Rick Perry has a plan for the thousands of refugee children streaming across the border from Mexico and Central America: Deport them at once. At a congressional hearing in McAllen today, the governor did his best to sound compassionate while calling on Congress and President Obama to further militarize the border and enact mass deportations of children despite laws and rights protecting refugees and asylum-seekers.
“People think allowing them to stay in the U.S. is doing them a favor,” he said. “It is not. Allowing them to remain here will only encourage the next group of individuals.”
Perry downplayed the deteriorating situation in Honduras (presidential coup in 2009, homicide capital of the world), Guatemala and El Salvador—the source of most of the unaccompanied minors—instead blaming Obama and drug cartels for the exodus of kids. And he nodded, ever so slightly, at some of the wilder notions of what’s driving the surge in child refugees.
“I truly believe this is manufactured to some degree by the drug cartels,” Perry said.
He went on to suggest that U.S. policy toward the influx of unaccompanied minors should be a response to the drug cartels’ “change in tactics.”
As with many things border- and drug war-related, Perry’s glib solutions had a perverse, ironic logic. By most published accounts, including hundreds of interviews with unaccompanied minors conducted by the United Nations High Commissioner for Refugees, the child refugees are fleeing abuse and extreme violence, much of it cartel-related, in their home countries. (Many of them, it’s important to note, are seeking asylum in countries other than the U.S.; according to the UN, Mexico and more stable Central American nations registered a 435 percent increase in asylum claims from Guatemala, El Salvador and Honduras between 2009 and 2012.) Is the best way to fight the cartels to deport kids back to the cartel-plagued communities they just fled?
Experts contend that deporting them back to their homes could lead to certain death or conscription by the cartels. “This expedited deportation thing will kill children,” said Amy Thompson, a social work Ph.D. student at the University of Texas who authored a 2008 report on unaccompanied minors. “Children will die because of this.”
Thompson said that U.S. policy on how to treat unaccompanied minors largely takes a law enforcement approach that emphasizes deportation and not the safe repatriation of kids following child welfare standards. The U.S. does little to ensure that when children are sent home that their return is coordinated and safe.
Still, minors from countries other than Mexico have some extra protections under the 2008 reauthorization of the Trafficking Victims Protection Act. Today, congressmen at the hearing suggested that the law needed to be overhauled by making it easier to deport the Central American kids without looking closely at their situation. Children, some as young as four or five, would have to convince border agents that they deserve to have a chance to stay. Such a change would be along the lines of what Obama is asking from Congress. Gutting it would mean reversing decades of work by child welfare advocates to secure additional consideration for the most vulnerable immigrants.
But Republicans at the committee hearing today went even further, trying to conflate the child refugee crisis with a larger narrative about sealing the borders from terrorists and cartels.
Perry struck what might be termed a “si se puede!” (yes we can) tone, repeatedly telling the committee that he “truly believes” the border can be sealed.
“You can secure the border,” Perry said. ” We can do this…We’ve got the resources.”
That line was echoed by other Texans on the committee, including chairman Michael McCaul (R-Austin), who said, “Now’s the time to finally secure the border.”
No matter that apprehensions of those crossing illegally are at historic lows or that refugees are a protected class different from immigrants.
Immigrant advocates and some Democrats on the committee tried to make that distinction.
“These children have been forcibly displaced,” said Rep. Sheila Jackson-Lee (D-Houston). “A massive deportation or detention policy for children is not a humane thing to do.”
But Perry’s solution has a seductive simplicity. The talisman of sealing the border—just like winning the War on Drugs or defeating terrorism—is so powerful because it can never be accomplished; the militaristic tools to achieve the elusive 100-percent security often exacerbate the problem; and every failure to achieve the goal only leads to a doubling-down. Even a child can understand that.
Open range cattle rancher, frontier law enforcer, illegal hide trader, Methodist circuit preacher and veteran of both the Texas-Indian Wars and the Civil War – Santiago Tafolla’s life was a wild journey spanning the quintessentially Texan iconography of the 19th century. The Wittliff Collections at Texas State University has recently acquired his hand-written memoirs, along with an assortment of related maps and photographs. The documents offer a rare glimpse into the Tejano experience of 19th century Texas, and will soon be available online.
“We don’t have a lot of Tejano materials,” says David Coleman, director of the Wittliff Collections. “Across the Southwest, the Mexican-American experience is significant. In Texas, though, [documents] tends to focus on the Texans. We hope that [the Tafolla papers] will serve as a real foundation piece to build on, representing a Tejano or Mexican-American experience. ”
Tafolla was born in 1837 in Santa Fe, which was then Mexican territory. His parents died when he was young, and in a Dickensian turn of events he was sent to live with a cruel older brother who treated him more or less as a mule. In 1848—the year of the U.S. takeover of Santa Fe—11-year-old Tafolla and a cousin ran away. They nearly starved to death in the mountains until a passing American caravan rescued them. Thus began Tafolla’s travels across the United States, during which he witnessed “a wedding reception at Mormon Town, Texas; skirmishes between rowdy recruits from St. Louis and a Black crew on a Mississippi steamboat; and the Sunday afternoon going-ons at the residences of foreign ministers in Washington, D.C.,” according to the introduction to the published memoirs. His brief stint in the Confederate army was cut short by the threats of his Anglo comrades to lynch the “greasers.” He and a few other Tejanos deserted their regiment and escaped to Mexico.
“This is the only known written account of a Mexican-American who served in the Civil War, and that’s dramatically significant,” Coleman says. After the war, Tafolla returned to Central Texas and traded livestock in the oft-romanticized early days of the Texas cattle industry. The journal ends with Tafolla’s swearing-in as justice of the peace in Bandera County in 1876—the year of the last great Comanche raid in the region. Tafolla died before he could complete the memoirs, which unfortunately leaves out his religious awakening and the subsequent 35 years he spent as a Methodist circuit preacher.
The manuscript was passed down through Tafolla’s descendants as a family heirloom. His grandson attempted to have a transcription published in the 1960s, but faced a lack of interest in early Mexican-American literature. It was finally published in 2009 as A Life Crossing Borders: Memoir of a Mexican-American Civil War Soldier, by Houston’s Arte Publico Press, in an edition edited by Santiago’s great-grandchildren, including Carmen Tafolla, the current poet laureate of San Antonio.
Wittliff archivists plan to digitize the manuscript for online access within the year. Because the pages are so fragile, the public will have limited access to the original documents.
In the last decade, U.S. Border Patrol has become one of the largest law enforcement agencies in the nation. But regulatory oversight and transparency haven’t kept pace. Border residents complain of civil rights abuses including body cavity searches and other harassment at immigration checkpoints. Border Patrol shootings have also increased. Since January 2010, at least 28 people have been killed by agents, some shot in the back while standing in Mexico, according to the ACLU. But for anyone with a grievance against the federal agency, there’s little remedy other than a lawsuit. In March, two border congressional leaders—one a Republican and the other a Democrat—filed a bill to make the Border Patrol more accountable to the public and to require better use-of-force training and oversight for its agents.
Whether the bill will make it through a Congress deeply divided on anything border-related is questionable. But Congressman Steve Pearce (R-NM), cosponsor of the bill along with Congressman Beto O’Rourke (D-TX), is pragmatic about its chances. So far, he’s the only Republican signed on to House Resolution 4303, known as the Border Enforcement Accountability, Oversight, and Community Engagement Act of 2014. “Immigration is one of the hottest, most volatile issues,” Pearce says. “So it’s not like we think it’s going to automatically pass.”
To date, six Democrats have pledged support, and in April the bill was referred to the Subcommittee on Border and Maritime Security, where it remains. Even if it doesn’t pass, Pearce says, it still sends a message many Republicans can get behind: that federal overreach—which is sometimes literal—needs to be reined in. “The Border Patrol agents are very arrogant, and I can’t tell you how many constituents I’ve had in my office complaining,” Pearce says. “I’ve had constituents subjected to body cavity searches.”
HR 4303 would require the agency to create a Border Community Liaison Office to field complaints and a committee to evaluate Border Patrol training and use-of-force policies, and to report to Congress on agent-related deaths. Momentum for reform is growing. Under pressure from lawmakers and human rights groups, U.S. Customs and Border Protection, the umbrella agency of Border Patrol, recently released a highly critical report by an independent auditor evaluating the agency’s use-of-force policies. The report found that in some cases agents stepped in front of moving vehicles to justify shooting, and that other agents shot at people throwing rocks when they could have simply moved out of the way. “I think this bill—even if it doesn’t pass—communicates its own message to the Border Patrol,” Pearce says. “People are watching. And as other legislators learn more about the bill there’s going to be a predominant opinion that something needs to be done.”
The Texas Republican convention last month featured a number of GOPers from across the country, including Sen. Rand Paul of Kentucky, Sen. Kelly Ayotte of New Hampshire, and Sen. Deb Fischer of Nebraska. They came to network, build ties with the state party, and raise money, and their presence helped give the convention a greater profile in national media. The slate of speakers at the Texas Democrats’ convention this past weekend in Dallas, by comparison, was devoid of such national figures.
It didn’t have to be that way, though. Democrats involved with planning the convention told the Observer that Hillary Clinton, Joe Biden and New York Sen. Kirsten Gillibrand were in talks to speak at the gathering. Each had seemed to signal a willingness to speak—with Gillibrand even offering to help with the cost of attending the convention. But Wendy Davis’ representatives nixed the plan, fearing the national pols would be a liability for her.
The Davis campaign wanted its candidate to be the primary focus of the convention and worried that the presence of national Democrats would distract from the Fort Worth state senator’s keynote. And according to Democrats with knowledge of the debate over the speaker lineup, the campaign feared connecting Davis’ name to national Democrats who may be unpopular in Texas. Davis has suffered from quite a bit of that kind of coverage.
What would the participation of Clinton, Biden or Gillibrand have meant for the convention? According to Democrats who thought the decision to exclude national figures was a mistake, there would have almost certainly been more media attention. There simply wasn’t much to write about in Dallas, and coverage, even among Texas outlets, reflected that. And there would likely have been better attendance at the convention—Clinton, Biden and Gillibrand are generally quite popular among the progressive crowd of delegates that attended the event. “Ready for Hillary” stickers adorned many delegates. Gillibrand is an icon for progressive women thanks in part to her doomed push for military sexual assault legislation.
Clinton’s attendance, especially, would have drawn the convention into the national spotlight. Major national publications have reporters dedicated solely to chronicling Clinton’s activities. In the past, Clinton’s camp has made noises about contesting Texas in the course of the 2016 presidential race; if she spoke at the convention, that would likely have featured heavily in coverage and been a boost for a party in need of some encouraging headlines. Some closer to the party said they would have loved to see that boost—and the slate of statewide candidates that the Democrats are backing, many of whom suffer from low name recognition and limited fundraising ability, could have benefited from it, sources said.
As it was, Davis was asked to carry the convention—giving a keynote speech that ended pretty late on a Friday night. In that role, she performed adequately. But national speakers might have taken some of the pressure off Davis. (Greg Abbott, by contrast, gave a relaxed speech to his convention earlier in the day.)
The decision to exclude national speakers at the convention is fascinating for a couple of reasons. For one, it highlights a split in thinking between groups backing Wendy Davis—her campaign team and Battleground Texas—and the state party, which is providing the primary backing for most of Davis’ ticketmates, including Leticia Van de Putte. The two groups are bringing markedly different approaches to the general election. While those different strategies may complement each other in some areas, they clash in others. At the convention negotiations, Davis’ team won.
A spokesman with the Davis campaign declined to comment, but an official with knowledge of the convention planning told the Observer that “there was an effort to make sure Texas was the focus of the convention.”
Davis is running a pricey, high-stakes campaign that’s banking heavily on its ability to win over moderates and independents—the kind of voters that helped her retain a center-right Texas Senate district in Fort Worth. Some of her pronouncements in the past—flirting with open carry laws, embracing some abortion restrictions, and talking tough on the border crisis—make sense if seen through that prism. And it also makes sense that she would shy away from affiliation with national Democrats, who may not be popular with the moderates she hopes to win over.
Other candidates on the Democratic slate are being backed more heavily by the state party. They, particularly Van de Putte, have a very different strategy in mind. With a fraction of the resources Davis has, Van de Putte’s team will rely more heavily on turning out the base while taking advantage of as much free media and attention as she can. And she’ll hope that her opponent, Dan Patrick, alienates moderate voters on his own.
As such, Van de Putte, and the rest of the candidates the party is backing, might have relished the chance to stand on the same stage as Clinton et al, which might have brought some attention and resources to a party, and the party’s candidates, that are badly in need of both. But the Davis campaign was calling the shots. In the next couple months, we’ll see how this unusual dynamic plays out.
Zoe Leonard, a New York City-based photographer and sculptor, is turning Marfa inside out and upside down as part of a Chinati Foundation special exhibition.
The work is a large-scale camera obscura installation. A camera obscura is an optical device, predating photography, that uses an aperture and a darkened chamber to convert natural light into a two-dimensional image, which is typically projected onto a flat plane. In the case of “100 North Nevill Street” (the installation’s title is borrowed from the hosting Ice Plant gallery’s address), a 6-inch lens installed in one of the building’s walls casts an inverse image of the exterior landscape across the interior of the warehouse-like space. Because the image is a real-time projection of the external environment, ever-changing patterns of light and shadow, not to mention clouds and cars, keep the distorted image in constant motion.
“I hate to oversimplify what is a marvelous and complex artistic experience,” says Rob Weiner, associate director of the Chinati Foundation, “but you walk into the room, which has become a kind of camera, and you see an upside down image of the outside that fills the walls, floor and ceiling.
“Everybody has a completely different experience,” Weiner says. “You start looking at something that’s familiar in a very particular way. It makes it strange for a moment, even though it’s completely accurate. You’re looking at it in a different perspective. Like all art, it’s experience.”
Leonard’s West Texas presentation is the final installment of a worldwide series. In New York City, the artist received widespread acclaim for “945 Madison Avenue” at the 2014 Whitney Biennial. Leonard had previously exhibited camera obscura installations in Venice, Italy (2012), London (“Observation Point,” 2012), and Germany (“Available Light,” 2011). The current Marfa installation is the only location projecting primarily natural scenery.
The Chinati Foundation has an evolving relationship with Leonard, who first visited Marfa with a friend several years ago. Since then, Leonard has returned to Chinati to exhibit her photography, and in 2010 performed a spoken word piece called “This Is Where I Was” based on more than 1,000 collected postcards of Niagara Falls.
The Ice Plant is located on East Oak Street between North Nevill and Salarosa streets in Marfa. “100 North Nevill Street” is free and open to the public from noon to 2 p.m., Wednesday through Sunday, until the end of the year.
Hey, we made it! It’s Friday, the day when having continued to exist during the immutable passage of time feels like an accomplishment. Time to look back at some recent choice moments in our state’s public discourse.
This week’s theme: the elusive “core concept.”
1) The Texas Democratic Convention happens this weekend in Dallas, but one of the party’s most buzzed-about candidates won’t be there: Jim Hogan. The Democratic candidate for agriculture commissioner who raised no money, has no experience, and did not campaign will preserve his flawless outsider cred by not showing up at the convention, either. (“Boycotting” seems like too active a verb for this guy.) The candidate for statewide office explained to The Texas Tribune, “There’s not a political bone in my body. I just want to be ag commissioner. I don’t want to have to go be a politician to get there.”
2) Most of the week’s WTF-ery related to the influx of undocumented immigrants, including thousands of unaccompanied children, crossing the border and being detained. Gov. Rick Perry did his best to frame the problem as the humanitarian crisis it is, but did so, in true Perry form, by evoking one of our nation’s most outrageous atrocities against people of color. “There’s babies,” Perry told a press conference on Monday, “I mean there are babies there that have been transported all across Mexico. I’m telling you in July and August, if the message does not get out into those countries in Central America, you’re going to see a trail of tears again, from Central America to Texas.”
Props to Mike Ward of the Houston Chronicle who pulled no punches when he explained, in the second paragraph of his piece about the comment, “The Trail of Tears is the name of the ethnic cleansing campaign and forced relocation of tens of thousands of American Indians from the southeastern United States to Oklahoma during the 1830s. More than 6,000 are believed to have died.”
3) As a break from the darkness, here’s Rep. Louie Gohmert willfully photobombing Oklahoma Rep. James Lankford on live TV:
He may have been motivated by the attention he received after photobombing freshly elected House Majority Leader Kevin McCarthy and conservative activist Ralph Reed last Friday:
The Washington Post called this one “Amazing,” but we think the FOX News creep-up is even better.
Gohmert also talked this week. On Wednesday, at a House Judiciary hearing tastefully titled “An Administration Made Disaster: The South Texas Border Surge of Unaccompanied Alien Minors,” Gohmert said the Obama administration must stop “luring these children into America” because “there are children that are suffering and being hurt, being lured here to their detriment.” See? Like Perry, Gohmert cares because the children could get hurt! Oh and because they carry “lice,” “scabies” and “H1N1,” or swine flu, he added. Keep it classy, Gohmert.
4) State Rep. Jonathan Stickland also subscribes to the “luring” theory. On his website Tuesday, Stickland wrote, “All the magnets attracting folks here must be turned off. No more benefits or special perks for illegal immigrants.”
In his honor, we proffer the classic music video “Miracles” from the group Insane Clown Posse, an un-ironic meditation on the natural world that features the line, “[Expletive] magnets, how do they work?” If you don’t mind a handful of F-bombs, it’s definitely worth your time.
5) Now let’s get down to brass tacks. State Rep. Bill Zedler knows how to fix this mess: boycott Mexico.
Tahmooressi is a U.S. Marine being held in Mexico on weapons charges. Bud Kennedy of the Fort Worth Star-Telegram pointed out that Mexico is Texas’s top trade partner, doing about $539 million in trade a day, so a boycott would probably be bad. But at least it would stop Central Americans fleeing violence from migrating to the U.S.
6) Happily, none of us have to worry about this tragedy, or anything, much longer, according to Kathie Glass, the Libertarian Party candidate for governor. On her website, she declares, “If I don’t become Texas governor, it really doesn’t matter which one of the other two does, because America will die and take Texas and liberty with it.”
Beneath the compassion expressed by Texas’ top elected leaders for the Central American kids pouring over the border lurk some dangerously uninformed, untenable and inhumane proposals.
Rick Perry, for example, has mixed empathy for the kids with calls to action that could lead to even worse suffering for the unaccompanied children and their families. Wendy Davis has inexplicably called for a special session of the Texas Legislature to deal with the situation, which would probably be as productive as those special sessions on abortion.
By treating what is arguably a refugee crisis like a national security threat—with the attendant calls for sealing the border and ratcheting up exaggerated fears of disease and “Amnesty!”—it’s inevitable that we’d end up with a martial approach.
Following a visit to a Border Patrol detention facility in McAllen, Rick Perry penned an op-ed this week that is uncharacteristically interested in human suffering but ultimately amounts to so many crocodile tears:
The first thing I saw was a boy crying. Terrified and sobbing against the window of the holding cell, he couldn’t have been more than 12 or 13. The room was full of other young boys, their curious eyes peering out at us as we walked by. These were the ones who made the trip alone.
The very real human consequences of our country’s lax border security and muddled immigration policies huddled right there, under an open shelter in the stifling Texas heat.
Anyone with a heart, including Perry, would be moved by the sight of some very brave, and one assumes, very scared kids, who’ve just made a dangerous trek thousands of miles to a foreign country, only to find their lives as precarious as ever.
The governor also struck a thoughtful, if vague, note on the general outlines of the problem:
This is a complex situation and a growing humanitarian crisis that will require a multifaceted solution.
All well and good. But what does Perry propose?
The U.S. needs to act decisively. First off, the federal government needs to make it crystal clear that attempting to cross our border illegally simply isn’t worth the considerable risk. People in Guatemala, El Salvador, Honduras and elsewhere who are considering making the trip need to know that they will be immediately sent back to their country of origin when they’re detained, not sent to various locations across the United States or placed in the care of loved ones.
Although the context does not make it entirely clear, it appears that Perry is proposing that immigrants from Central America be immediately deported back to their home countries. According to immigration attorneys, this would be illegal, untenable and reverse this nation’s recognition of the rights of refugees, asylum-seekers and others who have a legitimate claim to remain in the U.S.
“That’s just flat wrong,” said Dan Kowalski, an immigration attorney in Austin. “The only people who are being sent back immediately are those who agree to be sent back. … That can’t happen under federal law. You’d have to get Congress to change the statutes. We also have one or two treaty obligations.”
Typically, unauthorized immigrants caught at the border—if they’re not prosecuted first—are put into deportation proceedings and will, if they stick it out, be ordered to appear before an immigration judge. No attorney is provided to them. There are a number of reasons why a judge might allow an immigrant to stay: She’s a bona fide asylum-seeker, she’s a victim of violence and can help U.S. authorities solve a crime, she’s a refugee, etc.
The unaccompanied kids from Central America, in particular, could have compelling claims. A recent United Nations report, based on interviews with 404 minors who entered the U.S. in the past few years, found that 58 percent “were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.”
Barbara Hines, who directs the immigration law clinic at the University of Texas School of Law, wrote in an email that the Central American children are afforded “special protections under the law and may qualify for reunification with family in the U.S., special immigrant juvenile status or asylum, depending on their circumstances. Second, under our international law obligations, incorporated into the immigration statute, a person fleeing persecution may not be returned to his or her own country if he/she establishes a fear of persecution. So clearly not everyone can be sent ‘immediately back’ as Perry claims.”
There’s also the glibness of Perry’s solution. If you care about these kids, then you have to care about what would happen to them if you booted them back over the border. Melissa del Bosque reported extensively in 2010—where was Rick Perry then?—on the fate of Mexican minors who are deported back to Mexico. Some of them, abandoned, become victims of violence or rape, fall into the hands of cartels, or meet fates we’ll never know. Others, desperate to flee the violence and poverty of their homes or eager to reunify with family members in the U.S., will attempt to cross over and over again. “Where I come from,” one 15-year-old Mexican boy told Melissa, “we’re not afraid to die.”
And what does Wendy Davis have to say about the “humanitarian crisis” at the border?
In a letter to Rick Perry, she mostly echoed the Republican-led effort, including the deployment of Texas law enforcement to the border. She did suggest that “adequate food, shelter, clothing and healthcare are equally important” but proposed a special session of the Legislature to take up how to pay for it—an idea that was roundly condemned and mocked by immigrant advocates. John-Michael Torres, an activist in Mission in the Valley, wrote on his blog that a “special session would open the legislature to a flood of anti immigrant bills. We’d see a repeat of 2011, when more than 90 anti immigrant bills were introduced.”
Davis also called on Obama to provide “a sufficient number of [immigration] judges” to provide for “immediate hearing[s]” for the Central Americans. How such judges could be found, trained, deployed to the border and provide due process in adjudicating complex claims “immediately” she didn’t explain.
This also didn’t sit well with activists. “So basically a call for more immigration judges without a call for additional legal aid means a faster deportation process,” wrote Torres, who helped organize a “Facebook bomb” of Davis’ Facebook page in response. “So she wants to deport them back to the extreme violence they’re fleeing. WTF.”
But after Torres and his group, La Union del Pueblo Entero, targeted Davis, her campaign pointed them to a letter she had sent Obama on June 23rd. The letter is very similar to the one that she sent Rick Perry but with one key difference: She asked Obama to provide for attorneys ad litem for the kids in addition to more immigration judges. I’ve asked the Davis campaign for clarification on why this wasn’t included in her widely touted letter to Perry.
Kids crossing the border alone is not a new issue. Folks on the front lines have been struggling with this vexing phenomenon for years. Politicians who show up during a crisis moment proffering quick-fix solutions will do more harm than good. It’s easy to express some cheap form of empathy. It’s much harder to come up with real solutions. On that thought, I’ll leave you with what Melissa wrote in 2010:
If government leaders could rise above the divisive politics, they could stop this humanitarian crisis. Mexico and the United States have binational accords and a repatriation program to protect migrant children, yet neither country ensures they’re safely returned home. The U.S. Border Patrol and the DIF could set up a database to monitor children at risk to prevent them from ending up on the streets. The U.S. Congress could pass comprehensive immigration reform that includes a family reunification process to prevent children from being dumped in Mexican shelters. The Border Patrol already has a congressional mandate to screen for vulnerable kids and refer them to U.S. agencies that can help, yet advocates say it’s not being done. One thing is for certain: Until politicians on both sides of the river eradicate the poverty that uproots these families, children won’t stop coming. Even if the United States puts soldiers on the border and spends billions on fences and high-tech equipment, they’re not going to stop the exodus.
Michael Quinn Sullivan, the conservative power broker who’s the subject of a long-running investigation by the Texas Ethics Commission, had his day in court yesterday. The commission, looking into allegations that Sullivan acted as an unregistered lobbyist, issued a subpoena to compel Sullivan to testify at a lengthy formal hearing Wednesday. And Sullivan refused.
For some time, Sullivan, who functions as the overseer for an endless stream of “dark money” emanating from Midland oilman Tim Dunn, has responded to the commission’s inquiry with an increasingly surreal attitude of legal nihilism. The charges against him are illegitimate because the Ethics Commission itself is illegitimate. Any laws restricting the activities of lobbyists, those paid to influence legislators, are illegitimate. It’s a bit like Bernie Madoff telling his judge that money is simply a social construct.
With an Abbie Hoffman-esque sense of showmanship, he’s tried to turn a standard ethics complaint into a David-and-Goliath battle. MQS’ allies have even christened his cause with a hashtag, #TXspeechfight, as in, free speech. If he’s forced to register as a lobbyist, he says, so will every Texan visiting their state rep to ask about, say, their local water board. It’s nonsense, but it’s succeeded in riling the troops.
MQS has compared the Ethics Commission to Nazis, and sent out email blasts from his organizations slamming the commissioners as the jackbooted thugs of the Establishment. In closing arguments yesterday, his lawyer, former state Rep. Joe Nixon, wandered the room telling the crowd that “today is a day we stand on a wall between tyranny and freedom.”
So an observer might have expected a courtroom showdown when Sullivan took to the stand—like Howard Hughes before the Senate, he would show them what’s what. Sullivan had a perfect opportunity to say to the Ethics Commission what he has been saying for more than a year through his email blasts, and to the media, over and over, with increasingly heated—and sometimes vicious—rhetoric. He had a chance to man up. But it was not to be.
In past hearings, Nixon had sought to find out whether the commission would take it unfavorably if Sullivan pleaded the Fifth, fearing self-incrimination. When he learned that the commission might draw a “negative inference,” Nixon apparently decided on a different tack. He informed the commission that Sullivan would refuse to testify based on the First, Fourth and Fourteenth Amendments—but not the Fifth.
Commission Chairman Jim Clancy asked Nixon if he could name a single other case in Texas where a person successfully cited the First Amendment as a reason not to testify. He couldn’t. So the questioning continued. To dozens of pointed questions, Sullivan continued: “On the advice of my counsel, I will not be testifying today.” Dozens of questions were asked, and met with the same answer. Some commissioners asked, more or less, why have you been saying such vicious things about us? Sullivan: “On the advice of my counsel, I will not be testifying today.”
It is a sound legal effort? Will Nixon’s I’ll-try-literally-anything legal defense strategy find a home in a higher court? Maybe! But yesterday was fascinating because it seemed to show a fundamental truth about Sullivan. He’s like the kid who acts tough on the playground, then, when hauled off to the principal’s office, goes silent.
In the end, it’s hard to put it better than state Rep. Jason Villalba, who’s tangled with Sullivan in the past. Sullivan derives his power from the money he takes from Midland oil zillionaire Tim Dunn and distributes liberally throughout the state, hidden from disclosure requirements. In other words, he holds power only because he can remain opaque about his intent and activities. “To clarify,” Villalba wrote. “The guy who talks a lot is refusing to talk so that he can continue to talk for a guy in the shadows who never talks.”