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.”