The testimony below was submitted to the Texas Senate Committee on Local Government on September 13, 2022, by the Texas Conservative Coalition Research Institute (TCCRI).
Texas Conservative Coalition Research Institute
Senate Committee on Local Government
September 13, 2022
Regarding the following interim charge
Taxpayer Funded Lobbying: Study how governmental entities use public funds for political lobbying purposes. Examine what types of governmental entities use public funds for lobbying purposes and what level of transparency is available to the public. Make recommendations to protect taxpayers from paying for lobbyists who may not represent the taxpayers' interests.
Taxpayer funded lobbying is an increasingly objectionable practice in which local governments use taxpayer dollars to lobby the state government on a host of issues. Sometimes, those issues are directly relevant to the interests of local government. Oftentimes, local governments lobby the state on matters in which local governments have no direct interest. It is increasingly common for local governments to lobby the state on social issues, taking a position that large percentages of constituents disagree with. There is an understanding between taxpayers and their governments: taxes are necessary to fund the government’s functions. For those taxpayer dollars to be used to lobby for state-level policies instead of funding local-level interests betrays that understanding.
The use of taxpayer dollars by local government entities to lobby for policy changes in higher levels of government violates a basic rule under the First Amendment to the U.S. Constitution, which explicitly protects the right to free speech and association. A corollary to that right is the principle that the government may not force individuals or groups to support speech they disagree with. This doctrine (the “compelled speech” doctrine), was reaffirmed most recently by the U.S. Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, which held that it is unconstitutional to require non-union workers to pay union fees that the union uses to engage in collective bargaining, political activity, and other activities the non-union members disagree with. The Janus decision’s exposition of compelled speech is worth quoting at length:
When speech is compelled . . . individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.
Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” We have therefore recognized that a “ ‘significant impingement on First Amendment rights’ ” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.”
Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed.[i]
Taxpayer funded lobbying by government violates these principles, but the violation is more pernicious with respect to government than it is with respect to labor unions. While a person may not be compelled to join a union, government has the force of law behind it and extracts the money of citizens through taxation.
The Scope of Taxpayer Funded Lobbying in Texas
In 2022, the City of Austin, for example, directly employs 11 lobbyists.[ii] Similar numbers were found employed by Dallas (3), San Antonio (12), and Houston (5).[iii] Appraisal districts, water authorities, transit authorities, commissioners courts, and numerous other entities have paid representation at the Capitol. The following word searches within the 2022 lobby registrations have considerable matches:
“City of” (75)
Consider that 2022 is an interim year in which the Texas Legislature is not in session. The numerous government entities employing contract lobbyists continue to compensate those lobbyists with taxpayer funds when the passage of laws is not possible. But for a true window into the use of taxpayer funded lobbyists, compare 2022 registrations to 2021, a year in which the Texas Legislature convened:
“City of” (107)
The number of lobbyists utilized by governments during a legislative session year are higher across the board.
Working Against Taxpayer Interests
Government is well represented in the lobby, and local government entities use citizen money raised through taxation to lobby the legislature for and against policies that—in many cases—are directly contrary to the wishes of taxpayers. A great example of this was Senate Bill 2 (86R), which limited local tax revenue growth to 2.5 percent per year without voter approval. The list of witnesses against Senate Bill 2 was who’s who of mayors, city managers, tax collectors, and local government officials.[v] Witnesses in favor of the bill were almost all regular people who wanted to put reasonable limitations on the growth of property taxation. Taxpayers came out in force to support the bill, but they also paid for an army of opposition to show up and lobby against their interests at the same time.
Local governments have an interest in what happens in state government, but that is what elected officials are for. If the legislature considers passing legislation that affects cities, then councilmen and councilwomen and mayors should build relationships with their legislators and work together with (or against) them to shape that legislation. They should come to the Capitol and testify on behalf of their constituents. However, that activity should not be farmed out to hired bodies at taxpayer expense.
Recommendation 1 – Prohibit taxpayer funded lobbying. The Texas Legislature has made several attempts to enact such a prohibition. Most recently, the Texas Senate Passed Senate Bill 10 (87R), which would have prevented the governing body of a county or municipality from spending public money or providing compensation in any manner to directly or indirectly influence or attempt to influence the outcome of any legislation pending before the legislature. The legislature should once again pursue passage of similar legislation.
Recommendation 2 – In the absence of a prohibition on taxpayer funded lobbying, each local government engaged in the practice of taxpayer funded lobbying should be required to provide a property tax exemption to taxpayers who object to the use of taxpayer funds for that purpose. This could be implemented in several different ways, but the purpose would be less to provide property tax relief and more to put local governments on notice that they will lose tax revenue by using taxpayer money to lobby state government for policies that do not serve their constituents’ interests.
[i] Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. ___ (2018) (internal citations omitted). [ii] https://www.ethics.state.tx.us/data/search/lobby/2022/2022LobbyGroupByClient.pdf [iii] Ibid. [iv] https://www.ethics.state.tx.us/data/search/lobby/2021/2021LobbyGroupByClient.pdf [v] https://capitol.texas.gov/tlodocs/86R/witlistbill/html/SB00002S.htm