‘Hide the Evidence': New Texas Law May Help GOP Keep Secrets About Its Redistricting Strategy

AUSTIN — Texas has passed a new law that lets lawmakers conceal their emails and other communications from public scrutiny, as they prepare to redraw the state’s voting maps.The law’s Republican authors, North Texas Rep. Charlie Geren and Sen. Kelly Hancock, billed it as a housekeeping matter, a routine update to rules governing how lawmakers retain records and run debates. It passed easily with almost no discussion and little media attention. Geren, R-Fort Worth, later defended the new law in multiple statements to The Dallas Morning News as a way to protect the separation of powers and, specifically, legislative independence.But transparency advocates warn the new measure will dramatically expand what legislative documents can be kept secret, allowing the men and women who write laws to hide why they make the decisions they do and who is influencing them to act. The bill was passed ahead of the 2021 redistricting process, leading some to worry it was written specifically to help state lawmakers and legislative staffers responsible for redrawing the Texas’ political maps maps to hide their tracks.“This is very clearly an attempt to hide communications about redistricting from any future court review,” said Nina Perales, part of a team of lawyers who successfully challenged the state’s 2011 maps. “Normally, Texas legislators have only had two options: lie or tell the truth about their motives. “The new bill is an attempt to create a third option, which is hide the evidence.”'Legislative privilege'House Bill 4181, which became law June 14, allows state lawmakers and legislative employees to keep secret all communications that deal with “a legislative activity or function” and are “given privately,” a phrase not defined in the statute. This “legislative privilege” extends to any discussions “among or between” the lieutenant governor, parliamentarians, members of all legislative boards, commissions, councils, departments or offices, except the Texas Ethics Commission, and any “person performing services under a contract” with the Legislature. Communications between legislative lawyers, or their employees, and lawmakers are also confidential due to attorney-client privilege, the new law spells out. It also shifts some responsibilities from records custodians at the Texas State Library and Archives to the Texas Legislative Reference Library.While lawmakers have long had the authority to withhold many internal documents, this change allows nearly every person who works under the Capitol dome to cite “legislative privilege” in order to refuse to turn over almost any communication. In the new law itself, it says this privilege is necessary “to protect the public’s interest in the proper performance of the deliberative and policymaking responsibilities of the legislature” and to preserve the separation of powers.Joe Larsen, an Austin-based attorney who advocates for open government, said this effectively creates “a black box” that will let lawmakers and their staffs avoid accountability. The public and the press will no longer have access to their communications, including emails, memos and other documents, allowing them to keep Texans in the dark about their decisions, he added.It will “completely allow the legislators to control the message, keep anyone from looking behind the curtain,” said Larsen, a board member on the Freedom of Information Foundation of Texas. “It’s a power grab.”“This is a big deal and it should have been vetted. It’s closing off a big source of information to the citizens of Texas,” he added.Little scrutinyThe legislative privilege law was little noticed this year, when legislators were busy patting themselves on the back for passing a handful of bipartisan open government bills that improve transparency in state contracting and public meetings.Geren filed the bill March 8, the deadline for submitting legislation. It was referred to the Committee on House Administration, which he chairs, for debate. Members of the public were not invited to speak on the bill that day, so the hearing where it was first introduced was not recorded, his staff confirmed.During the bill’s introduction on the House floor on May 2, Geren described it as a cleanup measure to modernize the day-to-day workings of the legislative branch of state government. “The statutes governing legislative organization and operation have not been updated in probably 30 years,” Geren said. “There are other updates in this, as well as codifying what is privileged and what is confidential. ... I'd be happy to take questions.”But there was no substantive debate on the bill that day. After Rep. Giovanni Capriglione, R-Southlake, amended it to specify which contractors can claim legislative privilege, House lawmakers approved it by a vote of 136-0.  Continue reading...

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