Some Public Business Remains in the Shadows

This is one in a series of occasional stories about ethics and transparency in the part-time Texas Legislature.

For all of the public love politicians give to transparency these days, the state keeps a lot of information out of sight, or in places where it is really inconvenient to view.

Their personal financial statements, for instance, don’t have a specific online residence, and because of filing deadlines, are often way out of date. Lawmakers file the forms on paper. Anyone who wants to peek must visit the Texas Ethics Commission in Austin or send a request and wait by the mailbox. (The Texas Tribune has requested, paid for and posted the disclosures online, but the state hasn't done so.)

It’s translucent, but not transparent.

Money spent during the last week of a campaign doesn’t have to be disclosed until after the election. The last report is due eight days before Election Day, and the next one isn’t due for weeks. Campaigns have to report donations during that last week, but not spending. That means when voters cast ballots, they aren’t aware of Hail Mary advertising buys and late get-out-the-vote efforts.

It’s one of those “man on the moon” questions, as in: Why is it they can put a man on the moon, but they can’t file instant — or daily — reports on campaign spending?

It’s opaque, unless you count historical access as transparency. Information that isn’t available to the decision-makers before they go to the polls hardly improves their decisions.

Lawyers, for perfectly good reasons, don’t have to disclose their clients’ names; those clients, after all, have a right to hire their lawyers without telling everybody else they’ve done so. But on the public official side, that creates a loophole big enough for a paddy wagon; a legislator-lawyer doesn’t have to tell the rest of us when a bit of official business might benefit one of his or her unnamed clients.

Consultants don’t have the attorney-client privilege that lawyers do, but lawmakers can — and do — list consultant as their occupation without telling us whom they’re being paid to advise.

That describes the swap for a citizen Legislature. If legislators are supposed to have real jobs, they’ll run into conflicts. But they can run into conflicts even when they don’t have real jobs — or did you forget about the full-time Congress?

Disclosure is supposed to be the remedy. It would be one thing for a legislator to vote in his or her own interests in the dark, and another to do so where voters, future opponents, reporters and other lawmakers can see what he or she has done. At some point in every session, a senator or state representative will jump up and vote for something like that — whether it’s Rep. Gary Elkins, R-Jersey Village, debating a payday lending bill in 2011 while pointing to his ownership of a payday lending operation as proof of his expertise — or every civil lawyer in the Legislature voting on tort reform bills that change the laws they work with in their real jobs.

Formal recusals don’t happen often. Rep. Donna Howard, D-Austin, recused herself in 2011 when the House was deciding whether she or her opponent had won a close election in 2010. Speaker Joe Straus, Republican of San Antonio, entered a statement in the House Journal in 2009 saying he would recuse on “matters related to the expansion of gambling at parimutuel racetracks in Texas” — a business his family was involved in. As a representative in 2003, Gene Seaman, R-Corpus Christi, recused himself from voting on a regional tax that had a direct impact on several of his properties.

That's it for the official record — what's recorded in the House and Senate journals — since 2003. Sometimes, members “vote a white light” — which means they’re present but not voting yes or no — without saying why. Votes like that and votes that raise eyebrows are a lot more common than formal abstentions.

This is allowed: voting on a bill that affects everyone in your industry — doctors on health care, lawyers on law, farmers on agriculture, etc. This is not allowed: voting on a bill that benefits a lawmaker’s own business in particular.

It’s a fine distinction, but an important one, separating personal interests from broader industry or community interests. And it doesn’t work if there’s no disclosure to the rest of us — if the decision-makers are separated from information that would be useful in their decisions.

That connection, or the lack of it, is why transparency is so popular.