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

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.