Texas Legislature video ban in political ads temporarily blocked

posted on 5.23.2016

In a move that will likely make advertising for fall Texas House and Senate races more interesting, a Harris County state district judge has blocked a 21-year-old law barring the use of Texas Legislature produced audio and video in political advertising.

State District Judge Brent Gamble granted a temporary injunction to prevent enforcement of the law by the Texas Ethics Commission.

The move comes after a Tea Party candidate engaged in a bitter runoff with a lieutenant of House Speaker Joe Straus sued the Texas Ethics Commission over the law.

Briscoe Cain, a Harris Co. lawyer, is seeking to unseat state Rep. Wayne Smith, R-Baytown, in this week’s primary election runoff.

Cain nearly won the March primary but narrowly missed the 50 percent plus mark needed to clinch the race.

He has sought to use House audio and video in his political advertising.

The original law, passed in 1995 and amended in subsequent legislative sessions, prohibits the use of House or Senate produced audio and video of floor action or committee hearings in any political advertising.

It carries a fine of up to $5,000.

Legal experts have long thought the law was an unconstitutional because it infringed on First Amendment rights.

Some went as far as to term it an “incumbent protection act”.

The Ethics Commission had even recommended lawmakers repeal or narrow the law in the 2015 legislative session, a suggestion that was ignored.

Last month Attorney General Ken Paxton’s Office refused to represent the commission in the case, forcing it to hire outside counsel for last week’s hearing.

"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," Cain’s attorney Trey Trainor, told the San Antonio Express News.

Gamble will oversee a Dec. 5 trial on the constitutionality of the law.

In the meantime, Texas political candidates are free to use the taxpayer-funded House and Senate audio and video.

Political watchers expect campaigns will now be combing through hours of legislative video and audio to finding embarrassing recorded moments to share with voters through political advertising.

While the Texas Senate features no swing districts up for election this year, all 150 Texas House seats are up for election, including anywhere from five to 10 districts with incumbents viewed as vulnerable.

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.

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