Pro-gun mailer draws scrutiny

Group’s ads may have violated Texas’ new ethics law

AUSTIN — The yellow flier featuring a picture of Texas House Speaker Joe Straus’ face hit mailboxes in San Antonio’s northwest side just days before this year’s primary.

A message in all caps streamed across the banner: “F RATED CANDIDATE.”

“Enemy of gun-owners’ rights. A candidate who has repeatedly and unapologetically killed pro-gun legislation,” reads the mailer from the Colorado-based National Association of Gun Owners.

The direct mail piece, and potentially others dropped into state House districts right before the primary, may have run afoul of a new and still untested state campaign finance law broadening disclosure requirements for third-party communications in the weeks leading to an election, experts say.

During any other election cycle, the mailer from the pro-gun group would have instantly qualified as an issue-driven ad: one that bolsters a public official or aims to damage another but stays clear of calling for the election or defeat of a candidate. Issue advocacy does not require disclosure with the state.

But the most recent election cycle in Texas was different. It marked the first round of major state races since the Texas Ethics Commission adopted a rule targeting TV, radio, Internet and mail pieces that attack the character of a candidate, even if the ads lack any socalled “magic words” that would normally trigger disclosure with regulators.

In October, the commission moved toward expanded disclosure for groups such as 501(c)4 nonprofits if an ad is floated close to an election and is “susceptible to no other reasonable interpretation than to urge the passage or defeat” of a candidate.

At issue: an attempt to clarify what type of communications by an outside group is regulated as a political expenditure. It’s taken on new scope in recent years as special interest groups spend money on ads that often blur the lines between issue-based advocacy and aggressive attack-based politicking.

“The danger that undermines the whole law is you run the risk of forcing people to avoid talking about public officials when they put out an ad about an issue,” said Jerad Najvar, a campaign finance lawyer who represents conservative groups. “You run the risk of chilling people away from talking about issues.”

Mailers not reported

The National Association of Gun Owners is a 501(c)4 nonprofit, which is not required to report activity to the state unless it qualifies as a campaign expenditure. The yellow mailers targeting Straus have not been reported to the Texas Ethics Commission, according to state records.

The pro-gun group also did not disclose mailers sent in the final weeks of the primary into a state House district in Corsicana. One side of the flier has an image of a person in handcuffs and the message: “Why Does Rep. Byron Cook Want to Treat Gun Owners like Criminals?” At the time, Cook was locked in an expensive primary battle.

Ron Paul’s 501(c)4, a group called Campaign For Liberty, also sent mailers into Straus’ district right before the primary with a picture of the San Antonio Republican and a header that reads: “Straus Is Trying to Hide His Big Government Record!” Those mailers also were not reported to the state’s campaign finance regulator.

The two groups did not return a request for comment, and their mailers say they do not oppose or support any candidate. The mailers also make respective calls for action, urging recipients to contact Straus and Cook.

Experts disagree

Five campaign finance experts who analyzed the direct mail pieces came to differing conclusions but agreed that the ads walk a fine line between educating voters on issues and potentially violating the state’s attempt to regulate thirdparty campaign communications by failing to disclose the activity.

Larry Noble, general counsel for the Washington, D.C.-based Campaign Legal Center and a former general counsel for the Federal Elections Commission, said all three mailers fit the category of a “sham issue ads.” He said all three were framed to specifically avoid using any magic words but were clearly intended to influence the outcome of an election.

He said the new Texas regulation expanding disclosure should apply to all three.

“These can definitely be read to be advocating for a candidate to be defeated. There’s no other reason for this,” said Noble. “It’s so easy to avoid using magic words that if these are allowed to slip through then the law pretty much becomes meaningless.”

David Keating, president of the Center for Competitive Politics, a nonprofit based in Washington, D.C., disagreed. He said each of the mailers is “hard hitting” but qualify as issue ads because they take a position on matters of public importance.

“They all have advocacy in there. One way of pushing the candidates really hard is to take a big whack at them,” he said. “There are other reasonable interpretations of what they’re trying to accomplish here.”

The differing opinions among experts highlights a conundrum for regulators: when is a third-party ad considered a campaign expenditure that requires disclosure?

That’s exactly what the commission was trying to clarify when it embarked on a roughly 10-month rule-making expedition, eventually passing what is considered one of the weightiest and controversial disclosure regulations in recent state history.

For decades, Texas campaign finance law relied on a magic words test to determine if an ad met the threshold of political activity. Examples of those words include “vote for,” “support” or “elect.”

Under the rule, communication becomes the functional equivalent of a political ad if it: is disseminated by TV, radio, mail, or Internet; refers to a clearly identified candidate; is distributed within 30 days of an election; and targets a mass audience the candidate seeks to represent.

A key component, taken from a U.S. Supreme Court decision, also requires the ad to be “susceptible to no other reasonable interpretation than to urge the passage or defeat” of a candidate.

The Texas regulation has yet to be applied. However, regulators gave examples during debates on the rule about how they could put it to use.

“Sometimes all it takes is a picture of a candidate and the word moderate,” Jim Clancy, a member of the Texas Ethics Commission, said at a meeting last year. “Sometimes that’s susceptible to no other reasonable interpretation.”

Keiting said it’s going to come down to “just how reasonable the interpretation might be by the Texas regulators” on a case-bycase basis.

“If people want to push an issue hard they know if they go outside the 30-day line, they are a lot safer,” Keiting said. “But if you get inside the 30-day line you may be taking a risk.”