Catholic Leadership Coalition of Texas et al v. Reisman et al

Filing 68

ORDER GRANTING 60 Motion for Summary Judgment; GRANTING 61 Motion to Dismiss ; DENYING 62 Motion for Summary Judgment. Signed by Judge Sam Sparks. (dm)

HLED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAf3 MAY 30
AUSTIN DIVISION

f

CEX

WESTEc

CATHOLIC LEADERSHIP COALITION OF
TEXAS dlb/a Texas Leadership Coalition, et al.,
Plaintiffs,

BY

DiSic

3:58
r COURT
OF TEXAS

iErtjT

Case No. A-12-CA-566-SS
DAVID A. REISMAN, in his official capacity as

Executive Director
Commission, et at.,

of the

Texas

Ethics

Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Defendants Hugh Akin, Jim Clancy, Tom Harrison, Paul Hobby, Bob Long, Paula
Mendoza, Tom Ramsay, David Reisman, and Chase Untermeyer (collectively, the TEC

Defendants)'s Motion for Summary Judgment [#60], Plaintiffs Catholic Leadership Coalition of
Texas, Texas Leadership Coalition-Institute for Public Advocacy, Friends of SAFA Texas, and

Texas Freedom PAC's Response [#64], and the TEC Defendants' Reply [#67]; Plaintiffs' Motion
for Summary Judgment [#62], the TEC Defendants' Response [#63], and Plaintiffs' Reply [#66];

and Defendant Bexar County Criminal District Attorney Susan Reed's Second Motion to Dismiss
or, in the alternative, Motion for Summary Judgment [#6 1], and Plaintiffs' Response [#65]. Having

reviewed the documents, the governing law, and the file as a whole, the Court now enters the

following opinion and orders.

/

Background
Plaintiffs filed this suit to challenge the constitutionality of various campaign finance laws
in the state of Texas. Although the statutes themselves are fairly straightforward, they are mired in
the language of election law and thus require considerable description before they are fully

intelligible. Similarly, though Plaintiffs are all interested in influencing Texas politics, the manner
the Plaintiffs have chosen to use differ somewhat, and therefore also require explanation. The Court
turns first to the statutes which form the basis of Plaintiffs' complaint, and then to the Plaintiffs

themselves.
I.

Statutory Scheme
The challenged statutes, all portions of the Texas Election Code, include (1) a number of

registration, reporting, and disclosure requirements imposed upon certain political committees, and
(2) specific restrictions on certain political contributions by corporations.
A.

Reporting and Disclosure Requirements
Texas Election Code section 253.037(a) provides:
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.
TEX. ELEC. CODE § 253.037(a).

The statute's appearance is deceptive, as nearly every word or phrase

used is defined elsewhere in the Texas Election Code, with some definitions themselves involving

other specially defined terms. Related to section 253.037(a), and also a subject of this lawsuit, is
section 253.031(b), which provides:
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A political committee may not knowingly accept political contributions totaling more
than $500 or make or authorize political expenditures totaling more than $500 at a
time when a campaign treasurer appointment for the committee is not in effect.
Id. § 253.031(b). These two statutory provisions thus regulate particular groups ("political

committees") by restricting the way those groups can receive and spend funds ("political
contributions" and "political expenditures").

Turning first to the particular groups, the Texas Election Code defines a "political
committee" as "a group of persons that has as a principal purpose accepting political contributions
or making political expenditures."Id.

§

25 1.001(12). Political committees are further broken down

with more tailored definitions of "specific-purpose committee" and "general-purpose committee."
A general-purpose committee is defined as:

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.
Id.

§

251.001(14). Building on this definition, a specific-purpose committee is defined as:
a political committee that does not have among its principal purposes those of a
general-purpose committee but does have among its principal purposes:
(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;

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(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.
Id. § 251.001(13). Regardless

of which form a political committee takes, it may not accept political

contributions, or make political expenditures, totaling more than $500 unless it has designated a
campaign treasurer. Id.

§

253.03 1(b), 252.001.

A "political contribution" is defined as "a campaign contribution or an officeholder

contribution." Id.

§

251.001(5). A "campaign contribution" is "a contribution to a candidate or

political committee that is 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. § 25 1.001(3). An "officeholder contribution" is "a contribution to an officeholder or political

committee that is 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).'

A "political expenditure" follows the trend, and is defined as "a campaign expenditure or an

officeholder expenditure." Id.

§

251.001(10). 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 the expenditure is made. Id.

§

25 1.001(7). 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

Of course, the word "contribution" as it is used in these various definitions is itself further defined in part as:
"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." 1x. ELEC. CODE § 25 1.001(2).
1

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money." Id.

§

251.001 (9).2 The expenditure category also includes a third member, the "direct

campaign expenditure," which is defined as "a campaign expenditure that does not constitute a
campaign contribution by the person making the expenditure." Id.

§

251 .001(8).

Combining these various definitions, a general-purpose committee is required to appoint a
campaign treasurer before it is allowed to receive or spend more than $500 in political contributions
or political expenditures. The campaign treasurer is charged with maintaining "a record of all

reportable activity." Id.

§

254.00 1(b). For example, general-purpose committees must file, through

their campaign treasurer, semiannual reports identifying the candidates and measures supported or
opposed by the committee, the names of contributors who donated more than $50, and information
on the committee's political expenditures. Id.

§

254.031, .151, .153. If the general-purpose

committee is involved in an election, the campaign treasurer must also file additional reports thirty
days and eight days before the election. Id.

§

254.154. Large contributions or expenditures made

within nine days of an election also trigger next-day reporting requirements. Id.

§

254.03 9.

In addition to the campaign treasurer appointment requirement, the Texas Election Code
imposes two further burdens on a general-purpose committee before it is allowed to receive or spend

more than $500. First, the committee must wait sixty days from the day it files its campaign treasurer

appointment. Id.

§

253.037(a)(1). Second, the committee must accept political contributions from

"Expenditure" is also defined as "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).
2

' A "direct campaign expenditure" in Texas is the equivalent of an "independent expenditure" under federal
law. Osterberg v. Peca, 12 S.W.3d 31, 36 n.2 (Tex. 2000) ("What Chapter 253 defines as a 'direct campaign
expenditure' corresponds with what the Federal Election Campaign Act and United States Supreme Court call an
'independent expenditure.").

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at least ten persons. Id.

§

253.03 7(a)(2). Violating section 253.037(a) is a Class A misdemeanor, and

may also result in criminal and civil penalties. Id.
B.

§

253.037(d), .134.

Corporate Contribution Restrictions
Section 253.094(a) reads: "A corporation or labor organization may not make a political

contribution that is not authorized by this subchapter." Id.

§

253.094(a). Drawing on the same

definitions recounted above, this section generally prohibits corporations from transferring money
(or any other thing of value) directly to a candidate or a political committee in connection with a

campaign for elective office. Violating section 253.094(a) is a third degree felony. Id.

§

253.094(c).

Section 253.094(a) previously prohibited corporate political expenditures as well, but the Texas

legislature removed all references to political expenditures after this Court ordered them stricken as

unconstitutional in light ofthe United States Supreme Court's decision in Citizens Unitedv. Federal
Election Commission, 558 U.S. 310 (2010). See Tex. Mun. Police Ass 'n v. Tex. Ethics Comm 'n, No.
A-08-CA-741-SS, slip op. at 16-17 (W.D. Tex. Oct. 29, 2010).

II.

Plaintiffs
Plaintiffs are various Texas organizations interesting in influencing Texas politics, either

directly or through associated political committees. Catholic Leadership Coalition of Texas, which
operates as the Texas Leadership Coalition (TLC), is a 501(c)(4) "social welfare" nonprofit based
in San Antonio, Texas. TLC describes its mission as "develop[ing] resources and opportunities to
inform Catholics about the moral precepts of the Church pertaining to their responsibilities as

Catholic voters." 2d Am. Compl. [#49] ¶ 10. In order to retain tax-exempt status under the Internal

Revenue Code, TLC must limit the amount of direct political advocacy it engages in. It therefore

spawned the Texas Leadership Coalition-Institute for Public Advocacy (TLC-IPA), a political
committee, to support or oppose candidates based on issues important to TLC.
TLC-JPA is a general-purpose committee under Texas law. When this lawsuit was initially
filed, TLC-IPA was interested in financially supporting candidates in a 2012 Texas primary runoff
election, but was prohibited from doing so by the 60-day, 10-contributor requirements in section

253.037(a). TLC-IPA is also interested in giving money directly to candidates, and has done so in
the past. Def.'s Mot. Summ. J. [#60-5], Ex. B (Sevilla Depo.), at 88:3-9, 98-99, 101:19-22.

Plaintiff Friends of SAFA Texas (FOSAFA) is also a general-purpose committee. FOSAFA
is the political committee created by the San Antonio Family Association (SAFA) in order to

preserve SAFA's tax-exempt status. Like TLC-IPA, FOSAFA was prohibited from participating in
the 2012 primary runoff election by the 60-day, 10-contributor requirements. Also like TLC-IPA,

FOSAFA desired to give money directly to candidates. Id. [#60-6], Ex. C (Von Dohlen Depo.), at

41:18-23.
Plaintiff Texas Freedom PAC is also a general-purpose committee, formed to contribute inkind professional campaign services to local candidates, and to recruit candidates for local and state

elections. Like the other Plaintiffs, Texas Freedom was prohibited by section 253.037(a) from
spending funds immediately after it registered in June 2012.

III.

Procedural History
Plaintiffs filed this suit on June 28, 2012, seeking a preliminary injunction against the

enforcement of the challenged provisions of the Texas Election Code, which would have allowed

them to spend funds in the days leading up to the July 31, 2012 primary runoff election. This Court

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denied the motion. Order of July 20, 2012 [#32]. Plaintiffs immediately appealed, but the Fifth
Circuit affirmed, as it was "unpersuaded that there is a likelihood of success on the merits of

[Plaintiffs'] First Amendment challenge to the sixty-day waiting period in
§

TEx. ELEC. CODE

253.037(a)(1)." Catholic Leadership Coal. of Tex. v. Reisman,No. 12-50732, slip op. at2 (5th Cir.

July 25, 2012). The parties have now completed their discovery, and have filed cross-motions for
summary judgment.

Analysis
I.

Motions for Summary JudgmentLegal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact and

that the moving party is entitled to judgment as a matter of law.
v.

FED. R.

Civ. P. 56(a); Celotex Corp.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007).

A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could

return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court

"may not make credibility determinations or weigh the evidence" in ruling on a motion for summary

judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477
U.S. at 254-55.

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Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party's case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to

defeat a motion for summary judgment Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are

not competent summary judgment evidence. Id. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence

supports his claim. Adams

v.

Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).

Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to

support the nonmovant's opposition to the motion for summary judgment. Id. "Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the

entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues that are "irrelevant
and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If
the nonmoving party fails to make a showing sufficient to establish the existence of an element

essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23. The parties agree there are no factual disputes at this stage,
as the issues before the Court are purely legal questions.

II.

Application
Plaintiffs have raised both facial and as-applied challenges to the Texas Election Code

provisions at issue in this case. In the First Amendment context, the overbreadth doctrine holds "a

statute is facially invalid if it prohibits a substantial amount of protected speech." United States v.
Williams, 553 U.S. 285,292 (2008). The United States Supreme Court has recognized "invalidating

a law that in some of its applications is perfectly constitutional.. . has obvious harmful effects," and

therefore requires "a statute's overbreadth be substantial, not only in an absolute sense, but also
relative to the statute's plainly legitimate sweep." Id. "Invalidation for overbreadth is strong

medicine that is not to be casually employed." Id. at 293 (internal quotation marks omitted); see also

Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 762 (5th Cir. 2008) ("Facial challenges to the
constitutionality of statutes should be granted 'sparingly and only as a last resort,' so as-applied
challenges are preferred." (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973))).
Regardless of the form Plaintiffs' challenges take, both sides offer a variety of arguments

against and in support of the statute. First, the TEC Defendants contend much of this case is moot

because the elections Plaintiffs wished to influence have already occurred and Plaintiffs now meet
the 60-day, 10-contributor requirements for all future elections. Second, Plaintiffs argue section
253.037(a) is an unconstitutional prior restraint on political speech and association. Third, Plaintiffs
argue section 253.037(a) is an impermissible restriction on political contributions. Fourth, Plaintiffs

contend section 253.037(a) is similarly unconstitutional to the extent it restricts political
expenditures. Fifth, Plaintiffs challenge section 253.03 7(a)(2)' s ten-contributor requirement, arguing

it amounts to forced political association. Finally, Plaintiffs argue section 253.094(a)'s prohibition
on corporate contributions is unconstitutional as applied to TLC and TLC-IPA.

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A.

Mootness
The mootness doctrine, sometimes referred to as "the doctrine of standing in a time frame,"4

reflects the need for litigants to present an actual, live controversy to the court at all times during the
pendency of the lawsuit. Ctr.

for Individual Freedom v. Carmouche, 449 F.3d 655,

2006) (quoting United States Parole Comm 'n

v.

661 (5th Cir.

Geraghty, 445 U.S. 388, 397 (1980)). The TEC

Defendants contend there is no longer a live controversy between the parties with respect to section
253.037(a) because all the Plaintiffs have now had their campaign treasurer appointments on file for
sixty days and have accepted contributions from at least ten persons, meaning the statute will not

prohibit them from engaging in advocacy in any future election.
There is a well-established exception to the mootness doctrine for "disputes capable of

repetition, yet evading review." Davis v. FEC, 554 U.S. 724, 735 (2008) (internal quotation marks
omitted). This exception "applies where (1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same

complaining party will be subject to the same action again." Id. (internal quotation marks omitted).
The Court finds this exception applicable in this case.

With respect to the first requirement, "[c]ontroversy surrounding election laws, including
campaign finance regulations, is one ofthe paradigmatic circumstances in which the Supreme Court
has found that full litigation can never be completed before the precise controversy (a particular

election) has run its course." Carmouche, 449 F.3d at 661. For this reason, the Fifth Circuit has

'

But see Friends of the Earth, Inc. v. Laidlaw Envt'l Sen's. (TOC), Inc., 528 U.S. 167, 190 (2000) ("{I]f
mootness were simply 'standing set in a time frame,' the exception to mootness that arises when the defendant's allegedly
unlawful activity is 'capable of repetition, yet evading review,' could not exist.").

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specifically noted cases "challenging the validity of state election laws are classic examples of cases
in which the issues are capable of repetition, yet evading review." Id. (internal quotation marks

omitted). This case is a fine illustration: Plaintiffs filed a lawsuit challenging a 60-day waiting period

within sixty days of an election. It would be a truly extraordinary case which could travel from initial
complaint to resolution on the merits in under two months. See Davis, 554 U.S. at 735 ("similarly,
in this case despite [the statute's] mandate to expedite and Davis' request that his case be resolved

before the [2006] general election season commenced, Davis' case could not be resolved before the
2006 election concluded, demonstrating that his claims are capable of evading review."); FEC v.
Wis.

Right to Life, Inc., 551 U.S. 449,462-63 (2007) (WRTL) (despite statutory mandate to expedite

review, challenge to election law could not be resolved before election concluded).

Taken at face value, the second prong of the exceptiona reasonable expectation Plaintiffs
themselves will be affected by these statutes in the

futurewould admittedly be a difficult, if not

outright impossible, hurdle for these Plaintiffs to clear. But as the Fifth Circuit has recognized, the
United States Supreme Court "does not always focus on whether a particular plaintiff is likely to
incur the same injury." Carmouche, 449 F.3d at 662. There are numerous examples of the Court
rejecting mootness challenges to election laws on the basis of future injury to nonparties. See, e.g.,

Storer

v.

Brown, 415 U.S. 724, 737 n.8 (1974) ("The 1972 election is long over, and no effective

relief can be provided to the candidates or voters, but this case is not moot, since the issues properly
presented, and their effects on independent candidacies, will persist as the California statutes are
applied in future elections."); Dunn

v.

Blumstein, 405 U.S. 330, 333 n.2 (1972) (affirming district

court's rejection of a mootness challenge, noting "[a]lthough appellee now can vote, the problem to

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voters posed by the Tennessee residence requirements is capable of repetition, yet evading review"
(internal quotation marks omitted)).

Carmouche itself followed the same approach. There, the Center for Individual Freedom had
challenged Louisiana's Campaign Finance Disclosure Act as violative of the First Amendment.

Carmouche, 449 F.3d at 658. Before the Fifth Circuit could rule, the election the Center wished to
influence through its speech passed. While the Fifth Circuit recognized the Center's representation
it intended to participate in future elections in Louisiana, the court held the case would not have been

moot "even if it were doubtful that the Center would again attempt to engage in election-related
speech in Louisiana

.

.

.

because other individuals certainly will be affected by the continuing

existence of the CFDA." Id. at 662.

If there is any doubt left as to the applicability of the capable of repetition, yet evading review
exception, this Court's previous rulings involving the TEC should dispel it. For example, this Court

rejected a similar mootness defense advanced against a previous challenge to section 25 3.094 in the
wake of Citizens United. See Tex. Mun. Police Ass 'n v. Tex. Ethics Comm 'n, No. A-08-CA-741-SS,
slip op. at 7-10 (W.D. Tex. Oct. 29, 2010). Additionally, in this very case, the Court previously

noted the specter of mootness lurking in the background of Defendant Susan Reed's motion to

dismiss, and held the case was not moot because of the capable of repetition, yet evading review
exception. Order of Jan. 10, 2013 [#58], at 7-8. There have been no material changes in this case
since January, and the Court's conclusion remains the same.

Finally, virtually all the policy considerations driving the mootness doctrine counsel in favor

of resolving this case rather than dismissing it. As the United States Supreme Court has noted, "by

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the time mootness is an issue, the case has been brought and litigated, often (as here) for years. To

abandon the case at an advanced stage may prove more wasteful than frugal." Friends ofthe Earth,
Inc.

v.

Laidlaw Envt '1 Servs. (TOC), Inc., 528 U.S. 167, 191-92 (2000); see also Honig v. Doe, 484

U.s. 305, 330-32 (1988) (Rehnquist, C.J., concurring) (discussing the pragmatic history of the
capable of repetition, yet evading review exception). To dismiss this case as moot after both parties

have completed discovery and filed haifa dozen briefs on the merits of the constitutional challenge

would be wasteful, and would also deprive the numerous other political committees across the state

of an opportunity for clarity in the challenged provisions of the Texas Election Code. The Court
therefore finds this case is not moot.
B.

Prior Restraint
Plaintiffs argue section 253.037(a)'s registration and disclosure requirements impose three

independently impermissible prior restraints on political speech: (1) general-purpose committees are
not allowed to engage in speech until they can find and appoint a campaign treasurer; (2) once a

treasurer is appointed, the general-purpose committee must then wait sixty days; and (3) the generalpurpose committee must find at least ten persons to contribute before being allowed to engage in
more than a de minimis amount of political speech. The TEC Defendants counter section

253.037(a)' s requirements simply do not amount to a prior restraint, and attempt to distinguish the
line of cases relied upon by Plaintiffs.

As the United States Supreme Court has described it, "[t]he term prior restraint is used to
describe administrative and judicial orders forbidding certain communications when issued in

advance of the time that such communications are to occur." Alexander

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v.

United States, 509 U.S.

544, 550 (1993) (internal quotation marks and alterations omitted). The Court has listed temporary

restraining orders and permanent injunctions as "classic examples of prior restraints." Id. While a

prior restraint is "not unconstitutional per se," there is "a heavy presumption against its constitutional
validity." Se. Promotions, Ltd.

v.

Conrad, 420 U.S. 546, 558 (1975) (internal quotation marks

omitted).
The prior restraint doctrine is rooted in founding-era concerns over freedom of the press and
government censorship. See Near v. Minn. ex rel. Olson, 283 U.S. 697, 713-15 (1931). Typical prior

restraint cases involve attempts by the government to restrict expression through some discretionary
permitting or licensing scheme, or through the judicial machinery. See, e.g., Neb. Press Ass 'n

v.

Stuart, 427 U.S. 539, 543-44 (1976) (court order prohibiting news media from publishing
information about criminal trial); NY. Times Co.

v.

United States, 403 U.S. 713, 714 (1971)

(government brought suit to enjoin newspaper publication of the Pentagon Papers); Freedman

v.

Maryland, 380 U.S. 51, 52-53 (1965) ("State Board of Censors" required to issue license before any
film could be exhibited); Bantam Books

v.

Sullivan, 372 U.S. 58, 59-61 (1963) (Rhode Island

established board to ban books and periodicals deemed unsuitable for minors); Lovell v. City of

GrfJIn, 303 U.S. 444, 447-48 (1938) (city ordinance requiring permit from city manager to
distribute printed material); Near, 283 U.S. at 701-02 (state law prohibiting publication of

"scandalous" newspapers).
The critical difference between section 253.037(a) and the vast majority ofthe United States

Supreme Court's prior restraint cases should be immediately apparent. Section 253.037(a) does not

require political committees to seek a license or permit, nor must such committees be "approved"

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by any authority figure. Rather, the statute requires general-purpose committees to appoint a

campaign treasurer of their choosing, wait sixty days, and collect contributions from ten persons

before receiving or spending more than $500. All general-purpose committees are subject to the
same requirements. Injunctions and restraining orders lie at the heart of the prior restraint doctrine,

Alexander, 509 U.S. at 550, but this case involves neither.
Rather than rely on these core prior restraint cases, which tellingly have little in common with
the statutes challenged here, Plaintiffs invoke two other cases they believe demonstrate the

unconstitutionality ofregistration requirements like the one contained in section 253.037(a). The first
involved a Texas law requiring labor organizers to obtain an "organizer's card"essentially a

licensebefore they were allowed to solicit new members. Thomas v. Collins, 323 U.S. 516, 518
(1945). The United States Supreme Court found the licensing scheme unconstitutional, holding "a

requirement that one must register before he undertakes to make a public speech to enlist support
for a lawful movement is quite incompatible with the requirements of the First Amendment." Id. at
540. The second involved an Ohio law requiring individual citizens to seek "Solicitation Permits"

before going door-to-door and promoting any cause. Watchtower Bible & Tract Soc 'y ofN Y., Inc.
v. Vill. ofStratton,

536 U.S. 150, 154-56 (2002). Even though the permits were universally granted

to all applicants, the Court struck down the measure, scoffing at the idea "that in the context of

everyday public discourse a citizen must first inform the government of her desire to speak to her

neighbors and then obtain a permit to do so." Id. at 166.

Neither of these cases helps Plaintiffs build a case against the statute at issue here. The
primary difference between the statutes at issue in Thomas and Watchtower Bible and section

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253.037(a) is the scope of the statutes themselves. In both of those cases, individuals were
completely prohibited from speakingat least on certain topicswithout first obtaining permission

from some governmental body. In Texas, individuals remain free to speak at will about matters of
political interest to them. Nothing in section 253.037(a) prevents the individual members of a
general-purpose committee from speaking out in favor of a candidate or against a ballot measure.
Those individuals are also free to donate to candidates, subject perhaps to various federal and state
campaign finance restrictions not at issue here. Even the core Plaintiff-related groupsfor example,
TLC and SAFA, rather than their political

spin-offsare free to speak without any registration

whatsoever. TLC and SAFA can take full advantage of the freedom afforded them by Citizens United
and make large donations from their corporate coffers. The fact they cannot do so without losing

their coveted tax-exempt status is of no importance to the constitutionality of section 253.037(a).
In addition to these general forms of political speech, Plaintiffs here could also have formed

specific-purpose committees to support individual candidates or ballot measures. Specific-purpose
committees are not subject to section 253.037(a)'s three requirements. Even the general-purpose
committees are free to speak once the campaign treasurer has been appointed, provided the
committees do not spend more than $500. Given the proliferation of social media platforms and
other inexpensive communication avenues, the practical amount of speech a general-purpose
committee could produce while spending less than $500 is likely significant.
The other crucial difference between this case and Thomas, Watchtower Bible, and a number

of the core prior restraint cases listed above, is the absence of any "petty official" making
determinations as to whether Plaintiffs' speech will be allowed. See Watchtower Bible, 536 U.S. at

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167. General-purpose committees are required to file a document appointing a campaign treasurer.

This registration requirement involves no discretion whatsoever; in fact, it does not even involve a

government decision maker. Further distinguishing this case is the fact Plaintiffs are never required
to submit their actual speech for review. There is no board of censors reviewing Plaintiffs'

advertisements, no city official scrutinizing their topics of conversation, and no licensing body
demanding to know which cause they seek to champion. See Rosario v. Rockefeller, 410 U.S. 752,
762 (1973) (political-party registration requirement "did not prohibit the petitioners from

voting.. . [i]t merely imposed a legitimate time limitation on their enrollment, which they chose to
disregard"). When combined with the universal application of section 253.03 7(a)'s requirements,
the core policy motivating the prior restraint doctrinethe fear of government censorshipis wholly

absent in this case. See Thomas

v.

City ofChic., 534 U.S. 316,322(2002) (upholding content-neutral

licensing scheme requiring individuals to seek permits from the Park District if a public gathering
is going to exceed fifty participants).

The purpose of section 253.037(a) is also relevant to the analysis, and confirms the statute
is not a prior restraint. See Id. (discussing the legitimate, content-neutral purposes of the licensing

scheme). The legislative history confirms section 253.037(a) was adopted in part to address a

problem the Texas legislature had identified with the "[l]ast minute formation of general-purpose
political committees for the purpose ofavoiding filing requirements." Def. '5 Mot. Summ. J. [#60-3],
Ex. A-3 (Bill Analysis of SB 1068, 69th R.S. (1985)). Registering a campaign treasurerand thus

identifying a responsible party to submit the numerous reports required by the Texas Election

Codesupports the Texas Election Code's larger disclosure scheme. The United States Supreme

-18-

Court itself recognized disclosure requirements can be sufficiently important to overcome First
Amendment concerns, because disclosure requirements keep the electorate informed, deter
corruption and the appearance of corruption, and enable regulators to enforce laws limiting campaign

spending in various ways. See Buckley v. Valeo, 424 U.S. 1, 66-68 (1976); see also Corsi v. Elecs.
Comm'n, 981 N.E.2d 919, 925 (Ohio Ct. App. 2012) (upholding state reporting and disclosure

requirements imposed on political action committees, including the requirement to designate a
treasurer).
In summary, the Court finds section 253.037(a) does not constitute a prior restraint in

violation of the First Amendment. The statute does not prevent anyone from speaking; rather, it
enables a disclosure and reporting scheme designed to promote the legitimate governmental interests

repeatedly recognized by the United States Supreme Court. Moreover, because section 253 .037(a)'s

requirements are unlike the licensing or permitting requirements prevalent in so many prior restraint
cases, there is no fear of censorship as a result of the statute's trio of requirements. If political

speakers in Texas wish to avail themselves of the special benefits of a general-purpose committee,

they must comply with three simple rules. Those rules do not amount to a prior restraint.
C.

Contribution and Expenditure Limits
Plaintiffs argue section 253.037(a), by virtue of its three requirements, effectively bans

general-purpose committees from accepting political contributions and making political
expenditures, and therefore violates the First Amendment. The TEC Defendants construe section

253.037(a) not as a contribution or expenditure ban, but rather as a disclosure obligation. The TEC

-19-

Defendants also analogize Texas's scheme to similar schemes used at the federal level and approved

of by the United States Supreme Court.
1.

Standard of Review
The first question for the Court is what level of scrutiny to apply to section 253.037(a). To

the extent the statute bans political expenditures, it is subject to strict scrutiny, which means the
Government must "prove that the restriction furthers a compelling interest and is narrowly tailored
to achieve that interest." Citizens United, 558 U.S. at 340 (internal quotation marks omitted). By

contrast, contribution restrictions are subject to "the lesser demand of being closely drawn to match
a sufficiently important interest." FEC v. Beaumont, 539 U.S. 146, 162 (2003) (internal quotation

marks omitted); see also id. at 161 ("Going back to Buckley

v.

Valeo,

. . .

restrictions on political

contributions have been treated as merely 'marginal' speech restrictions subject to relatively
complaisant review under the First Amendment, because contributions lie closer to the edges than
to the core of political expression.").

There is, however, a third option in this case. If section 253.037(a) is not a contribution or
expenditure ban at all, neither standard recited above is applicable. If the statute is instead treated
as a disclosure requirement, the standard

of review becomes "exacting scrutiny," which "requires

a 'substantial relation' between the disclosure requirement and a 'sufficiently important'

governmental interest." Doe v. Reed, 130 5. Ct. 2811, 2818 (2010) (quoting Citizens United, 558
U.S. at 366).

-20-

For the reasons stated below, the Court concludes section 253.037(a) is in essence a
disclosure obligation, not a contribution or expenditure ban. Applying exacting scrutiny, the Court

finds section 253.037(a) is constitutional.
2.

Section 253.037(a) as a Disclosure Obligation
As the United States Supreme Court explained in Citizens United, "[d]isclaimer and

disclosure requirements may burden the ability to speak, but they 'impose no ceiling on campaignrelated activities,' Buckley, 424 U.S. at 64

McConnell

[v.

.

.

.

and 'do not prevent anyone from speaking,'

FEC, 540 U.S. 93, 201 (2003)1 (internal quotation marks and bracket omitted)." 558

U.S. at 366. Both characteristics are true of section 253.037(a) and its three requirements.

Appointing a campaign treasurer, waiting sixty days, and collecting contributions from ten donors
does not impose a ceiling of any sort on Plaintiffs' campaign activities. To the contrary, once those

requirements are satisfied, general-purpose committees in Texas are free to engage in as much
speech as they want.5 Section 253.037(a) also does not prevent anyone from speaking. As discussed
in some detail above, would-be political speakers in Texas have a variety of avenues available to

them to engage in political speech without forming a general-purpose committee, from engaging in
individual speech (whether by actually speaking or by spending money) to forming specific-purpose

committees, which are not subject to the sixty-day, ten-contributor limits.

In fact, general-purpose committees may be able to engage in more speech than specific-purpose committees,
because specific-purpose committees may be subject to additional contribution limitations. See TEX. ELEC. CODE
§ 253 .034(a)(3) (prohibition on political contributionsto specific-purpose committees"supporting, opposing, or assisting
a statewide officeholder or member of the legislature" within thirty days of a regular legislative session, and for twenty
days following the adjournment of such a session); id. § 253.153(a) (similar requirement for specific committees related
to judicial candidates).

-21-

The lines of cases relied upon by the parties bear out this distinction. Plaintiffs have built

their case against section 253.037(a) on the back of Citizens United and its progeny, but those cases
dealt with outright bans or monetary caps on contributions or expenditures. See Citizens United, 558
U.S. at 365-66 (invalidating statute banning independent expenditures by corporations); Davis, 554
U.S. at 742-44 (invalidating "Millionaire's Amendment," which raised contribution and expenditure

limits for candidates whose opponents spent more than $350,000 of their own money); WRTL, 551
U.S. at 477-82 (invalidating statute banning corporations from paying for any "electioneering

communication"); Randall v. Sorrell, 548 U.S. 230, 262 (2006) (invalidating both contribution and
expenditure limits); Cob. Republican Fed. Campaign Comm.

v.

FEC, 518 U.S. 604,614-15 (1996)

(invalidating monetary cap on independent expenditures); Buckley, 424 U.S. at 35-39,

5 1-58

(upholding ceilings on contributions, but invalidating caps on expenditures). Section 253.037(a) does
not impose any limits on either contributions or expenditures.6
Cases involving disclosure obligations have been more forgiving, frequently upholding the

various requirements imposed on would-be political speakers. See Citizens United, 558 U.S. at

368-71 (upholding disclaimer and disclosure requirements); Buckley, 424 U.S. at 84 (upholding
disclosure and reporting requirements). Even in the wake of Citizens United, disclosure and reporting
requirements have routinely withstood constitutional challenges. See, e.g., Ctr. for Individual

Freedom v. Madigan, 697 F.3d 464,490(7th Cir. 2012) (upholding disclosure requirements, noting
"[t]he need for an effective and comprehensive disclosure system is especially valuable after Citizens

most, one could argue section 253.037(a) places a temporary cap of $500 on contributions and expenditures
while a general-purpose committee waits sixty days and finds ten contributors. The Court fmds this
distinctiontemporary versus permanentto be significant, especially in light of other available avenues for political
speech and the fact a general-purpose committee can be formed well in advance of an election.

-22-

Unitecf'); Nat'l Org.

for Marriage

v.

McKee, 649 F.3d 34, 56-61 (1st Cir. 2011) (upholding

registration, reporting, and record-keeping requirements); Human Life of Wash. Inc.

v.

Brumsickle,

624 F.3d 990, 1013 (9th Cir. 2010) (upholding registration and reporting requirements);
to Ljfe Comm., Inc.

v.

Vt.

Right

Sorrell, 875 F. Supp. 2d 376, 396 (D. Vt. 2012) (upholding disclosure

requirements, including requirement to designate a campaign treasurer); Corsi, 981 N.E.2d at 925
(upholding similar requirements because they "do not prohibit the [plaintiffj from expressing its
views").
Admittedly, there are distinctions to be drawn between section 25 3.037(a) and either category
described above. Section 253.037(a) does not impose caps or bans on expenditures like so many of

the statutes the United States Supreme Court has invalidated, but it does unquestionably impose

some limitation on speech during the sixty-day waiting period. Unlike some invalidated statutes,
however, general-purpose committees can fully control the timing of the sixty-day window by
choosing when to designate their campaign treasurer, so the problem of government silencing speech
during a particular time frame (e.g., twenty-one days before an election) is absent. Texas's statute
is also not directly analogous to the disclosure line of cases cited above, as those cases generally

involved challenges to the actual reporting requirements, rather than the registration obligations

making those reporting requirements possible.
The summary judgment record compels the Court to view section 253.037(a) as an anti-

circumvention provision designed to make enforcement of the Texas Election Code's various
disclosure obligations possible. Like the disclosure provision upheld in Buckley, section 253.037(a)
is "responsive to the legitimate fear that efforts would be made, as they had been made in the past,

-23-

to avoid the disclosure requirements." 424 U.S. at 76 (footnote omitted). The legislative history

reveals the statute was in part a direct response to the efforts of some to avoid previous reporting

requirements by registering as a general-purpose committee at the last minute. Def 's Mot. Summ.
J. [#60-3], Ex. A-3 (Bill Analysis

of SB 1068, 69thR.S. (1985));

id. [#60-4], Ex. A-4 (Bill Analysis

of SB 42, 68th R.S. (1983)). The Texas statute therefore "facilitates the enforcement of the
disclosure provisions" by ensuring all general-purpose committees have identified a responsible

party to handle their reporting requirements, and have done so in time to satisfy the general-purpose

committee's reporting deadlines. See
3.

Id.

at 84.

Applying Exacting Scrutiny
Having concluded section 253.037(a) is in essence a disclosure requirement, the next

question is whether there is "a 'substantial relation' between the disclosure requirement and a

'sufficiently important' governmental interest." Reed, 130 S. Ct. at 2818 (quoting Citizens United,
558 U.S. at 366). The Court concludes there is, and the statute therefore survives exacting scrutiny

and does not offend the First Amendment.

There are a number of "sufficiently important" governmental interests at stake in this case.
The United States Supreme Court recognized three such interests in Buckley: (1) providing the

electorate with information about the sources of political funds; (2) deterring actual corruption, and
the appearance of corruption, by publicizing large contributions and expenditures and their sources;
and (3) "gathering the data necessary to detect violations" of campaign spending regulations. 424
U.S. at 67-68. These interests were also recognized in Citizens United. 558 U.S. at 368-71.

-24-

Texas's statute bears a substantial relation to these interests. The statute requires the
appointment of a campaign treasurer, which ensures someone within the general-purpose committee
will be responsible for fulfilling the committee's reporting requirements. See

Vt.

Right to Life

Comm., 875 F. Supp. 2d at 396 (upholding treasurer-designation requirement as reasonable and

substantially related to state's interest in transparency). It further requires general-purpose

committees to wait sixty days before expending substantial sums, which prevents the problem the
Texas legislature specifically identified of general-purpose committees forming on the eve of

elections and rapidly spending funds. See McConnell, 540 U.S. at 200 ("Given the relatively short

timeframes in which electioneering communications are made, the interest in assuring that
disclosures are made promptly and in time to provide relevant information to voters is

unquestionably significant."). Moreover, because the general-purpose committees themselves can
control when this sixty-day window occurs, the burden imposed by the waiting period is minimal,
and cannot possibly affect any general-purpose committee more than once. Finally, the statute
requires the general-purpose committee to collect from ten contributors, which ensures the

committee is actually a committee and not merely an individual seeking to disguise his or her

personal contributions. There is no evidence in the record compliance with these requirements is
particularly onerous, expensive, or time

consuming.7

7The Court therefore rejects Plaintiffs' argument their committee status imposes "onerous burdens" on them.
WRTL, 551 U.S. at 477 n.9. Vague references to the Texas Election Code in general are insufficientto establish any real
burden. There are also differences between the federal political action committee (PAC) requirements labeled onerous
by the United States Supreme Court and individual state regulations. See McKee, 649 F.3d at 56 (distinguishing federallaw PACs from Maine PACs, and concluding Maine's registration, reporting, and record-keeping requirements were not
"onerous").

-25-

Plaintiffs argue section 253.037(a) is ill-suited to combating corruption because wealthy
individuals and corporations may spend at will, while groups of individuals are subjected to the

statute's restrictions. While it is true the Buckley court recognized the "right to join together for the
advancement of beliefs and ideas.

. .

is diluted if it does not include the right to pooi money through

contributions," nothing in section 253.037(a)prevents individuals from doing so. 424 U.S. at 65-66
(internal quotation marks and citations omitted). The entire goal of general-purpose committees is
to facilitate the pooling of resources, and a properly registered general-purpose committee is free to

spend money and advance the beliefs of its members. The Texas legislature has determined such

groups are subject to certain unquestionably constitutional disclosure requirements, and must take
three simple steps to ensure those requirements are enforceable. These minor, one-time requirements
do not render section 253.037(a) unconstitutional.

The constitutionality of Texas's scheme is confirmed by reference to the federal scheme for

political action committees (PACs). In Buckley, the Court upheld a federal statute which raised the

contribution ceiling for PACs which had been registered for at least six months and had received
contributions from more than fifty persons. 424 U.S. at 35_36.8 The Court explicitly noted the

statute's "permissible purpose of preventing individuals from evading the applicable contribution
limits by labeling themselves committees." Id. Section 253.037(a) similarly prevents individuals
from evading Texas's campaign finance regulations by registering as committees shortly before

election day.

8

This requirement still exists today. See 2 U.S.C. § 441 a(4) (defining "multicandidate political committee" as
"a political committee which has been registered . . . for a period of not less than 6 months, which has received
contributions from more than 50 persons and. . . has made contributions to 5 or more candidatesfor Federal office").

The circuit court decision in Buckley, which the United States Supreme Court affirmed in

relevant part, provides further support for this idea. The D.C. Circuit held the statute's six-month

registration requirement "does not prevent individuals from drawing together to act as a political
committee at any time." Buckley v. Valeo, 519 F.2d 821, 857 (D.C. Cir. 1975), aff'd in part and
rev 'd in part, 424 U.S.

1

(1976) (emphasis added). Instead, the court viewed the statute as "a

loophole-closing provision intended to prevent proliferation of dummy committees, each of a few
persons, in support of federal candidacies." Id. The same is true of section 253.037(a), which the

Texas legislature specifically conceived of as a loophole-closing provision designed to prevent
general-purpose committees from circumventing the Texas Election Code's reporting requirements.

Just as the United States Supreme Court and the D.C. Circuit upheld this federal registration and
disclosure scheme, this Court upholds Texas's registration and disclosure scheme as implemented

through section 253.037(a).

0.

Ten-Contributor Requirement
Plaintiffs contend section 253.037(a)' s ten-contributor requirement amounts to "forced

political association" by requiring an individual to join with at least nine others before expending
more than $500 through a general-purpose committee. The TEC Defendants counter the ten-

contributor limit, much like the federal fifty-contributor component of multicandidate PACs, is
constitutionally permissible.

"Even a significant interference with protected rights of political association may be
sustained ifthe State demonstrates a sufficiently important interest and employs means closely drawn
to avoid unnecessary abridgment of associational freedoms." Buckley, 424 U.S. at 25 (internal

-27-

quotation marks omitted). Section 253.037(a)(2) easily meets this burden. First, there are a number

of sufficiently important interests at stake here: those generally identified in Buckley as the
government's interests in promoting a transparent campaign finance system.
Second, Texas's solution is closely drawn. The requirement is a direct response to a problem
the Texas legislature identified with last-minute general-purpose committees. Buckley recognized
a similar problem with circumvention of disclosure requirements has existed at the federal level

since shortly after the first federal disclosure law was enacted in 1910. See 424 U.S. at 61-62.

General-purpose committees are by their very nature opaque organizations: they need not identify
particular candidates or ballot measures they wish to support, and can therefore expend funds in
support of numerous different initiatives in any given election cycle. By contrast, specific-purpose
committees are necessarily targeted at specific candidates or measures. Section 253 .037(a)(2)'s tencontributor requirementa requirement which does not apply to specific-purpose committeesthus

reflects the need to ensure these potentially wide-ranging general-purpose committees are actual
committees.9

To the extent two individuals wish to band together to support an extraordinarily

unpopular candidate or cause for which they cannot find eight other supporters, they remain free to
form a specific-purpose committee.

Plaintiffs reliance on Free Market Foundation v. Reisman, 540 F. Supp. 2d 751 (W.D. Tex.
2008), is misplaced. In Free Market Foundation, the plaintiffs challenged a provision of the Texas

Election Code "forbid{ding] individuals from making any independent expenditures to influence the

Whether ten contributors is the appropriate threshold is a question for the legislature, not this Court. Cf
(deferring to Congress's chosen contribution ceiling because "a court has no scalpel to probe,
whether, say, a $2,000 ceiling might not serve as well as $1,000" (internal quotation marks omitted)).

Buckley, 424 U.S. at 30

-28-

election for Speaker" of the Texas House of Representatives, subject to two narrow exceptions. Id.
at 757. The court granted a preliminary injunction, finding the statute infringed plaintiffs'

associational rights by forcing them to associate with particular "Speaker candidates" in order to
speak about the Speaker election. Id. at 758. This ban on independent expenditures was of dubious

constitutional stature even in 2008.

See

id.

at 757 (noting the United States "Supreme Court has

'routinely struck down limitations on independent expenditures" (quoting Cob.

Republican,

533

U.S. at 441)).

Section 253.037(a)(2) imposes no such obligation. Most importantly, it is not a ban on
independent expenditures, as discussed above. Additionally, if two individuals wish to speak in favor

of or against a particular candidate, such as a candidate for Speaker of the Texas House of
Representatives, they may form a specific-purpose committee and do so, and will not be subject to
section 253.03 7(a)(2)' s ten-contributor requirement. The disclosure requirements imposed on

specific-purpose committees provide sufficient safeguards to inform the voting public about the
source of the committee's speech. If those same two individuals instead want to form a general-

purpose committee, by definition a committee not supporting any identified candidate and therefore
far less transparent, they must find ten contributors if they wish to receive or spend more than $500.

Given the numerous other avenues open for political speech, including the formation of a
specific-purpose committee of as few as two like-minded individuals, the burden imposed on

Plaintiffs' associational rights by section 253.037(a)(2) is minimal.10 Moreover, Texas has chosen

10

Tellingly, no Plaintiff in this case has provided any evidence it had difficulty meethlg the ten-contributor
requirement. It was generally the sixty-day waiting period, not the contributor requirement, which delayed these
Plaintiffs' speech.

-29-

to limit access oniy to one specific form ofpolitical committee, an organization entitling its members
to special benefits not available to individuals. In order to access those benefits, general-purpose

committees must be actual committees made up of multiple individuals.' Texas chose ten

contributors as an appropriate limit, and its choice was not unconstitutional.
E.

Corporate Contribution Prohibition
Plaintiff TLC finally argues section 253.094(a) is unconstitutional as applied to TLC and

TLC-IPA. Specifically, TLC wishes to provide TLC-IPA with a contact list, which TLC-IPA would

use to raise funds for direct campaign

expenditures.'2

TLC contends the statute's corporate

contribution ban cannot be justified because "the government has no anti-corruption interest in

limiting contributions to an independent expenditure group." SpeechNow. org v. FEC, 599 F.3d 686,
695 (D.C. Cir. 2010). The TEC Defendants counter Texas may lawfully prohibit corporate

contributions to entities like TLC-IPA who contribute directly to candidates.
As long ago as Buckley, contributions and expenditures have been treated differently.
Beaumont, 539 U.S. at 161. The Fifth Circuit has concluded Citizens United "provides no reason to
change [the] analysis of the validity

of.

. .

contribution limits." In re Cao, 619 F.3d 410, 423 (5th

Cir. 2010); see also United States v. Danielczyk, 683 F.3d 611, 617-19 (4th Cir. 2012) (reaching the

same conclusion). The Court thus analyzes the constitutionality of section 235.094(a) under the

"closely drawn" standard. Beaumont, 539 U.S. at 162.

A group of only two individuals could technically form the general-purpose committee, and even engage in
speech. Only if the general-purpose committee wishes to exceed $500 in contributions or expenditures must it find at
least ten contributors.

U The contact list qualifies as a "contribution" under the statute. See

-30-

TEX. ELEc.

CODE § 251.001(2).

In regulating contributions, the government may invoke two important interests in the wake

of Citizens United: (1) the anti-corruption interest, i.e., the government's interest in preventing actual
quid pro quo corruption, or the appearance of such corruption; and (2) the anti-circumvention
interest, i.e., the government's interest in preventing individuals from evading contribution limits
by funneling money through a corporation. See In re Cao, 619 F.3d at 446; Danielczyk, 683 F.3d at

618-19.
Both of these interests are implicated here. First, the anti-corruption interest is relevant
because corporate contributions to TLC-IPA could be viewed by the public as corporate
contributions to the candidates TLC-IPA supports. Even though TLC-IPA affirms in this Court it
will not use the contact list for anything other than independent expenditures, TLC-IPA admits it has

worked directly with candidates in the past and may do so again in the future, and thus is not an
only" committee. Pl.'s Mot. Summ. J. [#62] at 36. Plaintiffs also admit this fact distinguishes this
case from every authority cited in favor of their position. Second, the anti-circumvention interest is

implicated because corporations could simply donate unlimited funds to such "hybrid" groups and
thereby avoid valid contribution limits placed on the corporation itself. Cf Cal. Med. Ass 'n v. FEC,
453 U.S. 182, 197-98 (1981) (invoking anti-circumvention rationale to uphold contribution

restriction which could otherwise be evaded by channeling funds through multicandidate PACs).
As one district court recently explained the dilemma:

When a single entity is allowed to make both limited direct contributions and
unlimited independent expenditures, keeping the bank accounts for those two
purposes separate is simply insufficient to overcome the appearance that the entity
is in cahoots with the candidates and parties that it coordinates with and supports.
Although such an entity may maintain separate bank accounts, it need not maintain
separate management or hold itself out to the public as engaging in two distinct

-31-

activities. Thus from the perspective of any citizen who does not scrutinize the
entity's bank statements, all of the entity's spending (direct contributions and express
advocacy communications) is coming from the same place. . . . To conclude that a
"hybrid" PAC' s direct contributions to (and attendant coordination with) candidates
and parties do not infect, or appear to infect, all of its operations in the political arena
is naive and simply out of touch with the American public's clear disillusionment
with the massive amounts of private money that have dominated the political system,
particularly since Citizens United.
Stop This Insanity v. FEC,No. 12-1140(BAH), 2012 U.S. Dist. LEXIS 158051, at *56_57(D.D.c.

Nov. 5, 2012).
The danger is even more severe in this case. Even if TLC-IPA maintains separate bank

accounts, there is no way to ensure a list of contactsessentiallyjust informationwill only be used
for independent

expenditures.13

The informational wall TLC-IPA asserts it can raise to keep its

independent expenditure activities entirely separate from its direct campaign contribution activities
is thin at best. This triggers the precise dangers

of corruption, and the appearance of corruption,

which motivated the Court in Buckley to uphold the challenged contribution limits. 424 U.S. at 638.

TLC-IPA's hybrid status is also the reason upholding section 253.094(a) does not conflict
with any of the authorities cited by Plaintiffs in support oftheir argument. As the D.C. Circuit clearly
explained in SpeechNow, "the government has no anti-corruption interest in limiting contributions
to an independent expenditure group." 599 F.3d at 695. Read in light of the newly developed hybrid

PAC idea, what the court meant was "the government has no anti-corruption interest in limiting
contributions to an independent expenditure-only group."4 This makes sense given Citizen United's

The situation is even more absurd where, as here, TLC and TLC-IPA are run by the same individual out of
the same office. Sevilla Depo. at 49:12-17.
13

'

SpeechNow had stated it intended "to operate exclusively through 'independent expenditures." SpeechNow,
F.3d at 689 (emphasis added).
599

-32-

holding independent expenditures pose no corruption threat because independent expenditures by
definition are not coordinated with candidates. See 558 U.S. at 360 ("[I]ndependent expenditures do

not lead to, or create the appearance of, quid pro quo corruption."). But Citizens United's holding
is irrelevant where a group like TLC-IPA engages in both independent and coordinated advocacy.

The fact TLC wishes to contribute information rather than funds only exacerbates the problem,
because information cannot be segregated in a separate account. Even if it could, the public, and even

the TLC contributors on TLC's separate list, could justifiably assume a donation to TLC-IPA could
be used to support the candidates who benefit from TLC-IPA's direct contributions.

The Court therefore finds the authorities cited by Plaintiffs materially distinguishable. See
Wis.

Right to Life State Political Action Comm.

v.

Barland, 664 F.3d 139, 154 (7th Cir. 2011)

(invalidating contribution limit "as applied to organizations, like the Right to Life PAC, that engage
only in independent expenditures for political speech"); SpeechNow, 599 F.3d at 696 (invalidating
contribution limits only "as applied to contributions to SpeechNow, an independent expenditure-only

group"); LongBeach Area Chamber ofCommerce v. City ofLongBeach, 603 F.3d 684,698-99(9th
Cir. 2010) (invalidating contribution limits as applied to "independent expenditures committees");

NC. Right to Life, Inc.

v.

Leake, 344 F.3d 418, 434 (4th Cir. 2003), vacated, 541 U.S. 1007 (2004)

(invalidating contribution limit as applied to "independent expenditure political action committees").
This even holds true for a recent case before this Court, in which Judge Yeakel granted a preliminary

injunction. See Texans for Free Enter.

v.

Reisman, No. A-12-CA-845-LY, slip op. at 10-11 (W.D.

Tex. Dec. 6, 2012), appeal docketed, No. 13-50014 (5th Cir. Jan. 9, 2013) (without "engag[ing] in

a full analysis of all matters," finding a likelihood of success on the merits of a constitutional

-33-

challenge to a contribution limit as applied to a "direct-campaign-expenditure-only political

committee").
Texas has a real interest in regulating corporate contributions in order to prevent corruption
and circumvention of its campaign finance laws. The United States Supreme Court recognized as

much in Colorado Republican: "if a candidate could be assured that donations through a party could
result in funds passed through to him for spending on virtually identical items as his own campaign
funds, a candidate enjoying the patronage of affluent contributors would have a strong incentive not
merely to direct donors to his party, but to promote circumvention as a step toward reducing the

number of donors requiring time-consuming cultivation." 533 U.S. at 460. To avoid this unsavory
state of affairs, the Texas legislature chose to prohibit certain corporate contributions. As applied to
TLC and TLC-IPA, section 253.094(a)'s contribution prohibition is closely drawn to match a

sufficiently important interest, and therefore is not unconstitutional.

Conclusion
The Court concludes sections 253.03 7(a) and 253.094(a) are constitutional as-applied to the

Plaintiffs. The odd nature of the overbreadth doctrine nevertheless makes it necessary to consider

whether the statutes are overbroad even though they do not violate the rights of the parties present
before the Court. See Bd. ofTrs. ofState Univ. ofN. 1'.

v.

Fox, 429 U.S. 469,484 (1989). The Court

therefore considers Plaintiffs' facial challenges, and rejects them. Section 25 3.037(a) applies to all
general-purpose committees equally and without difference, and thus if it is constitutional as-applied
to the Plaintiffs, it is hard to imagine how any

numberlet

alone a substantial

numberof its

applications could be unconstitutional. Section 253.094(a) is slightly different, as the Court's

-34-

conclusion here rests on TLC-IPA' s identity as a "hybrid" PAC. Independent expenditure-only PACs
may counsel a different result. However, on the record before the Court, there is insufficient

evidence to conclude a substantial number of section 253.094(a)' s applications are unconstitutional,
especially when compared to the statute's plainly legitimate sweep encompassing organizations like
TLC-IPA, and the Court therefore rejects Plaintiffs' facial challenge to that statute as well.

Finally, Defendant Susan Reed has also moved for summary judgment, though her motion
cites no authority and simply recites arguments previously rejected by the Court. The rejection of all

Plaintiffs' constitutional challenges to the provisions of the Texas Election Code benefits Reed,
however, because she was included in this case only to prevent her from enforcing any statutory

provisions ruled unconstitutional. Reed's motion for summary judgment will therefore be granted
alongside the TEC Defendants' motion.

Accordingly,
IT IS ORDERED that Defendants Hugh Akin, Jim Clancy, Tom Harrison, Paul
Hobby, Bob Long, Paula Mendoza, Tom Ramsay, David Reisman, and Chase Untermeyer' s

Motion for Summary Judgment [#60] is GRANTED;
IT IS FURTHER ORDERED that Plaintiffs Catholic Leadership Coalition of Texas,

Texas Leadership Coalition-Institute for Public Advocacy, Friends of SAFA Texas, and

Texas Freedom PAC's Motion for Summary Judgment [#62] is DENIED;

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IT IS FiNALLY ORDERED that Defendant Bexar County Criminal District Attorney

Susan Reed's Second Motion to Dismiss or, in the alternative, Motion for Summary
Judgment [#61] is GRANTED.

SIGNED this the

3c'day of May 2013.
S AM S

PAI'2"

UNITED STATES DISTRICT JUDGE

566 cross msj ord 2

kkt.frrn

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