Liveblog: Open Government at The Texas Tribune Festival

Getting things rolling in the Open Government track. First up — a question for Clancy. Does having a part time legislative body set us up for ethics problems? Clancy said it is a feature of our part-time legislature to be professionals in other fields. But with nearly a third of our lawmakers working professional as lawyers, there must be a balance.

MacLaggan asks Capriglione if he thinks lawmakers should be paid more. He says he believes lawmakers take this job for reasons other than money. Leach agrees it's not about the money.

Wolens disagrees with the premise of the question. He said the focus should not just on requiring disclosure, but on banning inappropriate conduct.

Delco said it is kind of hypocritical to say a lawmaker should not be paid anything. The lawmakers are giving up their time to serve the state, and should be compensated. Delco said that for ordinary people, they have responsibilities outside their legislative duties.

"It's a J-O-B job."

Wolens said there is an easy answer to handling conflicts with voting on budget bills your clients may benefit from — just do not vote on the budget bills. Delco asks about the people in a lawmaker's district that do not have that conflict, who now lose a lawmaker representing them due to stepping out of votes due to conflicts.

Capriglione discussing his failed disclosure bill from last session.

"[Disclosure] always felt like a shield." MacLaggan points out that Sen. Wendy Davis was his co-sponsor for the bill in the Senate.

"I did not ask her to do that."

Wolens said that it is very difficult to pass an effective ethics bill as a standalone. When you have a big bill, it gets easier.

Wolens said if you are going to give X amount of money to a consultant, you should have to break it down. How much went to the printer? How much to the staff?

Clancy, speaking to Capriglione's bill, says lawmakers could be required to list all individuals and companies that could be benefitted from contract.

MacLaggan asks if there is any way to improve the disclosure process. Leach believes personal financial statements should be made available online by the state. (The Texas Tribune does it.)

Wolens brings up the disclosure of stock shares on statements. What do the ranges mean? Capriglione agrees. What if you are one share over or under the disclosure limit?

Delco said this sounds like a lot of "lawyer talk." Delco said she is thinking of conflicts when you just want teachers to be paid more.

MacLaggan asks if Delco thinks disclosures are getting too strict. She says yes. Delco says she wants the language to be as clear as possible and cover a range of issues, and not focus on "nitpicking" on the number of shares a lawmaker may own.

Next question by MacLaggan — do you think the laws are too harsh?

Leach said he's not a lawmaker to be a lawyer, he is there to do the right thing. If a lawmaker gets frustrated trying to fill out a personal financial statement, they are going to be distracted from working through complicated bills where there may be potential conflicts.

Wolens brings up the seeking of advisory opinions of the Texas Ethics Commission. Leach said it is not always that simple — the commission may provide guidance, but you will not get something in writing. There still could be consequences.

MacLaggan asks Delco about her frustrations with the disclosure system as the person enforcing those laws.

"I think my frustration is with what gets to be significant and what is not significant," said Delco.

She said she is concerned about the individuals that aren't lawyers, and get weighed down by the "minutia."

"The minutia gets important," said Wolens.

"Yeah to you," said Delco.

Clancy talking about the lobbyist disclosure process. If enough lobbyists get together to make a joint expenditure, they can stay under the individual disclosure limit. Clancy said nearly 90 percent of lobbyist disclosures come over as joint expenditures.

"It gets to be trivial, but then it starts to get terrifying," said Delco. A lawmaker goes to dinner, and someone comes up and says, "don't worry, that's taken care of."

Questions starting from the audience — question about school board candidates and disclosures. Wolens said they passed a bill in 2003 that required school board candidates to file the same kind of financial disclosures, but it was removed in an amendment during the special session.

Many school districts are very lax on disclosures, said Wolens, in addition to adherence to open meetings laws. Leach asks Clancy, what would it take to get school districts disclosures to be handled by the Texas Ethics Commission?

"A bill by the Legislature," said Clancy.

Next question from audience — just how many lawmakers have served as convicted felons? Wolens said he believes there was one in the 80s, convicted for cattle rustling. He or she continued serving.

Audience member asking about access to the disclosure data. Clancy said the data is there for downloading and manipulation. He said they could do something like listing the top 10 transportation spenders, but that is not the commission's job as an impartial agency.

Final audience question — is there a concern that only individuals well-off enough are able to run?

Wolens agrees with the question's premise. A lawmaker has to not work for five months during session, work in the interim for a year and a half, then run for election again. Leach points out that lawmakers do get paid $150 a day during session.

"They do?" said Delco.

First question by Aaronson – how do you feel about Abbott's ruling on withholding Tier II data from open records? Houston is asked how he would have ruled if he was the attorney general.

Houston said when there are statues that specifically say that those records should be open, and another, more vague one is used to close them, that is wrong.

Larson is currently representing the Dallas Morning News in a suit to re-open the Tier II records to the public.

Larson said the problem with dangerous chemicals is the same as with things like smallpox. You can use smallpox to create vaccines, but it is also possible to do harm with it. It's similar to ammonium nitrate. Before the accident in West, you could still get to the chemical records. It was after the incident that now we cannot know.

Brown is asked for her perspective as a journalist interested in these records, and talks about a time in Bryan when citizens were asked to evacuate due to a chemical incident. Brown said that even the firefighters did not know what chemicals were in the building.

Schloss discussing her policy with handling open records at the General Land Office. She said she does not care about why a requester wants some document — it is none of her business. Schloss said she releases every thing she is allowed to release.

Aaronson asking Sharphorn about the University of Texas System's policy of disclosing all requests on the System's web site, but stopping short of making the responsive documents available as well.

Sharporn said there have been some complaints from reporters concerned about other reporters being tipped off to a story they are pursuing. Some times there are students who inappropriately use the form to seek student records, and the system does not want those documents to become available to the public due to their error.

Brown asked about the Bryan-College Station Eagle's interactions with Texas A&M. Many of the requests end up getting rerouted to the attorney general.

Houston asked if the open records process is being used as a political tool. Houston said there should be more enforcement of the open records law in smaller municipalities, making it clearer what is public and what should be sent on to the requester.

Schloss said she does not give special preference to reporters. She is a one person shop. If someone wants something that she knows she can get that day, she'll get to it that day. Typically takes three to five days to fulfill a request. Schloss said it is difficult when people file requests that are leading or exploratory and do not believe it when they are told nothing exists.

Aaronson asks about corporations that collect records and re-sell them to the public. Schloss said that convenience always has a price. Those records are not official. If an individual wants official records, they have to go to the agency.

Larsen speaking to the cost issue. When an agency says they can give all the information that they can give, what does that mean? It is up to the governmental body to decide what that means. When an agency asks for $13,000 to fulfill a request, that's essentially a denial of a request.

Aarson asks if the outsourcing of records to third-parties is leading to records being stored in proprietary systems, hindering their release.

Schloss said that when an agency hires a company, they become an agent of that agency and should be held to the same laws as the agency.

Larsen said earlier he has historically had considerable trouble getting information out of the University of Texas System. Sharphorn given a chance to respond.

"Next time you have a request, let me know and I'll make sure it is taken care of," said Sharphorn.

Next question — how has the internet changed expectations of the public? How do you get at the raw data?

Schloss said the General Land Office does well, but many of the legal documents available are only available as PDFs. Requesters complain about the scans, but Schloss asks, "How do you put up a document from 1847 in raw form?"

Larsen talking about the tendency for government bodies to not want to share information on what data they have. The attorney general's office has considered a record layout for a database as a piece of software, and agencies use that to deny requests.

"I know your opponent is reluctant to speak to you, so I feel free to put words in his mouth," said Larsen, stepping up to a question directed to Houston.

Continued discussion of when fear is used as the reason to withhold records. Primary example given is the withholding of the governor's travel records.

Houston said when there is real fear about the disclosure of some piece of information, it should not be disclosed. But when that fear turns into subterfuge it is going against the law.

Opening up for audience questions. First one — CPA from Boerne, TX calls trying to get data bout of the local school district like "spitting into the wind." How could open records be made more available to the "little guy?"

Schloss said when she was at the attorney general she got many questions like that from citizens. She would also get it from the other side. "We have a trouble maker here, asking for records again..." She said it really starts at the top. You have to elect people that believe they are serving people, and not the other way around.

Sharphorn said the UT System has streamlined the submission process, making it easier to submit request. He recommends government agencies make it easier to get requests sent in.

Larsen said he thinks the answer to the question is "not much."

Larsen points out that the attorney general's office is not a court — they can not determine issues of fact. The only way to fix that is better leadership at the office of the attorney general.

"Governmental bodies love this system, they like the way it's set up."

Schloss said that people never speak up about getting the records they want. She said you only hear the people complaining about not getting what they need.

Houston asked by audience member what sets him apart from his opponent.

Houston said his opponent is "not even here today." He said if you are hidden during the campaign and do not debate, that reflects on how they will feel about open government in office.

Ramsey starts off the conversation by quoting Jon Oliver, 'if you want to do something evil, hide it in something boring.' Starts off by asking state Rep. Jim Pitts, House Appropriations Chair, if the budget is public enough.

Pitts, says yes, the budget, the process is very transparent. All of the information is available online for the public to seek out.

Ramsey counters, "Are we transparent, but not understandable?"

DeLuna Castro says the choices being made leading up to the budget aren't apparent from the final documents, which are posted online. She adds that compared to other states the Texas budget is transparent, but that doesn't mean the average person can make head-or-tail of it.

Hegar says that Texas needs to do a better job of explaining the drill-down of the budget to the public, and putting the information out in bite-size, accessible pieces. He agrees that there is a lot of information out there, and the question is can you see it and ascertain it.

Howard says the state could do a better job of getting information out. Even for lawmakers, accessing accurate information can be hard. She explains in the 2011 session, lawmakers cut overall financing for public education, but they actually put more state general revenue towards public education. That created competing narratives. To be able to talk to the public with accurate information, she had to go back-and-forth several times with budget experts and figure out how to ask the right question to get the right, accurate information. 

Simpson says one of his problems with the budget is the "consolidation bill," which he calls the "Wizard of Oz" bill. He says the state tells people we're going to tax them for one thing, and then use the dedicated spending for other things. "We're basically being dishonest with the budet," he said, because we have $4 billion in dedicated funds that we're using for other purposes.

Howard says she agrees with Simpson's statements on the spending of dedicated funds, but "it's the process we're stuck with right now, because it's been accumulating over a long period of time." She adds that the $38 million being used to send state troopers down to the border hadn't been "spent," but it was part of the $4.7 billion used to certify the budget. 

Pitts disagrees and says the budget process is very transparent. He notes that the state provides documents showing how budget negotiations between the House and Senate evolve side-by-side, every single conference committee is in public, and every decision that's made is in public.

DeLuna Castro says there's a difference between making the decisions public, and the private discussions between lawmakers public. 

Simpsons says we have some good things in place, but we're not living according to our standards. "We look good on the outside, inside there's corruption," he says, commenting on the private conversations that go on between lawmakers.

Hegar says you have to make sure you're explaining to the best of your ability how the budget evolves from one step to the next, because the budget is huge. 

DeLuna Castro says the way budget decisions are announced in public makes it difficult for people to actually understand what's in the budget. There's an earlier stage when not all information is available. For example, she says school districts didn't know exactly how the 2011 budget cuts would effect them until Memorial Day — after it was too late to do anything about it. 

Ramsey asks, just hypothetically, if a Governor is indicted, should the public be able to see exactly what money was spent on exactly which lawyers at what time? Should the budget be transparent down to how each dollar spent?

Pitts explains information such as that can't necessarily accounted for. There wasn't a "Governor's defense fund," he jokes, and although that type of information is available in the Governor's office's financial records, it wasn't predicted in the budget negotiations. 

Howard, going back to the issue of transparency in the negotiation process, says the dilemma is where do you draw the line between things, because you want to have the most information out as possible, but you also need to get things done. Where do you draw the line in a responsible way? It's a lot to ask of voters to do all the homework on everything, she says, and that's why voters elect people to do the homework and represent their interests in the budget negotiations.

Ramsey says "a budget like a business plan is a piece of speculative fiction," and the supplemental bill can be an important factor. Pitts agrees, and says they don't have a crystal ball. The supplemental funding bill can be really important for covering education, and health care costs that cannot be accurately predicted, he says.

Question from Ramsey, how would you change the process?

Pitts says members need to just ask for more information and be more involved in the process, even if they aren't on the appropriations committee. "It's real easy to sit back in your chair and say this isn't transparent when you can help make it transparent," he said.

DeLuna Castro says the state should just not let it be complicated. The mark-up is done in ways that people just look at sections of the budget, like education or health and human services, and it's difficult to look at comprehensively. People don't always understand at the beginning how it's being written, and what the effects are on local governments.

Hegar says lawmakers and the public both need to be demanding of openness, and ask the right questions from day one. As technology changes, he says we need to make sure we're explaining the information in the right way to members and the public, such as with 'how-to' videos. 

Howard agrees we can do a much better job of explaining to members and the public. She mentions the video Rep. Lois Kolkhorst made last session explaining the Medicaid expansion budget issue. She says lawmakers need to have the right information, so that when they debate these issues they're speaking about the same, accurate information.

Simpson says he thinks the state has some good rules, but we're not using them. As a member, he said he couldn't access the budget until he was on the floor, making points of order. He says discussions should be in public, and that members should have more access to the budget before they're being asked to vote on it.

Question on how to make the budget more engaging and exciting for the public. Pitts says there were 400 hours of public meetings in appropriations for the last cycle, and it's difficult to make that entirely accessible. "It's exciting for me, sorry it wasn't exciting for you," he tells audience member.

Audience member asks about dedicated financing for recycling not being appropriated. Pitts says they cannot appropriate $5 billion at once, but they did appropriate $1 billion of that money last session. He thinks it'll take five sessions to appropriate and spend that specific money.

Levinthal starts with political messaging "which is really at the heart of this dark money" thing. He asks for a short answer on the state of play from each panelist.

Grossman says dark money is only 4% to 5% of campaign expenditures. He says the problem is a complicated legal environment that has made it very difficult for small organizations that weren't intended to be affected. 

Keating, who says he worked in tax law for years, says campaign finance laws make the tax code look reasonable.

Allison says a lot of nonprofits are spending money that is never on the radar. "You can only find it out by going to local television and radio stations." 

I think if you're spending on elections, you ought to disclose. 

Keating calls that "absolutely standardless." He says Allison is talking about any issue that's on TV or radio. Allison says only if it mentions a candidate. Keating responds that members of Congress are candidates and that this idea would force disclosures in issue ads that are not  about elections. 

Allison says there is a huge amount of influence done through these ads that never shows up in disclosures. 

Now the questions turn to the laws that try to describe an organization's "principal purpose" and regulating its disclosures accordingly. Untermeyer says the Texas standard is not "the" primary purpose of an entity, but "a" primary purpose. A proposed rule would put it at 20 percent of a group's work, which he calls "defensible." He expects that to be resolved, eventually, in court. 

Cook, the only legislator on the panel: "Either you think that we should have transparency in the election process, or we shouldn't." He calls dark money a corrupting influence. "If we don't address dark money... down the road, there will be no transparency." 

Grossman, asked why dark money is not corrosive to the process, says contributions to campaigns are subject to disclosure. He says independent expenditures, which aren't coordinated with the campaigns, are a different animal that cannot be subjected to those disclosure laws without impinging on free speech rights. 

He says the current campaign finance regime already takes many of these situations into account. 

Keating says that a lot of people just take things they don't like in politics and define it as dark money. "There is no dark money on spending," he says. If someone gives to an organization for a particular ad, it should be disclosed. If they give to the organization generally (and it turns out that some of that money makes it into the ad budget), they shouldn't have to disclose. 

Cook says that if nothing is done about dark money, the state will see a lot more 501c4 groups set up to protect people from having to disclose their political contributions.

Keating says a better argument would be that maybe the law is not doing everything it should. 

Grossman says you don't have to go back very far to find cases where people have faced retribution for their political contributions. Civil rights is one. Campaigns around Scott Walker's recall election in Wisconsin is another.

Untermeyer says that the bulk of campaigning goes on without people needing any protection from retribution. Says most of this is something that the rest of the public, the voting public, needs to know. We feel (at Texas Ethics Commission) that on the whole, disclosure is a healthy thing. 

Who is going to do something about this if Democrats and Republicans won't — a reference to the state's failure to pass a dark money regulation in the 2013 session. Cook says he hopes the state will fix it. And he adds that this is not really about small donors in Texas' case, but of big donors trying to prevail in civic affairs.

Allison says Democrats benefit from dark money as much as Republicans do. He predicts that it will take a big political scandal to effect change. 

Grossman says you tend to learn about these things on the front page of the newspaper. "It's no secret," he says. "It's a canard that people like to bring up." 

Untermeyer says he is not aware of any foreign money coming into Texas races. Cook says he isn't either, but reiterates his opinion that if disclosure isn't required, it opens the door for bad things to happen. 

Keating says the laws are in place to prevent foreign contributions to American (or Texan) campaigns. And he addresses Cook's point about little donors, saying he doesn't know about the Texas laws, but that in other states, the dark money regulations get down to donors as small as $9 per month.

Allison: If you intend to influence elections, you ought to have to disclose.

Untermeyer says this is truly a legislative issue that probably shouldn't be left to appointed people (like him) in regulatory agencies. 

Cook says he will continue to work on this issue "as long as I live and breathe and serve in the Texas Legislature."

Keating says nobody in the room would have been able to figure out how to comply with the bill approved by the Legislature in 2013 and vetoed by the governor. 

First audience question is about the influence of big money on politics and calls dark money a red herring blocking a conversation about public financing of elections. Allison says, speaking for himself and not Sunlight, that he's not sure it's a panacea. "Money will still find its way into the system." 

And we are done!