Category Archives: prior restraints

Weslaco Commission candidate Greg Kerr’s campaign signs illegally confiscated at City Hall

Historically, Weslaco city candidates have been allowed to place their signs near the City Hall visitors center before early voting. There was no formal procedure, candidates simply showed up and claimed their spots, and those who arrived earliest got the prime locations. This year, Greg Kerr, who is running against Johnny Cuellar, beat Cuellar to the punch and got a prime spot.  Suddenly, city officials showed up and literally tore down his materials and took them to a city storage location for Kerr to pick up later.  All of a sudden, they claimed the City would institute a new procedure whereby spots would be chosen by a drawing. In other words, Kerr beat Cuellar to the punch, and the drawing would at least give Cuellar the chance to get the spot back.

This all smacks of viewpoint discrimination by the City–enforcing the law selectively to favor one side over another–which is a First Amendment violation.  I sent the following letter to the City on behalf of Mr. Kerr today.

Fifth Circuit to hear oral argument in Texas campaign finance case challenging prior restraint on PACs

The Fifth Circuit has announced that it will set oral argument in Catholic Leadership Coalition, Inc., et al. v. Reisman, et al., the week of April 28.  See the June 2013 press release announcing the appeal here.  NLF represents plaintiffs-appellants.

CLC v. Reisman: Appellants’ Reply Brief opposing Texas’s attempt to justify a 60 day ban on PAC speech

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.

REPLY BRIEF HERE

Catholic Leadership Coalition, Inc. v. Reisman: Texas Ethics Commission files its brief

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.

Conservative Groups File Appeal in Fifth Circuit Challenging Texas PAC “Waiting Period”

FOR IMMEDIATE RELEASE
June 28, 2013
Contact: Jerad Najvar
(281) 404-4696

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.

Catholic Leadership v Reisman: Judge Denies Bexar County DA’s Motion to Dismiss

Catholic Leadership Coalition of Texas v. Reisman is a First Amendment lawsuit brought by three Texas PACs and a related nonprofit to challenge provisions of the Texas Election Code that (i) require all political committees to register with the Ethics Commission before spending more than $500; (ii) require certain types of issue-oriented committees to wait 60 days after registration before spending more than $500; and (iii) prohibit corporations, including nonprofit corporations, from making contributions to support “independent expenditures” that are not coordinated with the benefiting candidate.  This case–and others currently pending in Texas that raise similar claims–will be closely followed on this blog. [Disclosure: I am representing the plaintiffs in Catholic Leadership.]

While a more complete discussion will be posted soon, the latest: the court issued an order Jan 10 denying a motion to dismiss filed by Bexar County DA Susan Reed. The court’s order includes a brief discussion concluding that plaintiffs’ standing remains intact, even though the relevant election has already passed. Pretty straightforward application of Fifth Circuit and Supreme Court precedent regarding standing in the election context.

The case is in the US District Court for the Western District of Texas, Austin Division.