House Bill 187
(Local Government Code 152.052):
"Truth in Campaigning" or
"Local Incumbent's Protection Act?"

It must have been terrible. Though it is not widely known, about a decade and a half ago, the hapless fellowship of County Treasurers in this state suffered a vicious attack on their livelihoods and their dedication and service to the public good. In what seemed for all the world a vast anti-government conspiracy, candidates for that office were springing up all over the state hawking the blasphemous idea that the best thing to do with a County Treasurer's office would be to deep-six it. --- An abolition movement had set in.

The mayhem began in Bexar County in the early 1980s, and by 1989 a total of nine County Treasurer's offices had been abolished, with Andrews, Bee, Collin, Fayette, Gregg, Hunt, Nueces, and Tarrant counties being added to the casualty list.

One can only imagine the distress this caused in the 240 some odd surviving Treasurer's office across the state. Just think about it. Suppose you had a nice cushy job on the county payroll (drawing about 30 grand a year), and all of a sudden there's these yahoos going around spreading the notion that jobs like yours aren't really necessary, cost the taxpayers too much money, and ought to be done away with. Worse, they were saying, if only the voters would elect them, that's just what they'd do! And oh, gee, what might happen if some body in your county were to run against you spewing that insidious anti-government stuff? Even though you just knew you were the county sweetheart, you could never tell what some of those more ignorant voters might do, what with these scalawags putting such ideas in their heads.

Oh, my. Would hubby have to sell his duallie? Oh my, what to do? Well, they needn't have worried, and they didn't: They just went to work - behind the scenes. People with friends in high places, it seems - or in low places like the Texas Legislature -- rarely need to worry when mere ethical or constitutional considerations stand in the way of protecting the status quo. By 1990, even more suddenly than it had arisen, the abolition movement had come to a screeching halt, and in spite of the flurry of abolitions in the 80s, not a single Treasurer's office has been abolished in the last eleven years.

How did that happen? Let's consider a little chronology.

In early 1989, according to her later testimony, State Representative Phyllis Robinson, D-Gonzales, attended "a meeting with the County Treasurers" in College Station. At that meeting, she was "made aware" of several instances of candidates running for the office of County Treasurer on the promise of working to abolish these offices. The horror of it all (as if the county treasurers thought it was perfectly all right to abolish their offices) was that the state was overrun by abolition candidates who were not keeping their campaign promises, but, instead, taking the offices and taking the money, too.

This, obviously, had to be stopped! Can't have politicians reneging on their campaign pledges, can we? So after learning of these evil doings, Representative Robinson headed back to Austin, apparently enlisted the help of Senator Judith Zaffirini, D-Laredo, and the two of them set about drafting legislation to remedy this heinous fraud. Their product, known as House Bill 187, was introduced in the legislative session of 1989 and, on subsequent passage, would become part of Local Government Code 152.052.

Local Government Code 152.052. Decision to Reduce Compensation or Not to Be Paid

(a) Within five days after the date an elected county or precinct officer takes office, the officer shall file an affidavit with the county payroll officer stating that the officer elects not to be paid for the officer's services if, during the person's campaign for election to the county or precinct office, the person publicly advocated the abolition of the office.
The affidavit must include a statement by the officer describing the method by which the officer intends to seek to obtain the abolition of the office for which the officer was elected and the date by which it is proposed to be accomplished.

And what was the solution crafted by these good public servants sworn to uphold the Constitution? It was to require that any candidate, who in his campaign for a county office publicly advocated the abolition of that office, relinquish any pay he otherwise would have received for services in that office. [See Sidebar.] In other words, if, in campaigning, you ever quipped, remarked, exclaimed, mused, opined, wrote, said or otherwise communicated that the office might properly be abolished, then you - you smart aleck interloper - won't get paid a dime for your work if you win the election. Even if the job has duties that by law must be performed. Even if, as in the case of a Constitutional office, it may take a year or more to set the stage for abolition.

That'll teach 'em to keep their mouths shut, won't it?

When introducing this bill to the House Floor debate of March 1,1989, Representative Robinson again based the need for the new law on the "fact" that candidates had run for office promising to abolish these offices only to change their mind when taking office. "The voters", she said, with a nearly straight face, "feel like they've been duped."

Alas, the real "duping" had just begun.

House Bill 187 Suffers The Scrutiny Of The Five Minute Hearing

To support her legislation, Ms. Robinson brought a number of witnesses to the initial hearing on the bill; among them were Representative Henry Cuellar (D-Laredo), Adolph Thomae, Jr., County Commissioner of Cameron County and President of the Texas Association of Counties, and Vic Burgess, County Judge of Denton County.

Again, the contention was that the abolitionists, once they had won office and begun receiving a salary, were conveniently losing interest in the abolition they had promised the voters. "Take the money and stay" had become an attractive alternative.

Supposedly.

Under questioning by Committee Chair Mark Stiles, however, Mr. Thomae, the primary supporting witness, let the cat out of the bag. Asked directly by Stiles how many instances we've had of "this problem," Mr. Thomae stated, "We've probably had a half a dozen Treasurers offices done away with."

"And people still receive the salaries?" the committee member asked.

"No, um," responded Mr. Thomae, "I don't know about that ... most of 'em, after they're termin...after they're terminated...they'll go ahead and run on that platform, they may draw a salary, but once it's voted on ...uh...and it becomes part of the con...like a constitutional amendment at a general election, then the office is abolished and you no longer have the office."

How's that again? Yeh, you got it: Thomae thought he was supposed to go before that committee and 7345; of all things - tell the truth. Despite the claim of wide-spread lying to voters and reneging on campaign promises, however, this primary witness acknowledged that candidates elected on abolition platforms had, in fact, been carrying through with their stated intentions.

In other words, the "problem" Ms. Robinson's legislation was designed to remedy did not exist; the entire rationale, in fact, was based on an utter falsehood.

In the end, neither Thomae nor any other witness could provide an example wherein a candidate advocating abolition had reneged on his campaign promise.

This, unfortunately, did not register with any of the committee members.

Anybody Wanna Enforce This Turkey? Any Volunteers?

In a hearing of the Committee on County Affairs February 28, 1989, Ms. Robinson was asked by another Representative, a Ms. Krier from Bexar County, as to how this law would be enforced, strongly implying that, for some reason, no county officer would want such authority. To this, Ms. Robinson answered that the Commissioner's Courts were to be informed they would have no authority in the matter. Under further questioning, she assured the committee that, indeed, no county officer would have authority to enforce this law; enforcement, it turns out, was to hinge solely on the candidate's voluntary compliance.

The Real Skinny

The enforcement question being laid to rest, Robinson was then asked whether the idea of the new provision was that "Candidates who might otherwise advocate abolition may not advocate abolition if they knew they might lose their money?"

"That's correct;" replied Ms. Robinson, inadvertently revealing the real intent of the proposed law.

Then, as if to underscore the major concern of those College Station attendants, she explained that a candidate running on the platform of abolishing an office was a sure winner, and, somehow, unfairly so.

"They can't lose ", she said. "They're going to get elected."

In Part 2, we'll see just how devoted the Senate is to Constitutional principles and discuss why this law may be unconstitutional. Also, what about small tyrannies: Do they matter?]

The Senate Steps Up and Strikes Out ,Too

In the Senate, House Bill 187 was sponsored by State Senator Judith Zaffirini. At the first hearing in the Committee of Intergovernmental Affairs, on March 21, 1989, Ms. Zaffirini's statement reiterated the claim that abolition candidates were, after being elected, failing to abolish the offices. Then, in a rather shrewd tactical move, Senator Zaffirini quickly changed to another point, wherein a county commissioner had pledged to contribute a part of his salary to the county. In that instance, it was found through an Attorney General's opinion that he could not do so because the county could not legally accept contributions. (In addition to adding the abolitionist provision HB187 included revisionary language to address this problem - not bad law, actually -- but it served beautifully as a smoke screen for the less savory part of the Robinson/Zaffirini handiwork.)

Asked directly if there were any Constitutionality problems, Ms. Zaffirini said, "No, we have been working closely with Legislative Council and the Attorney General and they have assured us there is no problem". When asked "what sanction is there for a person to file such an affidavit", her answer was "None. If there were, it might be un-Constitutional." This brought a round of chuckles from the senators in attendance.

Some joke. But we know from this exchange that

  1. even the authors were aware that they were walking on the margins of the Constitution and
  2. that they hoped to circumvent Constitutional objections by deliberately writing a law that provided no enforcement provisions.

In confirmation of this, a witness for the Texas Association of Counties also testified that the sponsors were aware there might be some problems with sanctions in the bill; but, he said, the principle was good in making officers do as they say. (So good, might we infer, as to brush aside the constitutional questions raised?)

In the second Senate hearing of April 4, 1989, the witness finally came up with an officer who did not keep his campaign promise; however, the villain was this previously mentioned county commissioner who had promised to give back a portion of his salary to the county. Or was he a villain? Initially, they painted him with mud for not keeping his campaign promise, but then it was acknowledged that it was actually an opinion from the office of the Attorney General that kept him from keeping his promise. As noted above, it seems that prior to this instance it was illegal for a county officer to give part of his salary though he could give it all, but the county could not accept his contribution by law. So, also as noted above, the bill would rectify this problem by giving the officer a way to return any portion of his salary to the county, and allowing the county to accept it as a donation.

Still, no example of an abolition candidate reneging on his campaign promises. And it might be noted that discussion of this case had no relevance whatsoever to the bill's provision to preemptively strip an abolitionist.

Except, welcome to the Texas Legislature.

As we have seen (although there is strong circumstantial evidence to suggest otherwise), it was argued by the sponsors of this statute, that the law is merely a "Truth in Campaigning" measure designed to enforce the campaign promises of wily politicians who say they'll abolish an office and then change their minds once elected.

Sounds like a good and reasonable goal.

But -- no matter how noble the purported cause behind a piece of legislation notice should be taken of its accord with Constitutional principles. Under our system, means - supposedly -- are not justified by ends, and however few they may have been, opponents of this bill in 1989 were correct to say, as reported by the House Research Organization, that:

This bill proposes a heavy-handed infringement on the free-speech rights of candidates in a futile attempt to force office holders to carry out their campaign promises once elected. Proposing a monetary penalty in advance, for an alleged failure to live up to a campaign statement would raise serious constitutional questions about abridging freedom of speech and curtailing the free exchange of ideas during a political campaign. The next step will be to enact laws penalizing all office holders for any alleged failure to keep any campaign promise.

There's little doubt that the scope of free speech protections under the First Amendment has expanded enormously over the past century, even so far as to cover speech and other "expression," such as pornography, exotic dancing and the burning of flags. However one may feel about these particular liberties (and, as a Libertarian, I am all in favor of them), Robert Bork is probably right about them: The notion of their being unalienable rights was never contemplated by the authors of our Bill of Rights.

The core protection of the First Amendment, however, has -- from the beginning -- extended to shield political expression from retaliatory action by government. That, after all, is it's real reason for being: To allow for the free exchange of ideas. Without it, the notion of free, but peaceful agitation for change is a joke. In a free society the citizen must have a right to advocate for political change without being subject to
(1) preemptive law that outright bans expression through active censorship, or
(2) government actions that, after the fact, impose consequences for the exercise of free speech. The latter, in effect, chills a citizen's interest in that exercise acting on it. This is long-settled judicial doctrine.

It is in this context that HB 187 defines itself as unconstitutional; the very presence of the words "publicly advocated" is a flag that ought to raise the eyebrows of anyone remotely devoted to the principles of the First Amendment. To connect a consequence like denial of pay with what a person has said - in the open language of the law -- makes it a brazen violation.

Sadly, if you approach the average person on the street with this statute he will very likely think this appropriate law. After all, you're just making the person do what he said he would do, aren't you? Some (even some libertarians who in their zeal to "stick-it-to-a-politician" may not see past that immediate gratification to the long-term, precedential aspects of this) insist on viewing it from this contractual, "compact-with-the-voter" perspective. To them, I say, sit down with the language of the law, a dictionary and an open mind, and note: "To advocate"/ (--v.t., to plead in favor of, support or urge by argument, recommend publicly) is no synonym for "to promise"(--v.t , to declare that something will or will not be done). In short, there is no contract to perform implied by what one advocates.

Of course, there is a conspicuous absence here of any interest in applying the "truth-in-campaigning" principle to offices beyond those of minor league incumbents whose positions were being threatened. The law applies to no governors, lieutenant governors, comptrollers, secretaries of state or attorneys general who promise to produce, but don't.

Neither does it apply to the legislator who promises to produce, but doesn't. If it did, an analogous application to legislators might be to proportionately reduce their pay by the amount of tax increases they impose upon the citizenry while having campaigned against tax increases -- or vice versa. (Insofar as I am aware, no one has ever been denied remuneration for serving in office for publicly advocating the raising of taxes or advocating the lowering of them and then failing to uphold their promises.) No "Truth in Campaigning" measure, we may be sure, will ever take effect with such broad coverage. But, again, this begs the question of whether House Bill 187 was really a "Truth in Campaigning" law or whether it was, in fact, an "Incumbents Protection Act."

I would note that the bill passed the House with all but two voting for it. None voted against it, and it passed the Senate by acclaim. It troubles me that there was no voice to speak of Constitutional protections of speech and equal protection under the law, both of which this law denies. Tyranny won that day. A small tyranny, perhaps, but a tyranny, nonetheless.

I keep wondering what happened to those opponents.

Article was printed in Lone Star Liberty June 2001 edition


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