SB 346 Violates the First Amendment and Favors Labor

There is a bill in the Lege that will burden free speech and give labor unions a leg up on all other political groups in the state.  SB 346 needs to die.  It was passed without much attention through the Senate and is now in the House, and will be considered in a State Affairs hearing Wednesday (in the afternoon).  But as attention has increased so has the controversy. See Jay Root’s article in the Tribune yesterday.

The bill would basically expand the legal definition of “political committee” to capture more groups and require them to report the name, address, and other information with respect to persons who donate more than $1,000 to the group. At first glance, that sounds innocuous. But it is entirely unnecessary given the current definitions in the Election Code.  It would also impose a substantial burden on many nonprofits and chill free speech.

It is totally unnecessary because Texas already has an incredibly broad “political committee” definition.  Any group of two or more persons is a “political committee” if they have “a principal purpose” of accepting political contributions or making political expenditures.  Without diving into the legalese, this means if you solicit contributions from your friends to use toward an election advertisement, you and your friends are already required to report who the money came from and what it paid for.  But the bill reaches out to grab groups that “do not meet the political committee definition.” What is the take-home? If this bill passes, nobody will be able to tell for certain who is regulated, and donations to many nonprofits and membership organizations would be chilled.

But there is a more glaring issue. While nobody can say for sure who is covered, we at least know who isn’t.  Labor unions are specifically excluded.

This line-drawing favoring a single class of speaker in the electoral system is blatantly unconstitutional. The Supreme Court said recently that “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”  Citizens United v. FEC, 130 S. Ct. 876, 898-99 (2010).  This is not a new principle; it is fundamental to the First Amendment.  Government cannot pick winners and losers in the political process. Any such legislative line-drawing must be independently justified, even apart from justifying the additional recordkeeping and reporting burden imposed on nonprofits that admittedly are not “political committees” under Texas’s already broad definition. The Lege would have to explain why it had a compelling reason to exclude labor unions. This bill is unconstitutional even without the carve-out; but the carve-out for labor makes it worse. And it’s impossible to explain, given that if any non-political-committees are overtly political, it is certainly labor unions.

Unions are increasingly agitating for Democrats. Want evidence? Watchdogwire reported this month that the local Heights IBEW hosted the first organizational meeting held in Houston by Battleground Texas—the group established by a former Obama campaign operative with the express goal of turning Texas blue. In fact, Battleground Texas apparently has specific plans to work with and through labor unions for its partisan goals. See Williamson County Conservative blog post.

This bill’s unconstitutional line-drawing is a legal problem for sure. It is unconstitutionally vague, it purports to regulate groups that may not be regulated, and it is not appropriately targeted. But it’s also a political problem for conservatives, because the law would favor labor unions over everybody else. It should not move out of committee.

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  1. Pingback: SB 346 Approved by State Affairs | Lex Politico

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