Catholic Leadership Coal. Texas v. Reisman

• Citation: 764 F.3d 409
• Decision Date: 12 August 2014
• Docket Number: No. 13–50582.,13–50582.
• Parties: CATHOLIC LEADERSHIP COALITION OF TEXAS, doing business as Texas Leadership Coalition; Texas Leadership Coalition–Institute for Public Advocacy; Friends of SAFA Texas; Texas Freedom PAC, Plaintiffs–Appellants v. David A. REISMAN, In his official capacity as Executive Director of the Texas Ethics Commission; Hugh C. Akin, In his official capacity as a member of the Texas Ethics Commission; Tom Harrison, In his official capacity as a member of the Texas Ethics Commission; Jim Clancy, In his official capacity as a member of the Texas Ethics Commission; Paul W. Hobby, In his official capacity as a member of the Texas Ethics Commission; Bob Long, In his official capacity as a member of the Texas Ethics Commission; Paula M. Mendoza, In her official capacity as a member of the Texas Ethics Commission; Tom Ramsay, In his official capacity as a member of the Texas Ethics Commission; Chase Untermeyer, In his official capacity as a member of the Texas Ethics Commission; Susan Reed, In her official capacity as District Attorney for Bexar County, Texas, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

764 F.3d 409

CATHOLIC LEADERSHIP COALITION OF TEXAS, doing business as Texas Leadership Coalition; Texas Leadership Coalition–Institute for Public Advocacy; Friends of SAFA Texas; Texas Freedom PAC, Plaintiffs–Appellants
v.
David A. REISMAN, In his official capacity as Executive Director of the Texas Ethics Commission; Hugh C. Akin, In his official capacity as a member of the Texas Ethics Commission; Tom Harrison, In his official capacity as a member of the Texas Ethics Commission; Jim Clancy, In his official capacity as a member of the Texas Ethics Commission; Paul W. Hobby, In his official capacity as a member of the Texas Ethics Commission; Bob Long, In his official capacity as a member of the Texas Ethics Commission; Paula M. Mendoza, In her official capacity as a member of the Texas Ethics Commission; Tom Ramsay, In his official capacity as a member of the Texas Ethics Commission; Chase Untermeyer, In his official capacity as a member of the Texas Ethics Commission; Susan Reed, In her official capacity as District Attorney for Bexar County, Texas, Defendants–Appellees.

No. 13–50582.

United States Court of Appeals,
Fifth Circuit.

Aug. 12, 2014.

Held Unconstitutional

V.T.C.A., Election Code §§ 253.037(a)(1, 2)

[764 F.3d 413]

Jerad Wayne Najvar, Esq. (argued), Najvar Law Firm, Houston, TX, Stephen M. Hoersting, Dayton, OH, for Plaintiffs–Appellants.

Andrew S. Oldham (argued), Deputy Solicitor General, Evan Scott Greene, Office of the Attorney General, Office of the Solicitor General, Angela Veronica Colmenero, Esq., Assistant Attorney General, Erika M. Kane, Assistant Attorney General, Office of the Attorney General, Austin, TX, Susan A. Bowen, Assistant District Attorney, District Attorney's Office, San Antonio, TX for Defendants–Appellees.

Appeal from the United States District Court for the Western District of Texas.
Before BARKSDALE, CLEMENT, and OWEN, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge: ^*

To form a “general-purpose committee”—a type of political action committee devoted to promoting a particular point of view—in Texas, a group of persons must appoint a committee treasurer and register with the Texas Election Commission. The nascent general-purpose committee must then collect contributions from ten contributors, and wait sixty days before exceeding $500 in contributions and expenditures. And even after collecting contributions from ten donors and waiting sixty days, the political committee is forever barred from accepting corporate contributions unless

[764 F.3d 414]

the committee solely engages in independent expenditures.

Plaintiffs–Appellants, three general-purpose political committees and one nonprofit corporation, raise facial and as-applied First Amendment challenges ¹ to the treasurer-appointment requirement, the ten-contributor requirement, and the 60–day, 500–dollar contribution and expenditure limit. One of the general-purpose committees and the nonprofit corporation also bring a First Amendment challenge to the corporate contribution ban as-applied to a proposed contribution of an email contact list from the nonprofit corporation to the general-purpose committee. The general-purpose committee avers that the email contact list will only be used in support of independent expenditures.

The district court, after determining that the case was not moot, upheld the constitutionality of all of the challenged provisions of the Texas Election Code on cross-motions for summary judgment. We now hold that the treasurer-appointment requirement and the corporate contribution ban are constitutional. However, we conclude that the 60–day, 500–dollar contribution and expenditure limit as well as the ten-contributor requirement are facially unconstitutional under the First Amendment. We therefore AFFIRM IN PART; REVERSE and RENDER IN PART; and REMAND for further proceedings consistent with this opinion.

I. A.

Because this appeal concerns the intersection of various limitations on the behavior of, and permissible donations to, political committees in Texas, we first review the relevant definitions and regulations in the Texas Election Code.

1.

Under Texas law, a political committee is “a group of persons that has as a principal purpose accepting political contributions or making political expenditures.” Tex. Elec.Code § 251.001(12).² The Election Code further distinguishes between two different types of committees: general-purpose committees and specific-purpose committees. A general-purpose committee is a political committee that has “among its principal purposes”:

(A) supporting or opposing:

(i) two or more candidates who are unidentified or are seeking offices that are unknown; or

(ii) one or more measures that are unidentified; or

(B) assisting two or more officeholders who are unidentified.

Tex. Elec.Code § 251.001(14). A political committee that is dedicated to supporting candidates of a particular point of view ( e.g., pro-life or pro-choice candidates) is a general-purpose committee because the committee's fidelity lies with the committee's particular perspective rather than any specific candidates.³ In such circumstances, the candidates supported by the committee are formally considered to be “unidentified” because candidates can gain

[764 F.3d 415]

or lose the committee's support depending on their policy positions.⁴ Finally, for the purpose of determining general-purpose committee status, all that matters is that some of the committee's activities qualify as the activities of a general-purpose committee.⁵

Texas law contrasts general-purpose committees with specific-purpose committees. Specific-purpose committees are defined in opposition to a general-purpose committee—they are those committees that do “not have among its principal purposes those of a general-purpose committee,” but rather have as a “primary purpose”:

(A) supporting or opposing one or more:

(i) candidates, all of whom are identified and are seeking offices that are known; or

(ii) measures, all of which are identified;

(B) assisting one or more officeholders, all of whom are identified; or

(C) supporting or opposing only one candidate who is unidentified or who is seeking an office that is unknown.

Tex. Elec.Code § 251.001(13). Committees supporting or opposing a particular candidate ( e.g., Friends of Jefferson Smith, Opponents of Joseph Paine) named in the committee's disclosures to the Texas Ethics Commissions constitute specific-purpose committees.⁶

Texas also has two broad categories of political spending: contributions and expenditures. A contribution is “a direct or indirect transfer of money, goods, services, or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a transfer.” Id. § 251.001(2). A “political contribution” includes both campaign contributions—contributions that are “offered or given with the intent that it be used in connection with a campaign for elective office or on a measure,” regardless of when the contribution is made, id. § 251.001(3)—and officeholder contributions—contributions that are “offered or given with the intent that it be used to defray expenses that: (A) are incurred by the officeholder in performing a duty or engaging in an activity in connection with the office; and (B) are not reimbursable with public money.” Id. § 251.001(4); see also id. § 251.001(5) (defining political contribution). Donations to either a candidate or a political committee (whether general-purpose or specific-purpose) count as contributions. See id. § 251.001(3)-(4).

Meanwhile, an expenditure is “a payment of money or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a payment.” Id. § 251.001(6).⁷ And, as with the definition of “political contribution,” a “political expenditure” includes both “officeholder” expenditures and “campaign” expenditures. Id. § 251.001(10).

[764 F.3d 416]

• An officeholder expenditure is an “expenditure made by any person to defray expenses that: (A) are incurred by an officeholder in performing a duty or engaging in an activity in connection with the office; and (B) are not reimbursable with public money.” Id. § 251.001(9).

• A “campaign expenditure” is “an expenditure made by any person in connection with a campaign for an elective office or on a measure,” regardless of when it was made. Id. § 251.001(7).

In addition, Texas further denotes what will be an important subset of campaign expenditures: “direct campaign expenditures.” Under Texas law, a “direct campaign expenditure” is “a campaign expenditure that does not constitute a campaign contribution by the person making the expenditure.” Id. § 251.001(8). Thus only expenditures made without the prior consent or approval of a candidate for office constitute “direct campaign expenditures” (otherwise, the expenditure would also count as a political contribution). Accordingly, the Texas Supreme Court has explained that “direct campaign expenditures” constitute the equivalent of “independent expenditures” under federal campaign finance law. See Osterberg v. Peca, 12 S.W.3d 31, 36 n. 2 (Tex.2000). This opinion will refer to direct campaign expenditures as independent expenditures in order to avoid confusion.

2.

The Texas Election Code regulates the formation of general-purpose committees. Chief among the provisions governing the formation of general-purpose committees is Texas Election Code § 253.037(a). Section 253.037(a) provides that:

A general-purpose committee may not knowingly make or authorize a political contribution or political expenditure unless the committee has:

(1) filed its campaign treasurer appointment not later than the 60th day before the date the contribution or expenditure is made; and

(2) accepted political contributions from at least 10 persons.

In addition to § 253.037(a), Texas Election Code § 253.031(b) provides that:

A political committee may not knowingly...