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A Knife in the Dark

On June 14th, Governor Gregg Abbot (R) of Texas passed into law House Bill 4181, or the “Bill Relating to the Organization and Efficient Operation of the Legislative Branch of State Government.” As the formal title suggests, the bill appears to be mostly concerned with mundane housekeeping matters of the Texas legislature: new procedures for appointing temporary officers in session, some clarification on special committee rules, and who presides over the senate if the Lieutenant Governor is on vacation. However, buried within the bill’s several hundred pages of “minor tweaks,” as its sponsor Rep. Charlie Geren (R-Fort Worth) calls them, is what Joe Larson, member of the Texas Freedom of Information Association, calls “a knife in the dark.”

Among HB4181’s provisions are sufficiently alarming changes to the handling of legislative records, alternatively called the “Legislative Privileges” Clause. Under the text of this clause, private communications concerning a “legislative activity or function” would be considered confidential and subject to a “legislative privilege” exemption. This would be applicable to documents and records such as private communications among lawmakers, staffers, secretaries, the House Speaker, the Lieutenant Governor, chairs and members of legislative committees, and the governing boards of legislative agencies. These changes would alter the statute of the Texas Public Information Act, which was passed in 1973 and has been amended post-facto on a few occasions since. The previous law mandated that all legislative members maintain open records of all of their legislative communications, for the sake of transparency to the public and the mediarecords could only be withheld on appeal if a congressman believe its release would impede the fair formation of a potential piece of legislation. However, under the new changes made in this last session, lawmakers would now not be compelled to hand over their communications for the sake of “legislative efficiency”—which has raised concerns amongst public interest groups and some lawmakers.

“My instinct is it’s not in the best interest of transparency to have the party seeking to not disclose documents being the [sole] arbiter on that,” said state Senator Kirk Watson (D-Austin) in a statement following the passing of the bill in the Texas Senate. Senator Watson had sponsored several separate pieces of legislation during the most recent state legislative session aimed at increasing the transparency of the government’s actions—one such bill, Senate Bill 943, closed an important loophole in state contracting procedures that previously didn’t require the state to disclose the details of public-private contracts to the public. The loophole was dubbed the “Boeing Loophole” by state lawmakers on both sides of the aisle—partly due to a lawsuit that the airplane manufacturer filed in 2015 to keep its leasing agreements with the government, private, and alternatively because “it was so damn big—a plane could fly through it!” as State Representative Giovanni Capriglione (R-Fort Worth) so eloquently put it.

However, despite these recent gains in a statewide push for more government transparency and accountability, Senator Waston still contends that bills like HB4181 and the Legislative Privilege Clause provide “such broad exceptions to the Public Information Act for legislative documents and communications” that compelled him not to vote for the bill when it was introduced to the Texas Senate. State Representative Mayes Middleton (R-Wallisville) also voted against the final version of the legislation after an unrelated clause was amended in the Senate and the bill was moved back to the House.  Representative Middleton said he “strongly disagrees with the trajectory of the bill” and that it goes “against greater transparency” of legislative affairs.

Public transparency is of great concern to lawmakers in both parties, as well as it ought to be to the public. Removing requirements for public disclosures could make it easier for legislators to conceal dealings with special-interests, lobbyists, or even deep-six organizations that lawmakers may be inclined to make deals with in exchange for political favors. This would still be illegal, obviously, but providing a degree of “legislative privilege” over a legislator’s communications would leave a lot of open opportunities to wheel-and-deal unbeknownst to the public. The legislative privilege may be invoked similarly to attorney-client privilege, in which communications pertaining to legal matters of legislators may also be concealed from the public before indictments are filed—making it harder for attorneys and public interest firms to investigate for potential indictments. This is certainly something that Texas can’t afford to risk—the state’s own Attorney General Ken Paxton was indicted in 2015 by a state grand jury for three criminal charges: two counts of securities fraud (first-degree felony) and one count of failing to register with state securities regulators. Despite the charges he is still currently serving as State Attorney General, and his wife, Senator Angela Paxton (R-McKinney), was recently elected to the State Senate in 2019 on her slogan “pistol-packin’ mamma, whose husband sues Obama.” 

Needless to say, transparency couldn’t be a more pressing issue in Texas politics. In addition to concerns over special-interests, some legislators and public advocates also speculate that the addition of the Legislative Privilege Clause to HB4181 was intended to make it tougher to track lawmakers in the upcoming redrawing of political maps in Texas in 2021. There’s considerable suspicion, especially following the Supreme Court’s recent ruling on Rucho v. Common Cause, that politicians may be more ambitious in gerrymandering the new political map. Democrats made significant gains in the last state legislative election, picking up a few seats in the Senate and twelve in the house, making the long-established Republican government wary of potentially losing their majority in one of the legislative chambers. The simple solution to this, as the state of North Carolina did in the context of Rucho, would be to employ staffers and third-party statistical consulting groups to redraw voting district maps in 2021 to “crack” and “pack” the Democratic vote. Most of the evidence brought against North Carolina’s gerrymandering practices in Rucho came from publicly accessible communications records between NC lawmakers and staffers, in which they made specific requests to “produce a map that makes sure we win.” The transparency of these public records were what allowed independent citizens, alongside public interest groups like Common Cause, to investigate into partisan gerrymandering in North Carolina and build evidence for the lawsuit. However, in Texas following the passing of HB4181, these communications records would be kept secret from the public and these groups’ investigations until criminal charges are filed, which would present a serious roadblock to public accountability if severe gerrymandering were to occur to protect the Republican establishment in 2021.

In between HB4181’s provisions of legislative privilege, changes to how records of the legislature are collected, processed, and kept, and changes to the legal process for obtaining official records, the language of this new law is blatantly offensive to the principles of effective and just government. An editorial from the Dallas Morning News, in the aftermath of the bill’s passing, claimed that “if this [bill] sounds like a license to hide dirt, or an end run around public accountability, it is.” In addition to assertions like these, changes like this that sever components of accountability between the public and the government only serve to breed political cynicism, and widen the gap between the public and the legislature’s credibility. With protest to HB4181 only coming in the wake of its passing into law, there aren’t many chances to change the circumstances of the law. However, in the meantime before the next state legislative session, citizens can press for more voluntary transparency as some legislators start to campaign for their votes ahead of 2020.