Category Archives: aggregate limits

Houston Chronicle: Ruling expected any day on NLF’s challenge to Houston fundraising blackout period

Chronicle reporter Teddy Schleifer has an update on the First Amendment challenge NLF filed in November against the blackout period on fundraising for city offices in Houston (candidates cannot solicit or accept political contributions until February of the year of the election).  A ruling on Gordon’s request for a preliminary injunction–which would permit him to fundraise immediately–is expected any day.  An excerpt:

Gordon and his attorney, campaign finance lawyer Jerad Najvar, sharply disagree, charging that any campaign is feeble and futile until the candidate has the money to execute it.

“A candidate may decide that it would be counterproductive to make sporadic statements via social media before he has amassed enough resources to properly roll out a campaign,” Najvar said in court papers. “This is the kind of tactical decisions that candidates can make with their advisers, without the need for spitballing by government lawyers.”

The current blackout period, they say, is merely a “paternalistic” way for the powerful to insulate themselves from challengers and does little to prevent quid-pro-quo corruption by city officials. In Gordon’s eyes, a contribution is political expression, and Gordon has a constitutional right to serve as the vehicle for his donors’ opinions.

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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“Najvar and Backer: A Supreme Win for Free Speech in Politics”

Opinion piece by myself and Dan Backer that ran in The Washington Times yesterday.  Too many commentators and reporters arrive at the wrong conclusion about McCutcheon because they ask the wrong question:

The question is not, as many commentators have framed it, whether “rich” people should be allowed to make many contributions. The question is whether government has any good reason to limit such activity, or to target any individual or group to restrict their liberty.

“Supreme Court strikes down overall limit on campaign giving”

Washington Times story with a quote from Jerad Najvar, one of McCutcheon’s attorneys, and snippit of video interview.  Quote:

“The court really committed itself to what it already said many times before, in fact since Buckley: that the only government interest that’s sufficient in this area is addressing quid pro quo corruption, and the court in McCutcheon narrowly defines quid pro quo corruption, which means dollars for political favors,” Mr. Najvar said.

“The ACLU and the McCutcheon Case”

HT to the Election Law Blog for linking to these SCOTUSblog posts:

First, SCOTUSblog posted an excerpt of an upcoming ebook on McCutcheon.  The excerpt explains the divisions within the ACLU and between ACLU and its former officials in past campaign finance cases.

Then, ACLU’s Steven Shapiro responded here, with a “rejoinder” from the ebook’s authors.

#McCutcheon opinion watch! ICYMI: Najvar and Backer op-ed on why McCutcheon must win

With each working day at the United States Supreme Court that passes, we get closer to a decision in McCutcheon. It could come tomorrow.  Here is the op-ed by myself and Dan Backer, which originally ran in October, on why a victory for Shaun McCutcheon would be an important victory for the First Amendment in all contexts.

Smart Pieces Regarding #McCutcheon Today by Brad Smith and Democratic Attorney Bob Bauer

Center for Competitive Politics President (and Capital University Law Professor) Brad Smith’s take in the National Review Online: Objecting to the Declaration of Independence?

Democratic election law attorney Bob Bauer’s criticism of Lawrence Lessig’s novel corruption theory appears on Bauer’s blog, More Soft Money Hard Law: “Dependence Corruption” Before the Supreme Court

David Gans of the Constitutional Accountability Center offers an unpersuasive response to Bauer’s criticism here. For starters, even if one completely accepts CAC’s submission that the Founders were focused on so-called “institutional” corruption, not corruption of individuals, it remains to establish how an institution made up of elected individuals becomes corrupt.  There is no answer offered to the central argument in McCutcheon–that no single candidate is corrupted just because another candidate or political committee received an amount-limited contribution.