Knowledge bomb dropped on #campaignfinance reformers by federal district court

In an order published a few days ago, the federal district court for the Middle District of Pennsylvania entered an order declaring that, in accordance with Citizens United and all the circuit cases following it, Pennsylvania could not prohibit corporate contributions to independent expenditure only committees.  The State had actually conceded throughout the case that it couldn’t enforce the law, and the only question was the scope of the injunction.  But the district court included this footnote:

Despite popular misconceptions, Citizens United did not announce that “corporations are people.” The Court had previously recognized that First Amendment protections extend to corporations and other associations of individuals, and not just “natural persons.” Id. at 342–43 (collecting cases). Similarly, Citizens United did not declare that “money is speech”; rather, it was the latest in a line of decisions recognizing that political giving and spending are protected First Amendment activities.
Gen. Majority Pac v. Aichele, No. 1:14-CV-332, 2014 WL 3955079, *2 n. 1 (M.D. Pa. Aug. 13, 2014).
I’ll hold my breath while the campaign finance “reform” zealots take a step back and recalibrate their anti-factual sensationalism.

Prof. Hasen of Election Law Blog on Perry’s indictment

Prof. Hasen runs what is probably the most-visited blog on political law, the Election Law Blog.  Politically, he’s not friend of Rick Perry. Here is an excerpt from his take on the indictment:

Perry joins the list of other politicians prosecuted under controversial or dubious theories, including Tom DeLay, John Edwards, Scott Walker, Don Siegelman, and Ted Stevens. Some go to jail; some don’t. Some get convicted by juries; some don’t.  Some have their prosecutions overturned on appeal; some don’t.

The common thread here is the criminalization of politics.

I agree, and I said the same thing about the John Edwards prosecution at the time.  Although I admit that in that case, I had to fight the instinct for schadenfreude as I watched a liberal politician fall victim to an aggressive campaign finance-based investigation after he had benefited from what liberal campagin finance reformers would surely have called an illegal in-kind contribution if it had been anyone other than a liberal democrat.

Prof. Hasen’s piece also points to a post by Prof. Eugene Volokh, criticizing the soundness of the indictment.

ERO referendum petition saga: Plaintiffs withdraw injunction request; trial set for Jan. 19, 2015

It appears this case will be around for a while, and I’ll be writing about it occasionally. Let me preface this post with an observation. I don’t appreciate the way the referendum petition organizers have presented this issue (the ERO ordinance) and their objections to it.  I think there is a compelling case against such ordinances that can and must be made on traditional liberty and economic freedom grounds that does not require anyone to demean homosexuals or make the incendiary statements some of the organizers have.  The kinds of arguments they have made against it not only miss the compelling point, but they are counterproductive and hurtful to a lot of people. More on all that later.

I just returned from watching the hearing. A few key developments:

1. The plaintiffs withdrew their request for a temporary injunction, and agreed to set trial for January 19, 2015.  This development apparently arose after it was clear the court did not see any immediacy to justify an emergency injunction.  There was no immediacy because (1) the City stipulated that it would suspend the ordinance until trial on the merits, and (2) apparently the plaintiffs did not dispute the City’s contention (made in its response) that if plaintiffs’ petition is indeed valid and the City refuses to repeal the ordinance, the referendum would be placed on the November 2015 ballot, not November 2014.  The City may be right on that point, but there is room to argue the statute is ambiguous.

2. Andy Taylor, the plaintiffs’ attorney, raised the argument I posted on this blog this week that it is a violation of the First Amendment to require a petition circulator to be a registered Houston voter.  I think this argument goes another step.  If it’s unconstitutional to require a circulator to be a registered voter of the jurisdiction, it’s unconstitutional to require the circulator to sign the petition that she is only eligible to sign if she is a registered voter.  In other words, even for those circulators who are registered Houston voters, it is improper to reject pages submitted by that circulator on the ground that she did not sign the petition as a signatory (as opposed to signing as a circulator). The city rejected some pages because the circulator was not a registered Houston voter, but it rejected many more because (it says) the circulator did not sign the petition as a signatory.  I think Buckley means the City may not throw out signatures on either of those grounds, not just the first.

3. The Fourteenth Court of Appeals apparently has denied plaintiffs’ request for mandamus on the grounds that the plaintiffs have an adequate remedy at law in the district court.  The case page for that is here, but the court of appeals hasn’t posted the order yet.

4. The City showed up with 14 lawyers on its pleadings and probably half were in the courtroom.  They threatened in writing and orally that they would seek attorneys fees from the plaintiffs.  I think the plaintiffs will prevail, and the certainly should prevail on the constitutional argument under Buckley.  I think they should amend their petition to state this constitutional claim under 42 USC 1983 (federal civil rights action), and seek attorneys’ fees from the City under 42 USC 1988.  See, e.g., Pruett v. Harris County Bail Bond Bd., 356 S.W.3d 103 (Tex. App.–Houston [1st Dist.] 2011) (illustrating fee award in state court for prevailing plaintiff under 42 U.S.C. 1988). The City’s legal team came in with an air of unnecessary pomposity, and their response reads the same way.  Fourteen lawyers from premier law firms is clearly overkill for the taxpayer, and if the plaintiffs establish that the City is paying fourteen lawyers to defend a charter provision that is clearly unconstitutional under an unequivocal Supreme Court case that has been on the books since 1999 (and followed by many other cases), the City should have to pay for it. Time will tell.

ERO referendum petition saga: City of Houston files response to request for temporary injunction

The City of Houston has apparently hired three premier law firms to represent it in defending against the plaintiffs’ state-court petition.  Those law firms are Susman Godfrey LLP, Haynes & Boone LLP, and Fulbright & Jaworski LLP.  The three law firms have each listed three or four attorneys on the pleadings.  That makes 14 attorneys on the pleadings for the City of Houston, including those from the City’s legal department.

Their response in opposition to the request for temporary injunction is here:

20140814 Response in Opposition

The hearing is set for 1:30 today in the 152nd District Court.

ERO referendum petition saga: When are residency requirements permissible as restrictions on individuals performing political activity?

A few days ago I posted my analysis concluding that the City of Houston’s requirement that referendum petition circulators sign the petition themselves is likely unenforceable, because it’s unconstitutional to require a circulator to be a registered voter of the jurisdiction.  See Buckley v. Am. Const’l Law Found., 525 U.S. 182 (1999).  Charles Kuffner points out that in Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013), the Fifth Circuit upheld the Texas statute requiring “volunteer deputy registrars” (“VDRs”) to be Texas residents (and appointed as VDRs under a perfunctory statutory process), and wonders what gives. How are there different results in these similar circumstances?

It’s a smart point.  First, there is a distinction between a residency requirement and a requirement to be a registered voter.  Buckley has some discussion about how the registered-voter requirement may be more of a constitutional burden than a bare residency requirement, and in Voting for America the Fifth Circuit began by pointing out that a state residency requirement for petition circulators had been upheld by the Eighth Circuit.  See 732 F.3d at 389 (citing Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001)).  However, the plaintiffs challenging the voter registrar residency requirement argued that Buckley’s rule should apply to strike down the residency requirement as applied to VDRs who transport completed voter registration applications to the elections officials.  The Fifth Circuit squarely addressed the argument, but rejected it:

At oral argument, [the voter registration organizations] urged the court to draw a close parallel to the Supreme Court’s reasoning in Meyer, 486 U.S. at 422, 108 S.Ct. 1886, finding that the circulation of initiative petitions was a matter involving the core political speech rights of the circulators under the First Amendment. The analogy is improper. The circulation and submission of an initiative petition is closely intertwined with the underlying political ideas put forth by the petition. The petition itself is the protected speech. Moreover, the very nature of a petition process requires association between the third-party circulator and the individuals agreeing to sign. In the voter registration context, the underlying expressive conduct (encouraging democratic participation and voting) does not implicate a third-party’s right to process the application. Voter registration applications are individual, not associational, and may be successfully submitted without the aid of another. Here, the actual expression is not being limited.

Voting for America, Inc., 732 F.3d at 390 (quoting the previous motions panel in the same case that had granted a stay of the district court’s injunction, at Andrade II, 488 Fed.Appx. at 898 n. 13 (emphasis added)).  The Fifth Circuit continued:

Buckley and Meyer are further distinguishable because those cases involved laws that specifically regulated the process of advocacy itself, dictating who could speak (only unpaid circulators and registered voters) or how to go about speaking (with name badges and subsequent detailed reports). Thus, the Colorado law had “the inevitable effect of reducing the total quantum of speech,” limiting “the number of voices who will convey [Plaintiffs'] message and the hours they can speak and, therefore, limit[ing] the size of the audience they can reach.” Meyer, 486 U.S. at 422–23, 108 S.Ct. at 1892.

Id. at 390.

I think there are some distinctions between initiative/referendum petitions and voter registration drives for some purposes, but the court’s rationale in Voting for America is not terribly persuasive.  One can argue that persuading folks to vote is just as important to one’s cause or message as persuading a voter to sign a petition.  So it seems to raise the same speech concerns.  If the government’s concern is making sure VDRs are amenable to legal service, then the state could do that by requiring them to designate an agent for service, providing their residence address, etc. just as the Buckley court noted in the petition context.  Thus, to my mind, to the extent there is an inconsistency in these two lines of cases, it is Voting for America that gets it wrong.  And there are other cases holding residency requirements for petition circulators are unconstitutional burdens on First Amendment rights.  See, e.g., Libertarian Party v. Judd, 718 F.3d 308 (4th Cir. 2013).  That does not foreclose the distinction the Fifth Circuit draws, however, in the voter registration context.

I note that the plaintiffs on Monday filed an original petition for writ of mandamus (posted by Big Jolly) in the Fourteenth Court of Appeals, which does not challenge the constitutionality of the requirement for circulators to sign the petition.  It appears to raise the same arguments as the state petition.  The plaintiffs might have wanted to file in both courts simultaneously to ensure that at least one court has jurisdiction.  This is not an easy question–depending on how the courts view the factual posture of the situation, the court of appeals may be the only court with jurisdiction to issue relief.  If that’s the case, then you can’t wait for the district court to decide that and encourage you to file in the court of appeals, because by then the clock will have expired.  So the plaintiffs are smart to file simultaneously in both courts.  But I think challenging the circulator requirements should be the focus of this case, because Buckley is clear.  I think the state district court could declare the law on that issue, and issue an order requiring the city secretary (or the city, through whomever has the delegaged authority) to tell the City Council whether the petition requirements are met in the absence of the requirement that circulators sign the petition.  The court of appeals may have the jurisdiction to issue the same opinion and order in the mandamus proceeding.

*This post was updated to clarify that Voting for America upheld a bare residency requirement, not a requirement to be a registered voter.

Fifth Circuit Court of Appeals strikes down Texas PAC waiting period

Press release issued by Najvar Law Firm:

FOR IMMEDIATE RELEASE

August 13, 2014

Contact: Jerad Najvar, 281.404.4696

Fifth Circuit Court of Appeals Strikes Down Texas PAC Waiting Period

Late yesterday afternoon, the United States Court of Appeals for the Fifth Circuit issued a decision striking down provisions of the Texas Election Code, in place since 1987, that imposed a “waiting period” on newly-formed Texas political committees.  The decision is a major First Amendment victory that restores the fundamental free speech rights of all grassroots groups in Texas.

The central issue in the lawsuit was a challenge to Texas Election Code section 253.037(a), which demanded that before any group defined as a “general purpose” political committee could spend more than $500, it had to jump through three bureaucratic hurdles:  (i) register with the state; (ii) collect contributions from ten persons; and (iii) wait 60 days.  A “general purpose” political committee is defined as any group of two or more persons who share common principles and form with the purpose of pooling their resources to support and oppose candidates based on those principles.  Section 253.037(a) prevented such groups from spending funds on everything from political contributions to fully independent political advertisements, even though “specific purpose” committees formed to support identified candidates (rather than their own principles) were not subject to the waiting period.

The plaintiff PACs planned to spread their message to voters before Texas’ primary runoff elections on July 31, 2012.  They all registered with the Texas Ethics Commission (“TEC”) and filed campaign finance reports prior to the elections, disclosing all contributions and expenditures in strict compliance with the reporting requirements.  Yet they were still silenced because they had not formed more than 60 days before Election Day. Plaintiffs filed suit in Austin in June 2012, seeking an emergency injunction before the runoffs.  The district court denied that request, and the Fifth Circuit denied an emergency appeal with only days before the elections.  After final judgment was granted for defendants, the plaintiffs remained undeterred, appealing again to the Fifth Circuit.

“We were always confident that when the Fifth Circuit looked at this on the merits, it could only reach one conclusion,” said Jerad Najvar, attorney for the plaintiffs.  “The government can never impose a waiting period on political speech, and the court properly rejected the TEC’s attempt to cloak this pernicious speech ban as a mere disclosure requirement.”

The Fifth Circuit’s opinion holds that the 60-day waiting period and ten-contributor requirements are facially unconstitutional in all applications—that is, to the extent they restrict political expenditures (including independent, “direct campaign expenditures”) and contributions to candidates and other PACs.

Notably, the Fifth Circuit roundly rejected the specious argument the TEC relied on throughout the case: that these plaintiffs should not complain about a waiting period on their PACs when they could have re-purposed themselves as narrowly-focused “specific purpose” committees or used related nonprofit organizations to pay for election ads.  The court properly recognized that “the availability of other avenues of speech does not excuse the imposition of an unconstitutional burden on organizations wanting to engage in speech.”  The Court specifically found that the TEC’s suggestion to act like a specific-purpose committee amounted to a demand that the plaintiffs “change their message and pledge fidelity for or against particular candidates or measures,” which “contravenes the fundamental rule of protection under the First Amendment that a speaker has the autonomy to choose the content of his own message.”  After this ruling, Texas can no longer require general-purpose committees to wait 60 days and collect ten contributions before engaging in meaningful political activity.

The Fifth Circuit upheld the separate requirement that a political committee register before exceeding $500 in expenditures.  This Texas registration requirement differs from almost all other jurisdictions by banning activity over a certain level before registration, as opposed to requiring registration within a certain number of days after a threshold is exceeded.  “The Fifth Circuit essentially said that because these groups actually were able to register without a problem, it didn’t see the harm from this provision,” said Najvar.  “But I believe the law is clear that this is an unconstitutional prior restraint, and I have no doubt that the courts will strike it down when a plaintiff can show the harm it causes.  The Ethics Commission continues to fine groups and candidates for failing to register before they spend more than $500.  The court just needs to see those facts.”

The Fifth Circuit also rejected a narrow challenge to Texas’s ban on corporate contributions as applied to prohibit the Catholic Leadership Coalition of Texas, an incorporated 501(c)(4), from contributing its email contact list to a PAC solely for the PAC’s use in distributing advertisements done independently of candidates.  The Court said plaintiffs had not shown enough in the record to establish that sufficient safeguards were in place to ensure that the email list would only be used for independent expenditures.  This issue was presented in a very narrow sense on specific facts, and the Fifth Circuit was careful not to prejudice a ruling on the broader issue of hybrid PACs.

The case is Catholic Leadership Coalition of Texas, et al. v. Reisman, et al., No. 13-50582, on appeal from the U.S. District Court for the Western District of Texas at Austin.  Plaintiffs, all based in the San Antonio area, are:

  • Texas Leadership Institute for Public Advocacy – a group of predominantly lay Catholics who believe in the true precepts of the Church and who, among other things, wish to support candidates who will protect religious freedom against government encroachment
  • Friends of SAFA Texas – a group also composed primarily of lay Catholics to support candidates “focused on protecting, defending, and promoting the family, the original and basic unit of society”
  • Texas Freedom PAC – focused on recruiting and promoting Hispanic candidates who adhere to core conservative values
  • Catholic Leadership Coalition of Texas, Inc. – an nonprofit educational organization formed to inform Catholics about the moral precepts of the Church, particularly as they pertain to Catholics’ responsibilities as voters

Jerad Najvar practices political and appellate law and is founder of the Najvar Law Firm in Houston.  He served as co-counsel to plaintiff Shaun McCutcheon in McCutcheon v. FEC, a successful challenge to federal aggregate contribution limits decided by the U.S. Supreme Court.

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City of Houston’s stated ground for invalidating thousands of ERO petition signatures is unconstitutional

The Houston City Attorney has argued that thousands of signatures on the referendum petition submitted to repeal the Equal Rights Ordinance are invalid under the Charter for several alleged defects.  While it is unclear whether the City Attorney even has the authority to override the Secretary’s determination that the petition was valid (the primary issue raised at present in the plaintiffs’ emergency lawsuit to validate the petition), this post addresses another issue that may prove determinative, even if the City Attorney establishes that he has authority to review the petition himself.

The City Attorney’s memo leaves much to be desired in terms of clarity.  For example, the first category of defective pages states that “Legal was not able to confirm that the circulator also validly signed the petition.”  This purported defect, according to the City Attorney, affected 347 pages with 2,694 signatures.  It is not immediately clear, at least from the memo itself, whether this means the signatures within this category are allegedly invalid because the City Attorney could not verify whether the circulator signed at all, or that the circulator’s signature was not “valid” because though she signed, she was not a registered Houston voter.

The Houston Chronicle reported that:

Most pages were thrown out because those who collected names for the petition were not registered Houston voters or did not sign the petition themselves. Those errors invalidated more than 2,000 pages with about 11,300 signatures

While we lack clarity as to exact numbers, it appears that given a blatant constitutional infirmity with part of the circulator requirement, and the structure of the language of the relevant charter provision, the requirement that the circulator be a petition signatory herself may be unenforceable.  If so, at least those 2,694 signatures in the City Attorney’s first category, and possibly many more, would be effective.

Under the Houston City Charter, only “qualified voters” of the City may sign a recall petition, Charter art. VIIa, § 2, and in this context, the Texas Election Code defines “qualified voter” as “registered voter.” § 277.0021. This same requirement applies to the referendum petition filed by the opponents of the City’s Equal Rights Ordinance, because referendum petitions must be “signed and verified in the manner and form” required for recall petitions. Charter art. VIIb, §§ 2, 3.  So, one must be a registered Houston voter to sign a referendum petition.

The signatures also must be verified in one of two ways.  The first option is for each petition signer to sign the petition in the presence of a licensed notary or other “officer authorized by law to take acknowledgments and proof of deeds.” Charter art. VIIa, § 3; art. IX, § 3. This is plainly burdensome on the petition process; petition gatherers do not typically travel door to door with a notary.  Alternatively, a petition circulator may complete an affidavit swearing that all of the signatures on a petition page were made in his presence on the date the signature indicates. Charter art. VIIa, § 3. The circulator, however, must be one of the signers of the petition. Id. Since only registered Houston voters may sign a petition, these provisions together mean that the Houston Charter requires that petition circulators also be registered Houston voters.

Here we have the blatant constitutional infirmity:  the requirement that the circulator be a registered voter of the jurisdiction has been unconstitutional since the Supreme Court decided Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999).

Buckley held that circulation of an initiative petition constitutes core political speech, and that the registered-voter requirement as applied to petition circulators reduced the total quantity of speech by reducing the pool of potential circulators.  525 U.S. at 195-97.  This burden was not justified, Buckley held, because the government could achieve its stated interest (in ensuring that circulators are amenable to legal process in order to police lawbreaking) by requiring that they simply file a statement of residence rather than actually being a registered voter.  Id. at 197.

This holding has been applied in many other cases to strike down registered-voter requirements for initiative circulators, and has been extended to strike the same requirement as applied to petitions for a candidate to get on the ballot.  This year, Congressman John Conyers successfully advanced this argument to force Michigan election officials to place him on the primary ballot after initially being declared ineligible because some of his circulators turned out to have not been registered voters.  Moore v. Johnson, 14-cv-11903 (E.D. Mich. May 23, 2014).

[Interestingly, Gov. Rick Perry sued Virginia officials in 2012 seeking to be placed on the presidential primary ballot, arguing that the Virginia law requiring circulators to be registered voters was unconstitutional. See Perry v. Judd, 840 F. Supp. 2d 945 (E.D. Va. 2012), aff'd 471 Fed. App'x. 219 (4th Cir. 2012).   That case was rejected on standing grounds; the court held that Perry was asking it to assume that he would have gathered enough signatures if he hadn't been hindered by the requirement.  The Perry case was distinguished by Moore v. Johnson.]

It is unclear how many petition pages the City Attorney has called invalid due to the determination that the circulator was not a registered Houston voter.  However, it is clear a great number of pages were invalidated for an alleged inability to determine that the circulator had “validly” signed the petition himself.  To the extent that any circulator has been deemed to have not “validly” signed the petition because the circulator was not a Houston registered voter, such determination is unconstitutional under Buckley, and those pages would be reinstated.  But the issue may be even broader than that.  The text of the circulator statement–provided in the charter itself (art. VIIa, sec. 3)–does not make any distinction between circulators who are registered Houston voters and those who are not.  All circulators are required to affirm they signed the petition.  If it’s unconstitutional to require a circulator to be a registered Houston voter, it’s unconstitutional to require circulators to affirm that they signed a petition which they are only eligible to sign if they are a Houston voter.  The circulator statement may be facially invalid, unenforceable to the extent it requires any circulator to affirm they signed the petition.

A hearing is scheduled for Aug. 15.  As of now, the plaintiffs’ petition alleges that the City Secretary has already validated the petition as sufficient and that interference from the City Attorney’s office does not excuse the city from following through with the consequences of certification.  The petition doesn’t specifically challenge the substantive validity of the circulator requirement.  But I suspect it will come up at the hearing.