Free Market Foundation v. Reisman
| Decision Date | 26 February 2008 |
| Docket Number | No. A-08-CA-116-SS.,A-08-CA-116-SS. |
| Citation | 540 F.Supp.2d 751 |
| Parties | FREE MARKET FOUNDATION, et al., Plaintiffs, v. David A. REISMAN, et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
James C. Ho, Lawrence J.C. VanDyke, Gavin S. Martinson, Gibson, Dunn & Crutcher LLP, Dallas, TX, Hiram S. Sasser, III, of counsel, Liberty Legal Institute, Plano, TX, Lisa Graybill, of counsel, ACLU Foundation of Texas, Austin, TX, for Plaintiffs.
Greg Abbott, Kent C. Sullivan, David S. Morales, Robert B. O'Keefe, James B. Eccles, Office of the Attorney General, Austin, TX, for Defendants.
Robert J. Davis, Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P., Dallas, TX, for John Roach.
ORDER GRANTING PRELIMINARY INJUNCTION
BE IT REMEMBERED that on the 26th day of February, 2008, the Court held a hearing in the above-styled cause and the parties appeared through counsel. Before the Court were Plaintiffs' Motion for Preliminary Injunction [# 3], Defendants' Response thereto [# 32], and Plaintiffs' Reply in Support of the Motion for Preliminary Injunction [# 33]. Having considered these documents, the arguments of counsel at the hearing, the applicable law, and the case file as a whole, the Court GRANTS the motion for preliminary injunctive relief for the reasons that follow.
In 1972, the Speaker of the Texas House of Representatives, Gus Mutscher, Jr., was convicted of conspiracy to accept a bribe in exchange for using his influence to pass certain legislation. See Mutscher v. State, 514 S.W.2d 905, 909 (Tex.Crim.App.1974), for a discussion of the events surrounding Mutscher's conviction. In the wake of the "Sharpstown scandal," as the conspiracy came to be known, the Texas legislature passed a series of laws intended to prevent such corruption in the future. Among the reform bills were certain campaign finance restrictions related to the selection of the Speaker. Texas Government Code Sections 302.17 and 302.019 are two of these measures.
These statutes have gone unchallenged since they were enacted in 1973. In the current election year, however, several groups and individuals assert the restrictions on campaign finance related to Speaker elections violate the First Amendment. Plaintiffs Kelly Shackleford, David Broiles, the Free Market Foundation, the American Civil Liberties Union of Texas, and the Texas Eagle Forum PAC seek to enjoin the enforcement of Texas Government Code Sections 302.17 and 302.019 alleging the statutes are unconstitutionally overbroad. Plaintiffs sue David Reisman, Raymond Davenport, III, Wilhelmina Delco, Ross Fischer, Jim Graham, Tom Harrison, Paula Mendoza, David Montagne, Nicholas C. Taylor, and John Roach in their respective official capacities as representatives of the Texas Ethics Commission, the District Attorney for Collin County, and "the class of District and County Attorneys in the State of Texas." Mot. Prel. Ind. at 1. The Texas Ethics Commission is the entity responsible for overseeing the campaign finance rules of Chapter 302. See TEX. GOV'T CODE § 302.013. The District and County Attorneys are responsible for prosecuting offenses under this Chapter as Class A misdemeanors. TEX. GOV'T CODE § 302.021.
Texas Government Code Section 302.17, titled "Contributions and Loans from Organizations," states:
(a) Except as provided by Subsection (b), a corporation, partnership, association, firm, union, foundation, committee, club, or other organization or group of persons may not contribute or lend or promise to contribute or lend money or other things of value to a speaker candidate or to any other person, directly or indirectly, to aid or defeat the election of a speaker candidate.
(b) This section does not apply to a loan made in the due course of business to a speaker candidate for campaign purposes by a corporation that is legally engaged in the business of lending money and that has continuously conducted the business for more than one year before making the loan to the speaker candidate.
Plaintiffs assert this broadly worded statute effectively "prohibits any coordinated activity by two or more persons designed to influence a Speaker election," whether in the form of campaign contributions or independent expenditures. Mot. Prel. Inj. at 5. In particular, Plaintiffs assert the statute's ban on contributions to the speaker candidate or any other person not only prohibits direct campaign contributions, but also prohibits independent political activity by organizations, such as "a coordinated call campaign to lobby legislators to vote for a particular candidate for Speaker" or "printing information guides on the candidates for Speaker and distributing those guides to the general public or to other legislators," because these activities would involve paying the phone company or the printing company for services intended to influence the election of the Speaker. Id.
Texas Government Code Section 302.19, titled "Individual Contributions; Campaign Expenditures" sets out what an individual acting alone may do to influence the election for Speaker.
(a) Except as provided by Section 302.017 [] or 302.018 [prohibiting contributions from any elected officer or employee of the executive or judicial branches of state government], an individual other than the speaker candidate may contribute personal services and traveling expenses to aid or defeat a speaker candidate.
(b) An individual other than the speaker candidate may expend a total of not more than $100 for the cost of correspondence to aid or defeat the election of a speaker candidate.
(c) Except as provided by Subsections (a) and (b), all campaign expenditures must be made by the speaker candidate from campaign funds.
Plaintiffs assert these regulations have the effect of allowing unlimited individual contributions to a Speaker candidate's campaign, but prohibiting any individual who is not a candidate for Speaker from making independent expenditures (other than "$100 for the cost of correspondence") regarding the Speaker election. Mot. Prel. Inj. at 8 citing Tex. Atty Gen. Op. H-55 at 3 (1973) ().
Defendants do not dispute Plaintiffs' interpretation of these statutes, but argue the statutes are limited by Texas Government Code Section 302.001. This statute, titled "Election," states "When the House of representatives first convenes in regular session and a quorum is present and has been qualified, the House shall elect a speaker unless a majority of the members present decides to defer the election." On its face, this provision simply establishes the conditions under which the Speaker election will take place. At the hearing, however, counsel for Defendants argued this statute implies a substantive limitation on the scope of Sections 302.017 and 302.019 by defining the term "election", as it is used in these statutes. According to Defendants, the term "election of a speaker candidate" as used in Sections 302.017 and 302.019 refers only to the internal election described in Section 302.001. Therefore, attempts to influence a primary election or a general election by referring to the Speaker's election, Defendants argue, are qualitatively different from attempts to influence the Speaker's election itself and are generally outside the scope of the challenged statutes.
Defendants further argue Sections 302.017 and 302.019 serve a compelling government interest in preventing corruption and creating transparency by "effectively removing external, anonymous monetary influences from the House members' internal vote." Id. at 10. Defendants assert the limitations are not overbroad because, as set forth in Section 302.001, the election of the Speaker is "an internal vote by the 150 members of the House of Representatives," not a general election by the voting public. Resp. at 9. General elections are subject to much more liberal campaign finance rules found in Title 15 of the Texas Election Code. Id. at 6-8. Because the election of the Speaker is a "an internal legislative affair, not a general election," Defendants argue these regulations fall within the legislature's "substantial discretion over its own affairs." Id. at 9.
Plaintiffs dispute that Section 302.001 provides any meaningful limitation on Sections 302.017 and 302.019. First, Plaintiffs argue the plain terms of Sections 302.017 and 302.019 contain no explicit temporal limit and apply broadly to contributions and expenditures for a "speaker candidate." At the hearing, Plaintiffs asserted there are seven declared speaker candidates at the present time, and therefore there is every possibility that political speech regarding these candidates could fall within the scope of the challenged statutes even in the context of the primary or general elections.
Plaintiffs further object that Section 302.001 does not render the Speaker election an "internal matter" in a sense that should insulate it from public debate. Although it is true the general public does not vote for the Speaker, the general public does not cast a vote on any other issue before the legislature either. Plaintiffs assert there is no principled distinction between lobbying with regard to the Speaker election and lobbying for or against a bill pending before the legislature. Reply at 4. Finally, Plaintiffs argue "the criminalization of all speech related to the Speaker's race cannot possibly be narrowly tailored to rooting out corruption, when as [the Texas Election Commission] itself boasts, the Election Code `imposes no dollar limits on the campaign contributions an individual [or political committee] may make to a candidate for the House.'" Reply at 3 (quoting Resp. at 6-7).
Plaintiffs seek a preliminary injunction preventing Defendants from enforcing Texas Government Code Sections 302.17 and 302.19. Plai...
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