacy” (forbidden) to communications specifically using the phrases I called “magic words” from the Buckley v Valeo case and ruling further limitations as an unconstitutionally overbroad limitation on free speech. In note #2 to this EAO, Commission noted that Fifth Circuit (ours) had not addressed this limitation, but cited other Circuits which had, in short, the Appealate choir was singing off-key. The closest the Commission comes to giving firm direction in 198 is in the final paragraph, “Nevertheless, whether an actual communication constitutes express advocacy can be answered only on a case by case basis.”, which utterly useless direction was repeated in the case summary. If anyone thought it might actually sell a thousand copies, a scholarly book could be written about the confusion that produced 198.
Now comes 1996 with a clutch of Opinions, 327, 336 and 343. Although the first two do refer to 198, the Commission seems to have largely recovered from the case of the vapors it fell into with 198 two years prior. EAO 327 was a corporation which proposed to place candidate-supplied information on its internet site as a get-out the-vote effort. Commission ruled that so long as candidate access was totally even-handed, this internet proposal was legal. In 336, another corporation was proposing to allow candidates to place their literature in a site available to employees, again, a get-out-the-vote effort. In this case, Commission noted that while “express advocacy” would be there, it would be the product of the individual candidates, not of the corporation. So long as both the invitations to candidates and the access by employees were totally unbiased, this idea passed muster. Again, in a nod to 198, Commission stated, “whether a communication expressly advocates the election or defeat of a specific candidate will always depend on the the specific nature of the communication. This Commission therefore cannot give advance approval to a general plan.” and further that, “the answer to this question depends on whether each candidate in the election is given the same opportunity to provide information.”
EAO 343 comes from Austin. The city proposed to provide a televised candidate forum on the city's public access channel, but only available to those candidates who had agreed to an Austin inspired, extra-legal limitation on campaign contributions and expenditures. Commission opens with the statement, “In our view, a forum from which certain candidates are excluded would be a communication in support of those present.” Later; “The answer to this question depends on whether each candidate in the election is given the same opportunity to provide information.” Substitute “viewpoint on a measure” for candidate, which will absolutely be the equivalent if anyone forms an SPAC, well, we see where I'm going.
One last EAO, 443 from '02, last on-point EAO I'm aware of. In this event, some anonymous soul posted a school board candidate's flyer in a teacher's lounge that was not accessible to the public. In EAO 443 Commission states, “The question presented raises two separate issues: whether the situation described involves the 'spending' of public funds and, if so, whether the public funds would be spent “for” political advertising.” “In a 1992 advisory opinion, (EAO 45) we concluded that the “spending” of public funds included the use of school district employees' work time as well as the use of existing school district equipment.”
According to the Presentation Schedule at http://saisd.huckabee-inc.com we are going to send our new superintendent and at least two other well paid SAISD employees on a 30 stop whistle tour of every group that will sit still to listen to them between now and election day. At least seven are listed as “no” on the public welcome column, and all but two of those open to the public scheduled for what those of us with day jobs would call normal working hours. This schedule not only precludes attendance by those of us who work regularly to pay the taxes this bond will increase, it opens the question of whether we will be “spending” compensated employee pay to advocate in favor of the bond. Avoiding the “magic words” from SCOTUS is not a definitive shield. Use of those terms, such as “vote for”, “favor”, or “pass” would constitute a definite violation, but beyond that Ethics Commission warns repeatedly that prior approval cannot be given to a general plan and legality will depend on specific language on a case by case basis.
Beyond the legality, Board would do itself a favor by remembering it is trying this case not primarily before an Appealate Court panel, but before a jury of voters and taxpayers. Any possible legal repercussions will be on down the road. Convince the voters you are skating too close to the thin ice and you will definitely lose an election voters are already thinking is overpriced..
By the way Huckabee, we were slap serious about being even-handed. I've already mentioned your new website and your comments on our site, www.conchoinfo.org are welcome and will not be removed for other than the usual rules, obscenity, personal attack, etc. We anxiously await invitations to bond critics to present at the 30 meetings coming up, not to mention the creation of a reader comment section on the new website. It would not hurt our feelings to have some disclosure of exactly who is paying for the cute little 4x5 stick-figure ads in the Standard-Times. Oh, duh, getting slow in my old age, we the taxpayers are, of course. Still be nice to know who is writing the checks off which account.