AUSTIN, Texas–Yesterday, the Texas Ethics Commission (“TEC”) held a public hearing regarding a complaint against Breitbart contributor Michael Quinn Sullivan and Empower Texans, the organization he leads, alleging that Sullivan improperly failed to register with the State of Texas as a lobbyist.
Despite having more than two years to put their case together, major weaknesses in the TEC’s case were exposed including political vendettas that motivated the complainants, failures to properly authenticate evidence, repeated attempts to undermine Sullivan’s attorney-client privilege rights, witnesses who violated procedural rules, inability to counter arguments presented by Sullivan’s counsel, and Commissioners whose own comments revealed their predetermined desire to rule against Sullivan.
The hearing lasted almost twelve hours, including breaks, and was the first in the twenty-six month history of this matter to be fully open to the public. Counsel for the TEC, Ian Steusloff, kicked off the day with an opening statement that argued that Empower Texans’ “fiscal responsibility index” scorecards, which grade legislators based on their votes and are posted on the Empower Texans website, along with Sullivan’s criticisms of Speaker Joe Straus, constituted lobbying. Steusloff said that the issue was “not just about scorecards,” but rather “who is paid to influence state government.”
Joe Nixon, Sullivan and Empower Texan’s attorney, countered that the “influence” standard in the law was too vague and there was insufficient evidence to prove the allegations against Sullivan. He said that regardless, the media exception afforded protections for his activities and an exemption from the statutory requirement to register as a lobbyist. Citing the Citizens United case, Nixon stated that where the law imposes a restriction on free speech but extends an exception to the media, then that same exception must be extended to all.
The TEC’s first witnesses were two politicians who signed the complaint, State Representative Jim Keffer, R-Eastland, and former Representative Vicki Truitt, R-Keller, who had earned low scores on the Empower Texans scorecard and are considered to be allies of Speaker Joe Straus. Truitt lost her seat in 2012 when a more conservative challenger defeated her in the primary. During Nixon’s cross-examination, both Keffer and Truitt admitted that they had not drafted the complaint they signed, but that it had been prepared by Steve Bresnen, an attorney and lobbyist for the Texas Trial Lawyers Association. They also admitted they had gotten involved not out of their own initiative, but because their consultant, Brian Eppstein, had suggested the idea to them.
Truitt also faced questions from Nixon about her inaccurate mention of the complaint on one of her campaign mail pieces, which stated that “formal ethics complaints have been filed against [Sullivan and Empower Texans] for false attacks.” The complaint does not allege that any statements by Sullivan were false (merely that he should have registered as a lobbyist to make them) and the TEC issued a resolution late last year condemning the mention of ethics complaints filed with the TEC in campaign communications.
More troubling were the violations of procedural rules by Truitt and Bresnen. Before testimony began, the attorneys for both sides had agreed on a legal procedural rule known as the rule of sequestration. The rule requires witnesses to leave the hearing room when they are not testifying and to refrain from accessing information about the proceedings or making public comments until their testimony is concluded and they are released. The purpose of the rule is to ensure that witnesses testify based on their own knowledge and recollections, and are not unduly influenced by testimony from other witnesses or interactions with the public. Both Truitt and Bresnen violated this rule, with Truitt getting caught referring to notes she had prepared on her iPad before the hearing, and Bresnen getting caught tweeting during the lunch break when he was in the middle of his testimony. Nixon moved to strike their testimony when these violations were discovered, but those motions were denied. Truitt was instructed to email her notes to counsel for both sides and Bresnen was instructed to stay off Twitter until his testimony was concluded (disclosure: some of Bresnen’s improper tweets were to this writer, but we have never met or interacted before yesterday).
When Sullivan was called to testify, he answered the first question–to state his name for the record–but then refused to answer any other questions, simply smiling and repeating, “On the advice of counsel, I’m not going to be testifying today.” Steusloff and the Commissioners both displayed annoyance and even exasperation at times from Sullivan’s refusal to testify, stopping their questioning periodically to lecture him on why they thought he should answer their questions. Nixon explained to the TEC that his client was refusing to testify based on his rights under the First, Fourth, and Fourteenth Amendments, not the Fifth Amendment, as many originally assumed when Sullivan first refused to answer.
After the hearing concluded, Nixon spoke exclusively with Breitbart Texas regarding this legal strategy, characterizing the TEC’s comments to his client that he should claim the Fifth Amendment instead as part of “a game they wanted to play.” “They wanted him to say ‘I refuse to testify because of my rights under the Fifth Amendment,’ because it sounds like you’re guilty of something,” said Nixon. “We had other privileges that we could utilize. We weren’t going to play their game.” Nixon also pointed out the potentially negative inference that could legally be drawn if Sullivan had pled the Fifth Amendment in yesterday’s hearing. “In a civil case, you can utilize the inference to imply guilt, although, to an extent, it’s a legal issue. I wasn’t going to give them the opportunity to do that. Because I didn’t need to do. They were going to make a big deal, ‘he pled the fifth!’ That speech at the end, the chairman’s speech was planned.” The actions of the Commissioners seemed to back up Nixon’s concerns about pleading the Fifth, with TEC Chairman Jim Clancy commenting after his last attempt to get Sullivan to testify, “well, then, the witness is going to have to bear the consequences of his actions.”
Throughout the hearing, there was frequent confusion about basic evidence rules that should have been well known to attorneys. Nixon made multiple timely objections to the admission of evidence based on the hearsay rule (e.g., documents prepared by Truitt’s chief of staff but of which she had no personal knowledge), improper authentication (e.g., documents where a clear chain of custody was not established), and also pushed back strongly against repeated attempts by Commissioners to get Sullivan to explain why he would not testify. The Commissioners themselves expressed confusion about some of the rules, with Commissioner Bob Long commenting at one point, “I’m not a lawyer. I don’t even understand half this stuff.”
TEC counsel Steusloff had several moments of questionable legal strategy as well, attempting to enter in more evidence after he had released all his witnesses, thereby leaving him without any way to properly authenticate the evidence, and, near the end of the hearing, incorrectly stating that the legal standard for First Amendment restrictions was not strict scrutiny, but something lower. The United States Supreme Court has ruled repeatedly that these type of restrictions are an assault on a fundamental constitutional right, and the higher strict scrutiny standard is appropriate (See, e.g., New York Times Co. vs. United States).
One of the key parts of Sullivan’s legal strategy was to argue that his activities fell within the media exception to the lobbying statute. As support for this argument, Nixon called as a witness Mark Lisheron, a veteran journalist with over thirty years’ experience who is currently the Senior Content Manager at Watchdog.org and previously worked at the Austin-American Statesman and the Milwaukee Journal Sentinel. He also lectured on journalism issues at the University of Texas at Austin and the University of California at Irvine. Steusloff objected to Lisheron being certified as an expert witness, but his objection was overruled after Lisheron’s long and distinguished resume was on the record.
Lisheron testified that he frequently visited the Empower Texans website and used the informational resources found there, and, in his opinion, they were a media outlet: “Empower Texans–and I’ll say this emphatically–is a bona fide news medium.” Lisheron also pointed out that other Texas media prepared legislative scorecards similar to Empower Texans, such as the Texas Tribune and Texas Monthly, and that it was entirely proper for a news outlet to provide both news and commentary. The TEC did not have any witnesses who countered Lisheron’s testimony. In fact, they offered no witnesses or evidence on the specific issue of the media exception whatsoever.
Counsel for both sides made closing arguments, with Nixon arguing that the law was impermissibly vague, that the TEC had failed to present sufficient evidence, and that the media exception applied. Chair Clancy called the hearing to a close, but not before first taking some time to again lecture Sullivan on his refusal to testify. A number of those observing the hearing told Breitbart Texas off the record that they had the strong impression that the Commission was determined to rule against Sullivan, regardless of what the evidence from today’s hearing had shown.
“They’re very narrow in their thinking,” said Nixon. “In fact, the chairman’s comments at the end show the narrowness of their thoughts. They didn’t consider, even in the closing comments, the exception that’s in the statute, that is so broad you could drive a battleship through it. Because they don’t want to deal with it…We were confronted with changing rules, and a new rule here, and an unused rule there…That’s been the history of this case, the rules bend and change at the whim of the Chair, who seems to want to find Mr. Sullivan guilty, which is shocking and extraordinarily unprofessional.”
Sullivan took a similar view, telling Breitbart Texas his opinion that the motivating factor in the filing of the complaint was not an ethical concern over potential unregistered lobbyists, but rather, “their entire position was predicated on our opposition to Joe Straus’ speakership.”
“They have decided we are guilty,” said Sullivan. “They’re going to have to come to grips with the fact that they’re guilty, of attempting to abuse the constitutional rights of Texans. Well, they picked on the wrong Texans. They’re not actually saying that all 26 million Texans have to register as lobbyists. What they’re saying is that all 26 million Texans have to live in fear that they might say the wrong thing, at the wrong time, about the wrong legislator’s pet project, and then they’re going to get drug in here for this kind of show trial.”
The next step in this case is awaiting a decision and written opinion from the TEC. Breitbart Texas will continue to cover this story.
Sarah Rumpf is a political and communications consultant living in Austin. You can follow her on Twitter at @rumpfshaker.