This Breitbart Texas story on the recently-filed lawsuit by Empower Texans against the TEC links to last year’s Lex Politico post explaining the ill-conceived (and ultimately vetoed) SB 346, which would have regulated nonprofits as political committees but excepted labor unions.
The arguments made by the State of Texas, attempting to defend section 253.037(a) of the Election Code, are truly remarkable and borderline frivolous. The provision requires any group organized based on common principle (instead of, for example, fidelity to an identified candidate) to (a) register, (b) collect contributions from ten persons, and (c) wait 60 days, all before spending more than $500 even on their own, independent speech (“independent expenditures” in constitutional jargon). The State’s arguments are, thankfully, entirely foreclosed by decades of Supreme Court precedent. But they deserve more attention and discussion, and this blog will delve into them more deeply and explain just how dim a view at least some attorneys at the Texas Attorney General’s office have of the First Amendment rights of Texans to organize for political advocacy.
In a nutshell, Texas is arguing that the plaintiffs before the Fifth Circuit (three “general purpose” political committees and a nonprofit 501(c)(4)) have no business complaining about a waiting period on their speech, because Texas generously affords multiple “choices” for the exercise of First Amendment rights, and plaintiffs should have either spent money through a nonprofit organization or registered as “specific purpose” committees to support identified candidates. Appellants’ reply brief responds to these dubious arguments.
In Catholic Leadership Coalition, Inc. v. Reisman (background here), the Attorney General’s office filed its brief for appellee David Reisman and the other members of the Texas Ethics Commission on December 5, arguing, among other things, that Texas PACs can be required to wait 60 days after registering with the State before spending any money (at least, any in excess of $500). NLF’s brief on behalf of appellants (three Texas general purpose committees and one 501(c)(4), namely the Catholic Leadership Coalition, Texas Leadership Institute for Public Advocacy, Friends of SAFA Texas, and Texas Freedom PAC), arguing that the First Amendment prohibits such prior restraints on speech, is here.
Appellants’ reply brief is due December 23.
This notice, a reminder regarding potential pre-election reports due in regard to the Nov. 5 special election for House District 50, was posted on the TEC’s website today and emailed around to filers. It contains a glaring error.
The notice says that both the 30-Day and 8-Day pre-election reports must be filed “even if there was no activity during the reporting period.” However, that is never true for pre-election reports. 30 and 8 Day reports are only required from PACs and candidates who have activity to report related to the election. See Texas Election Code sections 254.124 (SPACs); 254.154 (GPACs); 254.064 (opposed candidates).
I called the TEC this morning and suggested they issue a correction so that people who are already burdened enough by the minutiae of Texas campaign finance reporting are not put through the unnecessary trouble of either filing unnecessary reports or having to call the TEC themselves to confirm that the email is in error. I expect they’ll post a correction.
Mike Morris of the Houston Chronicle with a story about the role of “specific purpose committees” in Houston municipal races.
FOR IMMEDIATE RELEASE
June 28, 2013
Contact: Jerad Najvar
HOUSTON – Four separate conservative groups have filed an appeal with the United States Court of Appeals for the Fifth Circuit, seeking to invalidate several Texas laws imposing draconian and unconstitutional restrictions on their political activities.
Three of the plaintiffs are “general purpose” political committees under Texas law. These are groups that share common principles and form with the purpose of pooling their resources to support and oppose candidates based on those principles. The central issue in the lawsuit is a challenge to Texas Election Code section 253.037(a), which demands that before any such group can spend more than $500, it must jump through three bureaucratic hurdles: (i) register with the state; (ii) collect contributions from ten persons; and (iii) wait 60 days. The law prevents expenditures for everything from political contributions to fully independent political advertisements.
All three groups planned to communicate with 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. The lawsuit, which names the TEC and the Bexar County District Attorney as defendants, challenges section 253.037(a) as a facially unconstitutional prior restraint on core political speech.
In May, the federal district court in Austin granted summary judgment for the defendants. The court characterized the statute as a mere “disclosure” law, stating that it did not actually limit political spending because plaintiffs had alternate avenues of communication during the waiting period. For example, the court suggested plaintiffs could have spoken through “inexpensive” “social media platforms” without exceeding $500.
“The State can define a group of people as a political committee and require reporting,” said plaintiffs’ attorney Jerad Najvar, “but it can never actually ban speech, not for a moment and certainly not for 60 days. Speech about politics and candidates is at the very core of the First Amendment, and this law stifles spontaneous activity by grassroots groups. It has been unconstitutional since the day it was passed in 1987, and we are confident the Court of Appeals will vindicate our arguments.”
As to the ten-contributor requirement, Najvar said: “It is beyond me why the Legislature thought they could silence two people who have a message, unless and until they convince eight others to join the cause. Two people acting together have just as much right to share a message as a group of ten or a hundred people.”
The lawsuit also challenges Texas Election Code section 253.094(a), the state’s general prohibition on corporate contributions, to the extent it prohibits an incorporated nonprofit from lending its contact list to a political committee for distribution of “independent expenditure” ads. In this case, the ban has prevented a nonprofit Catholic organization from lending its contact list to an associated PAC.
Plaintiffs in the case, 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
The case is Catholic Leadership Coalition of Texas, Inc. v. Reisman, No. 12-cv-566, filed in the Western District of Texas in June 2012. Plaintiffs’ notice of appeal was filed June 27, 2013.
DISTRICT COURT’S ORDER HERE: 20130531 ORDER granting and denying summary judgment.
Governor Rick Perry just vetoed SB 219, which was the Ethics Commission sunset bill but also contained many objectionable provisions. Perry’s objections were as follows:
SB 219 contains several important changes to the state’s ethics laws, especially those relating to the sworn complaint process. However, these positive changes are outweighed by several provisions added late in the legislative process without an open and honest discussion.
The last-minute addition of a resign-to-run requirement for members of the Railroad Commission would change the structure of a constitutional agency without the consent of Texas voters. Any effort to amend a constitutional office should go to a vote of the people.
This bill would also strip a journalist’s testimonial privilege if the journalist has made direct political expenditures, or is affiliated with entities that make such expenditures.
SB 219 also allows the Ethics Commission to set an annual document filing fee for candidates and groups who file campaign finance reports. Candidates should not be charged for participating in a process intended to be transparent, to pay for a state agency. The legislature should continue to set the fee to run for office in a transparent and open way, rather than leave that to a state agency.
The Legislature had an opportunity, through the Sunset review process, to make needed changes to our campaign finance, lobby and financial disclosure laws – changes that are needed to modernize laws while still protecting our rights and providing for transparency. I urge the Legislature to look closely at our ethics laws during the interim in an open, deliberative and transparent way, so that all voices are heard and all proposals are thoroughly discussed.
I wrote previously about the problems with the “resign to run” provision targeting the Railroad Commission alone (see here and here), the new free speech tax (document filing fee), and the unnecessarily onerous broadcast disclosure provisions. Perry cited another curious provision that I hadn’t gotten around to writing about yet: the removal of the testimonial privilege for certain journalists. I’ll follow up with more analysis. This bill was loaded with ridiculous provisions demonstrating a lack of respect for free speech and association.
Free speech tax
The bill would amend Election Code section 251.003 to require an annual fee payable to the Ethics Commission by almost all filers (this includes candidates and all political committees). The premise behind disclosure requirements is that the public at large benefits by knowing who is spending money. The groups engaging in advocacy are the only ones in a position to file reports of money coming in and going out, so it’s a necessary evil that they be burdened with filing obligations. But recognize that this takes time and money away from their efforts. They should not be taxed–in addition to the compliance costs already absorbed–for engaging in core political activities. We should be encouraging more folks to engage in the process, not slapping them with a free speech tax.
New disclosure requirements for broadcast ads
SB 219 includes more detailed disclaimer requirements for political ads (see pages 56-57 of the enrolled version). Everyone can agree that as a general matter, disclosure of campaign finances is healthy and necessary in terms of informing the electorate. But disclosure laws impose real burdens on speech, and therefore they must be appropriately tailored so as to do the least damage possible to fundamental rights while achieving their legitimate informational goals.
The new disclosure requirements applicable to television and radio ads will rob candidates and political committees of valuable time and resources, without achieving anything meaningful. Under current law, any “political advertising” in any medium is required to include a statement substantially similar to the following: “Political ad paid for by X.” A floor amendment added in the House requires that any TV ad containing “express advocacy” and authorized by a candidate carry an image of the candidate, and a “written statement” identifying the candidate and stating that the candidate has approved the ad. The kicker is that the statement and image must appear “at the end of the communication for not less than four seconds.” TV ads done independently (i.e., not authorized by a candidate) are not required to display an image, but must carry the same four-second written statement identifying the individual or group paying for it. So the new bill requires a specific four-second duration and, in the case of ads by candidates, requires an image of the candidate. (These requirements were offered in slightly different form in HB 1398, but didn’t make it out of committee.)
Think about this in terms of the scarce resources of campaigns and political groups. Four seconds is 13% of a 30-second ad (the typical duration of an election ad). This can amount to thousands of dollars for each ad buy. Many campaigns also buy 15-second ads, but the law still requires a full four-second presentation of the candidate’s image and written statement. In that case, the government is taking over 27% of the ad time. These precious seconds cost money and rob time from the communication. I suppose it’s possible to display the image of the candidate and the written statement on only a portion of the screen, such that the other content of the ad can continue to the end, at the same time as the disclosure. But this will depend on the Ethics Commission’s application of the requirement that the image be “clearly identifiable.” How much of the screen must it occupy to meet that standard? Current law already requires a written statement, and this is sufficient to inform viewers. Is anybody really confused by ads that display a written statement but lack an image? Or by a written statement that lasts one or two seconds, rather than four?
Ironically, this new requirement provides a rare example of incumbents disadvantaging themselves in comparison to “outside groups.” TV ads not authorized by a candidate must only display the written statement, but no image.
Regarding radio ads, the amendment would require that the spoken “paid for by” statement be recorded by the candidate or representative of the group paying for the ad. This may seem minor in most instances, but it also could prevent spontaneous ad buys if a group cannot get the statement recorded in their own voice in time. It is often necessary to respond immediately to a claim made by an opponent, or to some pressing issue, and requirements like this can act as practical obstacles to speech. There is nothing wrong with a statement in the same voice as the rest of the ad.
It seems to me these amendments add nothing to enhance disclosure, but will impose substantial costs on candidates and PACs by conscripting large chunks of every ad buy.
[Update: I just received a copy of a letter by the American Association of Political Consultants opposing HB 1398 earlier this month. (See here: AAPC_Duncan) They write that the new requirement threatens to “overwhelm the campaign message itself.”]
[Update2: coverage by the Dallas Morning News’ Trailblazers blog here]
Social media ad disclosure
The new requirements for social media sites seem reasonable for the most part, and the Lege should get credit for excepting text messages. However, the bill requires that in the case of social media sites, the disclosure statement appear in a “printed box” on the profile page. This, I think, is impossible on Facebook or Twitter, etc. There is an exception for social media advertisements that are “too small” to permit compliance with the requirement, in which case you can simply include a link to a separate page containing the appropriate disclaimer in full. I assume the Ethics Commission will have to interpret this provision to apply to a social media profile page that does not permit the user to include a “printed box.”