Texas Goes After Pro-Bono Legal Help


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The election-law police are always looking for new ways to limit political speech, and their next victim may be public-interest law firms. That’s now being put to the test in Texas, where the state Ethics Commission could decide Thursday whether a law firm can be barred from offering pro-bono legal help to a candidate.

Under the commission’s draft advisory opinion, a public-interest firm that provides free legal services to a candidate would be making an in-kind campaign contribution. Legal billing adds up quickly, so any firm that offered pro-bono help would also risk a change in its tax-exempt status and disclosure of its donors.

The issue arose when the Institute for Free Speech asked the Ethics Commission for an advisory opinion on whether its legal help would be allowed to challenge the constitutionality of a Texas law or regulation issued by the Ethics Commission. In the draft opinion, the commission explained that pro-bono services would be in-kind campaign contributions simply “because the requestor’s standing to pursue such a challenge would depend on its client’s status as a candidate or political committee.”

So let’s see: Candidates are the most likely to have standing to challenge election rules, but per the Election Commission, they can’t hire a public-interest lawyer to do it.

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The Texas opinion is a threat to 501(c)3 groups that would be faced with compromising their core mission. Public-interest law firms that do pro-bono work are offering candidates the free legal advice they offer anyone. The draft opinion also threatens the ability of candidates to file legal challenges, which are often expensive and time consuming, costing more than what many small local campaigns can raise. Pro-bono legal help may be the only kind realistically available.

Before the commission adopts its draft, it should also consider that its effect would be pre-empted by federal law. Section 1983 allows citizens to sue state government officials for violations of civil rights. If the Texas Ethics Commission blocks the pro-bono work, it would effectively be exempting itselffrom accountability. If a state law prevents citizens from being able to access remedies Congress intended them to have, federal pre-emption applies.

The issue should concern groups on the left and right. In a letter objecting to the draft opinion, the ACLU of Texas notes that the rule doesn’t provide carve-outs for groups that provide pro-bono legal services to “defend civil rights and civil liberties.” The fact that a candidate may be involved in litigation that aims to defend civil rights doesn’t mean that the litigation influenced or contributed to the candidate’s election.

The letter notes that the Supreme Court has ruled that, for groups like the ACLU, “litigation is not a technique of resolving private differences; it is a form of political expression and political association.” Those are protected by the First Amendment. Content and speaker-based restrictions on political speech are subject to strict judicial scrutiny.

A similar fight played out in Washington state when a local resident started a campaign to recall Pierce County Treasurer

Dale Washam.

When the Institute for Justice took up the case, the state Public Disclosure Commission wheeled on IJ and claimed the group’s work was an in-kind contribution. The Institute for Justice filed suit and in 2015 won on summary judgment.

As for Texas, it’s hard to imagine a compelling interest to justify government limiting public-interest advocacy. Let’s hope the Ethics Commission reconsiders its position.

Wonder Land: Florida Governor Ron DeSantis has noted a historic shift that no political outrage will change. Images: AP/Zuma Press/AFP via Getty Images Composite: Mark Kelly

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