Multiple amicus briefs have been filed with the U.S. Supreme Court challenging the Texas Ethics Commission's enforcement of lobbying regulations against Michael Quinn Sullivan, a prominent Texas conservative. The dispute centers on whether the Commission's requirement for individuals to register and pay fees before engaging in certain communications with public officials infringes upon First Amendment rights.
Of particular note, Texas Attorney General Ken Paxton has taken the unusual step of opposing the state agency by submitting an amicus brief that supports Sullivan’s position in the case. Paxton argues that the TEC actions violate constitutional protections.
"It is antithetical to the First Amendment that a private citizen... must register with the government, make disclosures to the government, and even pay a fee to the government to simply email elected officials about matters of significant public concern,” Paxton stated in his filing.
The communication by Sullivan that led to the legal dispute occurred during 2010 and 2011. In April 2012, two Texas state representatives filed complaints alleging that Sullivan had failed to register as a lobbyist during that period, which they claimed was required before he could lawfully issue the communications. Following a two-year investigation, the Commission fined Sullivan $10,000 in 2014. The TEC said that his emails to inform legislators and the public constituted “lobbying" under Chapter 305 of the Texas Government Code.
Sullivan has fought the ruling for more than a decade, arguing that the communications were protected free speech, and should never have been labeled as lobbying. The TEC went so far as to place a lien on Sullivan’s family residence as a means to pressure him to pay the fine rather than challenge the ruling. He is now asking the U.S. Supreme Court to review the case.
Paxton warns that the Texas Ethics Commission's enforcement could set a dangerous precedent, adding, “If the state can force private citizens to get a government permission slip before speaking on policy issues, then the First Amendment’s guarantee of free speech is rendered meaningless.”
The Manhattan Institute, a public policy think tank, also filed a brief criticizing the registration requirement. The Institute contends that such mandates act as a form of censorship, effectively silencing speech under the guise of regulation. The Institute warns, "Licensing schemes, though they may appear harmless, can often serve as proxy 'prior restraints.'"
The Cato Institute and the Foundation for Individual Rights and Expression (FIRE) submitted a joint brief emphasizing broader implications in the case. They argue that Texas's regulations impose unconstitutional prior restraints on political speech, potentially deterring average citizens from participating in democratic discourse. Their brief asserts, "The right to engage in political speech is fundamental to democracy."
The Supreme Court has not indicated whether it will hear the case.
