Judge: Legislature video, audio OK in ads
Challenger in state representative race wins suit to overturn ban of footage in campaigns
AUSTIN — A Harris County state district judge ruled Tuesday that a state law barring the use of audio and video produced by the Legislature in political ads likely is unconstitutional, blocking enforcement of a two-decade-old ban that critics said was aimed at protecting incumbents from election challengers.
A tea party House candidate challenging one of Speaker Joe Straus’ lieutenants in a runoff sued the Texas Ethics Commission to strike down the law that prohibits the use of audio and video from the floor of the House and Senate, along with committee hearings, in political ads.
State District Judge Brent Gamble granted a temporary injunction requested by Briscoe Cain, a Harris County lawyer in a May 24 runoff with state Rep. Wayne Smith, R-Baytown.
Cain wants to use footage in his campaign ads of Smith from the House floor during the 2013 and 2015 legislative sessions. According to a court filing, Cain is planning to use the taxpayer-funded footage of Smith in ads on social media websites.
The law prohibits “a person from using in political advertising any audio or visual materials produced by or under the direction of the legislature or of a house, committee, or agency of the legislature.” It carries a fine of up to $5,000.
Cain sued the ethics commission, which enforces the law, in late April and claimed the state was engaging in censorship and trying to stifle political speech. Cain also charged that the state law amounted to nothing more than protection for incumbents who did not want potentially unflattering footage of their work at the Capitol to appear in political ads.
“Overall it’s a win for the First Amendment because it allows anybody in the state of Texas to use audio and video produced by taxpayers to hold elected officials accountable,” said Trey Trainor, a lawyer representing Cain.
The law originally was passed in 1995 and amended in 2013 by state Rep. Charlie Geren, R-Fort Worth, “to impose additional limits on the use of audio or visual materials produced by or under the direction of the legislature,” according to a bill analysis.
Legal experts had predicted the
law would be thrown out by a judge, and the current and former chairman of the ethics commission also cast doubt on whether the Legislature could place prohibitions on the use of the taxpayer-funded footage.
The ethics commission recommended before the start of the 2015 legislative session that lawmakers repeal or narrow the law. The suggestion was ignored.
It led to a somewhat awkward situation when the lawsuit was filed last month and Attorney General Ken Paxton’s Office refused to represent the ethics commission in the case.
Paxton’s office never explained why it was refraining from the case, but ethics commission Chairman Chase Untermeyer said the attorney general’s office also thought the law was unconstitutional. The ethics commission ended up hiring an outside lawyer, Eric Nichols, a former deputy attorney general for criminal justice to defend the state in the case.
Nichols did not return a request for comment Tuesday.
Gamble’s ruling Tuesday is not the final say in the case. The law has been temporarily blocked.
A trial, which will be overseen by Gamble, has been set for Dec. 5, just weeks before the start of the next legislative session.