BILL ANALYSIS C.S.S.B. 94 By: Ellis State Affairs 4-28-95 Committee Report (Substituted) BACKGROUND Currently, Texas judges, with the exception of municipal judges, are chosen by election on a partisan ballot. Texas' method of electing certain judges has been subjected to repeated challenges under the federal Voting Rights Act. The Texas judicial system has been criticized for the influence of campaign contributions on the elections and the lack of minority participation in the judiciary. A bipartisan work group reviewed ideas for reforming Texas' judicial selection, including nonpartisan elections, alternative voting systems, appointment systems, subdistricts and campaign finance reform. PURPOSE As proposed, C.S.S.B. 94 regulates political contributions, expenditures and advertising in connection with certain judicial candidates and officeholders, and sets forth guidelines for personal financial statements filed by certain judicial officeholders. Provides civil and criminal penalties. RULEMAKING AUTHORITY It is the committee's opinion that rulemaking authority is granted to the Texas Ethics Commission in SECTION 1 (Sections 253.172(d) and 253.161(f), Election Code), SECTION 6 (Section 255.008(d)(1), Election Code), and SECTION 10 (Section 255.008(d), Election Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 253, Election Code, by adding Subchapter F, as follows: SUBCHAPTER F. JUDICIAL CAMPAIGN FAIRNESS ACT Sec. 253.151. APPLICABILITY OF SUBCHAPTER. Provides that this subchapter applies only to a political contribution or political expenditure in connection with certain judicial offices. Sec. 253.152. DEFINITIONS. Defines "complying candidate," "complying officeholder," "in connection with an election," "judicial district," "noncomplying candidate," and "statewide judicial office." Sec. 253.153. CONTRIBUTION PROHIBITED EXCEPT DURING ELECTION PERIOD. (a) Sets forth time periods during which a judicial candidate or officeholder, a specific-purpose committee for supporting or opposing a judicial candidate, or a specific-purpose committee for assisting a judicial officeholder (specific-purpose committee) may not knowingly accept a political contribution. (b) Provides that Subsection (a)(2) does not apply to a political contribution what was made and accepted with the intent that it be used to defray expenses incurred in connection with an election contest. (c) Authorizes a judicial candidate who does not have an opponent whose name will appear on the ballot or a specific-purpose committee for supporting such a candidate to accept a political contribution after another person files a declaration of write-in candidacy opposing the candidate. (d) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount of the political contributions accepted in violation of this section. Sec. 253.154. WRITE-IN CANDIDACY. (a) Prohibits a write-in candidate for judicial office or a specific-purpose committee for supporting a write-in candidate for judicial office from knowingly accepting a political contribution before the candidate files a declaration of write-in candidacy. (b) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount of the political contributions accepted in violation of this section. Sec. 253.155. CONTRIBUTION LIMITS. (a) Prohibits a judicial candidate, except as provided by Subsection (c), from accepting political contributions from a person that in the aggregate exceed the limits prescribed by Subsection (b) in connection with each election in which the candidate is involved. (b) Sets forth contribution limits. (c) Provides that this section does not apply to a political contribution made by a general-purpose committee. (d) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount of the political contributions accepted in violation of this section. Sec. 253.156. CONTRIBUTION TO CERTAIN COMMITTEES CONSIDERED CONTRIBUTION TO CANDIDATE. Provides that a contribution to a specific-purpose committee for supporting a judicial candidate, opposing the candidate's opponent, or assisting the candidate as an officeholder is considered a contribution to the candidate. Sec. 253.157. LIMIT ON CONTRIBUTION BY MEMBER OR GENERAL-PURPOSE COMMITTEE OF LAW FIRM. (a) Prohibits a judicial candidate from accepting a political contribution in excess of $50 from a person if: (1) the person is a member of a law firm or a general-purpose committee established or controlled by a law firm; and (2) the contribution, when aggregated with all political contributions accepted by the candidate from other members of the law firm or from a general-purpose committee established or controlled by the law firm in connection with the election, would exceed six times the applicable contribution limit under Section 253.155. (b) Requires a candidate who receives a political contribution that violates Subsection (a) to return the contribution by a certain deadline. (c) Provides that a candidate who violates this section is liable for a civil penalty not to exceed three times the total amount of political contributions accepted from members of or general-purpose committees established or controlled by the law firm in connection with the election. (d) Provides that a general-purpose committee is established or controlled by a law firm if the committee is established or controlled by members of the law firm. (e) Defines "law firm" and "member." Sec. 253.158. AGGREGATE LIMIT ON CONTRIBUTIONS FROM AND DIRECT CAMPAIGN EXPENDITURES BY GENERAL-PURPOSE COMMITTEE. (a) Prohibits a judicial candidate or officeholder or a specific-purpose committee from accepting a political contribution from a general-purpose committee that, when aggregated with each other political contribution from a general-purpose committee in connection with an election, exceeds 15 percent of the applicable limit on expenditures prescribed by Section 253.166, regardless of whether the limit on expenditures is suspended. (b) Requires a candidate or officeholder who receives a political contribution that violates Subsection (a) to return the contribution to the contributor by a certain deadline. (c) Establishes criteria under which an expenditure by a general-purpose committee is a contribution. (d) Provides that this section does not apply to a political expenditure by the principal political committee of the state executive committee or a county executive committee of a political party that complies with Section 253.169(b). (e) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount by which the political contributions accepted in violation of this section exceed the applicable limit prescribed by Subsection (a). Sec. 253.159. USE OF CONTRIBUTION FROM NONJUDICIAL OFFICE PROHIBITED. (a) Sets forth the criteria under which a judicial candidate, officeholder, or specific-purpose committee is prohibited from using a political contribution to make a campaign or officeholder expenditure for judicial office. (b) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount of political contributions used in violation of this section. Sec. 253.160. LIMIT ON REIMBURSEMENT OF PERSONAL FUNDS. (a) Prohibits a judicial candidate or officeholder who makes political expenditures from personal funds from reimbursing the personal funds from political contributions in certain aggregate amounts for each election in which the person's name appears on the ballot. (b) Authorizes a person who is both a candidate and an officeholder to reimburse personal funds only in one capacity. (c) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount by which the reimbursement made in violation of this section exceeds the applicable limit prescribed by Subsection (a). Sec. 253.161. NOTICE REQUIRED FOR CERTAIN POLITICAL EXPENDITURES. (a) Prohibits a person, other than a candidate, officeholder, or the principal political committee of the state or county executive committee of a political party, from making political expenditures that exceed a specific amount for the purpose of supporting, opposing, or assisting a candidate other than a statewide judicial office without written declaration filed with the appropriate authority. (b) Prohibits a person, other than a candidate, officeholder, or the principal political committee of the state or county executive committee of a political party, from making political expenditures that exceed a specific amount for the purpose of supporting, opposing, or assisting a candidate for statewide judicial office without written declaration filed with the commission. (c) Establishes deadlines under which a declaration must be filed. (d) Requires a declaration received under Subsection (a) or (b) to be filed with the records of each appropriate judicial candidate or officeholder. Requires the declaration, if the person intends to make only political expenditures opposing a judicial candidate, to be filed with the records of each candidate for the office. (e) Authorizes an expenditure made by a political committee or other association that consists only of costs incurred in contacting the committee's or association's membership to be made without the declaration required by Subsection (a) or (b). (f) Requires a person who makes a political expenditure benefitting more than one judicial candidate or officeholder to, in accordance with rules adopted by the commission, allocate a portion of the expenditure in proportion to the benefit. Sets forth beneficiaries of political expenditures for purposes of this subsection. (g) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount of the political expenditures made in violation of this section. Sec. 253.162. VOLUNTARY COMPLIANCE. (a) Sets forth two declarations required to be filed when a person becomes a candidate for a judicial office. (b) Establishes the candidates to which the contribution and reimbursement limits prescribed by this subchapter apply. (c) Prohibits a judicial candidate from knowingly accepting a campaign contribution, or making or authorizing a campaign expenditure before a declaration under Subsection (a) is filed. (d) Provides that a person who violates Subsection (c) is liable for a civil penalty not to exceed three times the amount of the political contributions or political expenditures made in violation of this section. Sec. 253.163. EFFECT OF NONCOMPLYING CANDIDATE. (a) Establishes criteria under which a complying candidate or specific-purpose committee supporting the candidate is not required to comply with the prescribed limits on contributions, expenditures, and the reimbursement and use of personal funds. (b) Requires the executive director of the commission or the county clerk to issue an order suspending the financial limits for a specific office no later than 10 days after the director or county clerk determines a candidate has filed the declaration of intent to exceed the limits or a complying candidate has exceeded the prescribed limit. (c) Authorizes the executive director or the county clerk to issue an order under Subsection (b) only in connection with an office for which a candidate files a campaign treasurer appointment. Requires a county clerk who issues an order under Subsection (b) to deliver a copy of the order to the commission. Sec. 253.164. BENEFIT TO COMPLYING CANDIDATE. Entitles a complying candidate to state on political advertising that the candidate complies with the Judicial Campaign Fairness Act, regardless of whether the limits on contributions, expenditures and the reimbursement and use of personal funds are later suspended. Provides that a noncomplying candidate is not entitled to this benefit. Sec. 253.165. CERTIFICATION OF POPULATION; NOTICE OF CONTRIBUTION AND EXPENDITURE LIMITS. (a) Sets forth requirements of the secretary of state. (b) Requires the commission or county clerk, based on the certification of population, to deliver to each candidate, within a specific time period, written notice of the contribution and expenditure limits applicable to the office sought. Sec. 253.166. EXPENDITURE LIMITS. Sets forth limits for political expenditures for a complying candidate. Provides that a complying candidate who violates this section is liable for a civil penalty not to exceed three times the amount by which the political expenditures made in violation of this section exceeds the applicable limit prescribed by Subsection (a). Sec. 253.167. EXPENDITURE BY CERTAIN COMMITTEES CONSIDERED EXPENDITURE BY CANDIDATE. (a) Provides that an expenditure by a specific-purpose committee supporting, opposing, or assisting a candidate is considered an expenditure by the candidate unless the candidate files an affidavit disclaiming political affiliation with the appropriate authority. (b) Provides that this section applies only to an expenditure as to which the candidate or officeholder receives notice as required by Section 254.128. (c) Requires an affidavit under this section to be filed with the next report the candidate or officeholder is required to file under Chapter 254 following receipt of the notice required by Section 254.128. Sec. 253.168. EFFECT OF CERTAIN POLITICAL EXPENDITURES. (a) Provides that a complying candidate for an office other than a statewide judicial office or a specific-purpose committee supporting such a candidate is not required to comply with this subchapter's financial limits if a person other than the candidate's opponent or opposing political party makes political expenditures against the candidate that exceed $5,000. (b) Provides that a complying candidate for a statewide judicial office or a specific-purpose committee supporting such a candidate is not required to comply with this subchapter's financial limits if a person other than the candidate's opponent or opposing political party makes political expenditures against the candidate that exceed $25,000. (c) Requires the executive director of the commission or the county clerk to issue an order suspending the financial limits for a specific office no later than 10 days after the director or county clerk determines a candidate has filed the declaration of intent to exceed expenditure limits or a political expenditure that exceeds the limit has been made. (d) Authorizes the executive director or county clerk to issue an order under Subsection (c) only in connection with an office for which a candidate files a campaign treasurer appointment. (e) Provides that an expenditure made by a political committee or other association that consists only of costs incurred in contacting the committee's or association's membership does not count towards the prescribed limit. Sec. 253.169. CONTRIBUTION FROM OR DIRECT CAMPAIGN EXPENDITURE BY POLITICAL PARTY. (a) Provides that, except as provided by Subsection (b), a political contribution or a campaign expenditure made by the principal political committee of the state or county executive committee of a political party is considered to be a political expenditure. (b) Sets forth criteria for political expenditures to which Subsection (a) does not apply. Sec. 253.170. RESTRICTION ON EXCEEDING EXPENDITURE LIMITS. (a) Prohibits a candidate who files a declaration of compliance under Section 253.162(a)(1) who later files a declaration of intent to exceed the limits on expenditures and the use of personal funds under Section 253.162(a)(2) or a specific-purpose committee from making a political expenditure that causes the person to exceed the prescribed applicable limit before 60 days after the candidate files a declaration of intent to exceed the limits. (b) Provides that a person who violates this section is liable for a civil penalty not to exceed three times the amount of political expenditures made in violation of this section. Sec. 253.171. LIMIT ON USE OF PERSONAL FUNDS. (a) Prohibits a complying candidate from making, from the candidate's personal funds, political contributions or expenditures in connection with the person's own candidacy that exceed, for each election in which the candidate is involved, the applicable limit on reimbursement of personal funds prescribed by Section 253.160. (b) Authorizes a complying candidate to reimburse personal funds only as provided by Section 253.160. (c) Provides that a person who violates this section commits a Class A misdemeanor. Sec. 253.172. JUDICIAL CAMPAIGN FAIRNESS FUND. (a)-(b) Provides that the judicial campaign fairness fund is an account in the general revenue fund consisting of recovered penalties and gifts or grants received by the commission. (c) Authorizes the fund to be used only for voter education projects relating to judicial campaigns; and payment of costs incurred in imposing civil penalties under this subchapter. (d) Requires the fund to be permitted to accumulate until the balance is sufficient to permit the publication of a voter's guide. Requires the commission to implement this subsection and adopt rules under which a candidate must provide information to the commission for inclusion in the voter's guide. Requires the candidate, in providing the information, to comply with applicable provisions of the Code of Judicial Conduct. Requires the voter's guide to indicate whether each candidate is a complying candidate or noncomplying candidate. Provides that the listing of a noncomplying candidate may not include any information other than the candidates name and must include a statement that the candidate is not entitled to have complete information included in the guide. (e) Authorizes the commission to accept gifts and grants for the purposes described by Subsections (c)(1) and (d). Requires funds received under this subsection to be deposited to the credit of the judicial campaign fairness fund. (f) Provides that the judicial campaign fairness fund is exempt from Sections 403.094 and 403.095, Government Code. Sec. 253.173. CIVIL PENALTY. (a) Authorizes the commission to impose a civil penalty against a person only after a formal hearing as provided by Chapter 571E, Government Code. (b) Sets forth provisions on which the commission shall base the amount of the penalty. (c) Requires a penalty collected under this section to be deposited to the credit of the judicial campaign fairness fund. SECTION 2. Amends Sections 253.003, 253.004, and 253.005, Election Code, to provide that those sections do not apply to a political contribution made or accepted in violation of Subchapter F. SECTION 3. Amends Chapter 254C, Election Code, by adding Section 254.0611, as follows: Sec. 254.0611. ADDITIONAL CONTENTS OF REPORTS BY CERTAIN JUDICIAL CANDIDATES. Sets forth the required content of each report. Defines "law firm" and "member." SECTION 4. Amends Chapter 254D, Election Code, by adding Section 254.0911, as follows: Sec. 254.0911. ADDITIONAL CONTENTS OF REPORTS BY CERTAIN JUDICIAL OFFICEHOLDERS. Requires each report by a holder of a judicial office to contain certain information. SECTION 5. Amends Chapter 254E, Election Code, by adding Section 254.1211, as follows: Sec. 254.1211. ADDITIONAL CONTENTS OF REPORTS OF CERTAIN COMMITTEES. Sets forth the requirements for each report by a specific-purpose committee which supports or opposes candidates or assists a holder of a judicial office. SECTION 6. Amends Chapter 255, Election Code, by adding Section 255.008, as follows: Sec. 255.008. DISCLOSURE ON POLITICAL ADVERTISING FOR JUDICIAL OFFICE. (a) Provides that this section applies only to a candidate or political committee covered by Chapter 253F. (b) Requires a specific statement to accompany any political advertising by a candidate or a specific-purpose committee that has declared compliance with the limits on expenditures. (c) Requires a specific statement to accompany any political advertising by a candidate or a specific-purpose committee that has declared an intention to exceed the limits on expenditures. (d) Requires the commission to adopt rules providing for requirements on disclosures in written, television, and radio political advertising. (e) Provides that a person who violates this section commits a Class B misdemeanor. SECTION 7. Amends Chapter 159, Local Government Code, by adding Subchapter C, as follows: SUBCHAPTER C. FINANCIAL DISCLOSURE BY COUNTY JUDICIAL OFFICERS Sec. 159.051. DEFINITION. Defines "county judicial officer." Sec. 159.052. FILING REQUIREMENT. Requires a county judicial officer or a candidate for office as a county judicial officer to file with the county clerk a financial statement that complies with Sections 572.022 and 572.023, Government Code. Sec. 159.053. FILING DATES; TIMELINESS OF FILING. (a) Requires a county judicial officer to file the financial statement required by this subchapter within the time prescribed by Section 572.026, Government Code. Requires a candidate for office as a county judicial officer to file the financial statement required by this subchapter within the time prescribed by Section 572.027, Government Code. (b) Provides that the timeliness of the filing is governed by Section 572.029, Government Code. Sec. 159.054. PREPARATION AND MAILING OF FORMS. (a) Authorizes the county clerk to design a form to be used for filing the financial statement required by this subchapter; or require that a form designed by the Texas Ethics Commission under Chapter 572, Government Code, be used for filing the financial statement. (b) Requires the county clerk to mail two copies of the form to each person required to file under this subchapter within the time prescribed by Section 572.030(c), Government Code. Sec. 159.055. DETERMINATION OF COMPLIANCE WITH SUBCHAPTER. (a) Requires the county clerk, no later than the second day after the applicable filing date, to be prepared to publicly state whether each person required to file a financial statement under this subchapter has filed a statement. (b) Requires a county clerk, if the clerk determines that a person has failed to file a financial statement in compliance with this subchapter, to send a written statement of the determination to the district attorney, criminal district attorney, or county attorney, as appropriate. Sec. 159.056. PUBLIC ACCESS TO STATEMENTS. (a) Provides that a financial statement filed under this subchapter is public record. Requires the county clerk to maintain the financial statements in a manner that is accessible to the public during regular business hours. (b) Requires the county clerk until the first anniversary of the date a financial statement is filed, each time a person requests to see the financial statement, to place in the file a statement of the person's name and address, whom the person represents and the date of the request. Requires the county clerk to maintain that statement in the file until the first anniversary of the date the financial statement is filed. (c) Provides that the county clerk, after the second anniversary of the date a person ceases to be a county judicial officer, may and on notification from the former officer shall destroy each financial statement filed by the officer. Sec. 159.057. FAILURE TO FILE; CRIMINAL PENALTY. (a) Provides that a person commits an offense if the person is a county judicial officer or a candidate for office as a county judicial officer; and knowingly fails to file a financial statement as required by this subchapter. (b) Provides that an offense under this section is a Class B misdemeanor. Sec. 159.058. FAILURE TO MAINTAIN FILED FINANCIAL STATEMENTS; CRIMINAL PENALTY. (a) Provides that a county clerk commits an offense if the county clerk knowingly refuses to accept for filing a financial statement under this subchapter; or fails to maintain a financial statement filed under this subchapter. (b) Provides that Subsection (a)(2) does not apply to a financial statement that is destroyed in compliance with Section 159.056(c). (c) Provides that an offense under this section is a Class A misdemeanor. SECTION 8. Amends Section 159.032(3), Local Government Code, to redefine "county judicial officer." SECTION 9. Provides that Sections 253.155, 253.156, 253.157, 253.161 through 253.169, and 253.171, Election Code, as added by this Act, are not severable, and none would have been enacted without the others. Provides that if any one of those provisions is held invalid, each of those provisions is invalid. SECTION 10. (a) Provides that if this Act receives the votes required by Section 39, Article III, Texas Constitution, for an effective date before the 91st day after the last day of the legislative session: (1) Sections 1, 2, 9, 11, and this section of this Act take effect immediately; and (2) Sections 3-5 of this Act take effect July 1, 1995. (b) Provides that if this Act does not receive the votes required by Section 39, Article III, Texas Constitution, for an effective date before the 91st day after the last day of the legislative session, Sections 1-5, 9, 11, and this section take effect September 1, 1995. (c) Sections 6-8 of this Act take effect September 1, 1995. (d) Provides that Chapter 253F, Election Code, as added by this Act, applies only to a political contribution accepted or political expenditure made on or after the effective date of Section 1 of this Act. Provides that a political contribution accepted or political expenditure made before the effective date of Section 1 of this Act is governed by the law effect on the date the contribution was accepted or the expenditure was made and is not aggregated with political contributions accepted or political expenditures made on or after that date. (e) Provides that Sections 254.0611, 254.0911, and 254.1211, Election Code, as added by this Act, apply to account balances, assets, and debts existing as of the effective date of Sections 3-5 of this Act and to the reporting of a political contribution accepted before the effective date of Sections 3-5 of this Act is governed by the law in effect on the date it was accepted. SECTION 11. (a) Requires the secretary of state, for purposes of Chapter 253F, Election Code, to execute certain deliveries no later than 15 days after the effective date of Section 1 of this Act. (b) Requires the Texas Ethics Commission or county clerk to deliver to each candidate for an office covered by Chapter 253F, Election Code, written notice of the contribution limits applicable to the office under Section 253.166, Election Code, within a specific time period. (c) Defines "judicial district." SECTION 12. Emergency clause.