Houston Chronicle

Judge: Legislatur­e video, audio OK in ads

Challenger in state representa­tive race wins suit to overturn ban of footage in campaigns

- By David Saleh Rauf

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.

 ??  ?? Briscoe Cain, left, had sought to use footoge from the House floor in campaign ads against Wayne Smith on social media.
Briscoe Cain, left, had sought to use footoge from the House floor in campaign ads against Wayne Smith on social media.
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