Filed: Aug. 12, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-50582 Document: 00512731129 Page: 1 Date Filed: 08/12/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 12, 2014 No. 13-50582 Lyle W. Cayce Clerk 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 Direc
Summary: Case: 13-50582 Document: 00512731129 Page: 1 Date Filed: 08/12/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 12, 2014 No. 13-50582 Lyle W. Cayce Clerk 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 Direct..
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Case: 13-50582 Document: 00512731129 Page: 1 Date Filed: 08/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2014
No. 13-50582
Lyle W. Cayce
Clerk
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
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: *
* Judge Barksdale concurs in this opinion with the exception of Section III.B.
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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 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
1 The First Amendment is incorporated against the states via the Due Process Clause
of the Fourteenth Amendment. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 749 n.1 (1976).
2
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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
2See also Tex. Ethics Comm’n, Ethics Advisory Op. No. 242 (1995) (discussing
whether a nonprofit constitutes a political committee).
3
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candidates. 3 In such circumstances, the candidates supported by the
committee are formally considered to be “unidentified” because candidates can
gain 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
3 See generally Tex. Ethics Comm’n, Campaign Finance Guide for Political
Committees 2 (Nov. 2012 Rev.).
4 See id.
5 See id. (“If a political committee engages in any of the activities described in this
section, it is a general-purpose committee, regardless of what else the committee does.”); see
also
id. (“A general-purpose committee devoted to a particular point of view does not become
a specific-purpose committee because it lends support to a particular candidate in an
election.”).
6 Specific-purpose committees may support multiple candidates as long as the
committee’s support of the candidates is properly disclosed.
4
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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).
• 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).
7 It is important not to conceive of expenditures and contributions in opposition to
each other. Rather, contributions are best thought of as a subset of expenditures: all
contributions are expenditures, but not all expenditures are contributions.
5
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• 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:
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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.
The two provisions stand uncomfortably together. Based on the plain text of §
253.037(a) a political committee may engage in no expenditures until a
committee treasurer has been appointed and sixty days have passed. By
contrast, the plain text of § 253.031(b) permits a political committee to engage
in $500 of expenditures before the appointment of a campaign treasurer.
The Texas Ethics Commission resolved the tension between the two
provisions in a 1993 ethics opinion. The Commission reads the two provisions
together to prohibit a general-purpose committee from making or authorizing
“political expenditures totaling more than $500 unless the committee has (1)
filed its campaign treasurer appointment no later than the 60th day before the
date the expenditure is made that causes the total expenditure to exceed $500,
and (2) accepted political contributions from at least 10 persons.” Tex. Ethics
Comm’n, Ethics Advisory Op. No. 161 (1993). Accordingly, at present under
Texas law, there are three prerequisites that a general-purpose committee
must meet before it can fully engage in the political activity otherwise
permitted by law:
• Appoint a committee treasurer (the “treasurer appointment
requirement”). The treasurer plays a central role in ensuring
compliance with Texas’s disclosure requirements.
• Engage in less than an aggregate $500 of political expenditures and
political contributions for a 60-day window after the treasurer is
appointed (the “60-day, 500-dollar limit”). 8 The 60-day, 500-dollar
This limit also applies to expenses for political fundraising. As the Texas Ethics
8
Commission explained, “[a]ny expenditures related to political fundraising, including
7
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limit does not apply to a general-purpose committee affiliated with a
federal multicandidate political committee registered with the
Federal Elections Commission. See Tex. Elec. Code § 253.037(c).
• Receive donations from ten contributors (the “ten-contributor
requirement”).
A violation of these requirements is a Class A misdemeanor under Texas law.
See id. §§ 253.031(f), .037(d).
Texas claims that these restrictions are modeled on the prerequisites for
obtaining federal multicandidate political committee status. In order to be
classified as a multicandidate political committee under federal law, a political
committee must (1) have been registered as a political committee with the FEC
for six months, 9 (2) received contributions from fifty persons, and (3) made
contributions to at least five candidates for federal office. See 2 U.S.C. §
441a(a)(4); 11 C.F.R. § 100.5(e)(3). Once a committee obtains federal
multicandidate committee status, the committee is rewarded with higher base
contribution limits to candidates, parties, and political committees. See 2
U.S.C. § 441a(a)(2).
There are, however, a couple of relevant differences between federal
multicandidate committees and general-purpose committees in Texas. For
example, whereas committees waiting to obtain federal multicandidate
committee status are permitted to engage in unlimited independent
expenditures, 10 Texas limits general-purpose committees to only $500 of
independent expenditures. See Tex. Ethics Comm’n, Ethics Advisory Op. No.
expenditures to hire a person to generate political contributions for the committee, are
political expenditures and are thus subject to the waiting period.” Tex. Ethics Comm’n, Ethics
Advisory Op. No. 177 (1993).
9 See 2 U.S.C. § 433.
10 See Buckley v. Valeo, 424 U.S. 1, 51 (1976); Cal. Med. Ass’n v. FEC,
641 F.2d 619,
624 (9th Cir. 1980) (en banc) (describing effect of Buckley).
8
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161 (1993). Further, whereas federal political committees that do not qualify
as a multicandidate committee are still permitted to engage in contributions
provided that they comply with the base per-candidate, per-party, and per-
committee contribution limits applicable to individual contributors, 11 Texas
limits newly-formed general-purpose committees to an aggregate $500 in
political contributions.
Despite the restrictive limits on general-purpose committees set out by
Texas Election Code § 253.037(a), the committee may generally engage in
unlimited expenditures and contributions once it has complied. 12 And once a
general-purpose committee has complied with § 253.037(a), Texas law also
grants that general-purpose committee certain advantages over specific-
purpose committees. Unlike specific-purpose committees, general-purpose
committees are not required to identify the specific candidates or measures
that the committee supports or opposes. See Tex. Elec. Code § 251.001(14).
And, unlike specific-purpose committees, which are limited in the
contributions they can receive during legislative sessions and judicial elections
in some circumstances, general-purpose committees may continue to receive
contributions. See id. §§ 253.034(a), .153(a). Further, general-purpose and
specific-purpose committees have different disclosure obligations in the nine
days before an election: general-purpose committees have greater reporting
obligations related to independent expenditures than specific-purpose
committees, but specific-purpose committees must report a greater number of
received contributions. Compare
id. § 254.038 (specific-purpose committees),
with
id. § 254.039 (general-purpose committees).
11See McCutcheon v. FEC, 134 S. Ct. 1434, 1442 n.3 (2014) (plurality opinion).
12Texas subjects general-purpose committees to spending limits in judicial elections.
See Tex. Elec. Code § 253.160.
9
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3.
Also at issue are Texas’s restrictions on corporate contributions to
political committees. Under Texas law, “[a] corporation or labor organization
may not make a political contribution that is not authorized by this
subchapter.” Tex. Elec. Code § 253.094(a). Given Texas’s broad definition of
what constitutes a political contribution, corporations are generally prohibited
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.
Despite the general bar on corporate political contributions, corporations
do retain the ability to participate in Texas politics. After Citizens United v.
FEC, 558 U.S. 310 (2010), the Texas Legislature amended the Texas Election
Code to permit corporations to engage in unlimited independent expenditures
directly from corporate funds. See Acts 2011, 82nd Leg. R.S., ch. 1009.
Further, our decision in Texans for Free Enterprise v. Texas Ethics Commission
approved of corporate contributions to independent-expenditure-only
committees. See
732 F.3d 535, 537-38 (5th Cir. 2013).
B.
1.
Plaintiffs-Appellants are various entities seeking to influence Texas
politics.
Catholic Leadership Coalition of Texas, primarily known as the Texas
Leadership Coalition (“TLC”), is a 501(c)(4) nonprofit corporation whose
“mission primarily is to evangelize and to educate the Catholic community with
regards to faith and . . . the teaching[s] of the church.” TLC seeks to “develop
resources and opportunities to inform Catholics about the moral precepts of
the Church pertaining to their responsibilities as Catholic voters.” After the
May 2012 Texas primary elections, TLC believed it needed to move beyond the
10
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education realm and into direct candidate advocacy. On the advice of election
lawyers, TLC decided to form a general-purpose committee to engage in direct
advocacy.
TLC named the new independent entity the Texas Leadership Coalition-
Institute for Public Advocacy (“TLC-IPA”). Plaintiff TLC-IPA registered with
the Texas Ethics Commission on June 7, 2012. Therefore, under Texas law,
TLC-IPA was required to comply with the 60-day, 500-dollar limit until August
6, 2012. Compliance with the 60-day, 500-dollar limit greatly hindered TLC-
IPA’s participation in a July 2012 run-off election. Though during the July
2012 run-off election TLC-IPA sought only to make independent expenditures,
TLC-IPA has since made a few direct contributions to candidates, and may do
so again in the future. Accordingly, TLC-IPA is not an independent-
expenditure-only committee.
TLC wishes to make an in-kind contribution of its email list to TLC-IPA.
TLC-IPA wishes to accept the donation so that it can use TLC’s email list in
support of its independent expenditures. However, TLC is barred by doing so
by Texas’s ban on corporate contributions to committees because TLC-IPA is
not an independent-expenditure-only entity. See Tex. Elec. Code § 253.094(a);
see also Texans for Free Enter., 732 F.3d at 537-38 (holding that Texas cannot
ban corporate contributions to independent-expenditure-only committees).
Plaintiff Friends of SAFA 13 Texas (“FOFSA”) is also a general-purpose
committee. FOFSA was formed to fund both independent expenditures and
contributions to nonfederal candidates. FOFSA registered with the Texas
Ethics Commission on July 19, 2012, and was limited in the political activities
it could perform until the 60-day waiting period expired on September 17,
13 SAFA stands for the San Antonio Family Association. SAFA is a 501(c)(3) nonprofit
organization.
11
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2012. Those requirements precluded FOFSA from engaging in the campaign
activities that it wished to, including fully participating in the July 2012 run-
off election, as well as opposing the legislative efforts and reelection campaign
of then-Mayor Julian Castro.
The final general-purpose committee plaintiff, Texas Freedom,
registered with the Texas Ethics Commission on June 29, 2012. Texas
Freedom wished to contribute campaign services such as phone banking and
blockwalking activities to “Hispanic candidates who adhere to core
conservative values.” Texas Freedom alleges the 60-day, 500-dollar limit
hindered it in its fundraising and organizational efforts, thereby affecting its
ability to fully participate in the 2012 elections.
2.
Plaintiffs-Appellants Texas Leadership Coalition (the 501(c)(4)) and
Texas Leadership Coalition-Institute for Public Advocacy (the general-purpose
committee) filed suit in the Western District of Texas on June 28, 2012. They
sought a preliminary injunction against the enforcement of Section
253.037(a)’s 60-day, 500-dollar limit, Section 253.037(a)’s ten-contributor
requirement, and Section 253.094(a)’s ban on corporate contributions to
committees as applied to the in-kind donation of an email contact list from TLC
to TLC-IPA. Defendants-Appellees are the members of the Texas Ethics
Commission, and Susan Reed, the District Attorney of Bexar County. All are
sued in their official capacities, and will collectively be referred to as “Texas.”
The district court denied the preliminary injunction request, finding that
even though it could not gauge Plaintiffs’ likelihood of success or the possibility
of irreparable harm given the last-minute nature of the preliminary injunction
request, the balance of hardships and the public interest strongly supported
denying an injunction to avoid creating chaos in the Texas campaign finance
system so close to an election. Plaintiffs appealed, and a motions panel of this
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court affirmed. The motions panel noted that “[b]ased on the limited record
before us, we are unpersuaded that there is a likelihood of success on the merits
of Appellants’ First Amendment challenge to the sixty-day waiting period.”
Catholic Leadership Coal. of Tex. v. Reisman, 473 F. App’x 402, 403 (5th Cir.
2012). The panel therefore concluded that “the district court did not abuse its
discretion in denying Appellants’ motion for preliminary injunction.” Id.
After the denial of the preliminary injunction, Plaintiffs twice amended
the complaint to add Friends of SAFA Texas and Texas Freedom as plaintiffs.
The parties cross-moved for summary judgment at the conclusion of discovery.
The district court granted summary judgment for Texas.
The district court’s summary judgment order began by addressing
mootness. Texas argued that Plaintiffs’ challenges to the treasurer-
appointment requirement, the ten-contributor requirement, and the 60-day,
500-dollar limit were moot after the general-purpose committees had
registered with the Ethics Commission, amassed ten contributors, and sixty
days had passed. The court, however, determined that Plaintiffs’ challenges
fit within the “disputes capable of repetition yet evading review” exception to
mootness. The court found that full litigation of the dispute would be
impractical during the 60-day/ten-contributor waiting period, and further held
that the Plaintiffs did not have to prove that they would suffer the same injury
again because this was an election law dispute. Finally, the court noted that
“policy considerations counsel in favor of resolving this case rather than
dismissing it,” because starting the case over again with a different
organization would be wasteful and “would deprive the numerous other
political committees across the state of an opportunity for clarity in the
challenged provisions of the Texas Election Code.”
The district court then turned to the merits of the dispute. The court
first rejected Plaintiffs’ prior restraint arguments. The court distinguished
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Texas’s campaign-finance rules from unconstitutional prior restraints on the
grounds that Texas did not require committees “to seek a license or permit, nor
must such committees be ‘approved’ by any authority figure.” Texas’s rules,
explained the court, were grounded in preventing circumvention of Texas’s
disclosure filing requirements—not licensing speech.
Next came Plaintiffs’ challenges under Buckley v. Valeo, 424 U.S. 1
(1976), to the 60-day, 500-dollar limit and the ten-contributor requirement.
The district court characterized the provisions as measures designed to
prevent circumvention of Texas’s disclosure requirements, and accordingly
chose to apply the level of scrutiny applicable to disclosure regulations when
evaluating the challenged provisions’ constitutionality. In doing so, the district
court declined to apply the even-more-heightened levels of scrutiny applicable
to contribution and expenditure limits.
The court determined that the 60-day, 500-dollar limit and the ten-
contributor requirement withstood constitutional scrutiny. With respect to the
60-day, 500-dollar limit, the court emphasized the extensive alternative
methods of engaging in political speech in Texas. Therefore the court
characterized the 60-day window as a minor burden—particularly given that
by timely registering with the Texas Elections Commission, a general-purpose
committee could determine when the 60-day window occurred. The court
further found the minor burden imposed was well-justified as an
anticircumvention measure that prevented late-forming political committees
from being able to avoid Texas’s disclosure requirements. With respect to the
ten-contributor requirement, the district court determined the requirement
imposed only a minor hurdle and furthered a sufficiently important state
interest because it “ensures the committee is actually a committee and not
merely an individual seeking to disguise his or her personal contributions.”
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After dispatching the Plaintiffs’ Buckley challenges to the 60-day, 500-
dollar limit and the ten-contributor requirement, the district court turned to
the Plaintiffs’ argument that the ten-contributor requirement
unconstitutionally forced association because it required members wanting to
form a general-purpose committee to associate with ten other individuals
before speaking. To determine the constitutionality of the ten-contributor
requirement, the district court examined whether Texas “demonstrate[d] a
sufficiently important interest and employ[ed] means closely drawn to avoid
unnecessary abridgment of associational freedoms.” The court concluded
Texas did: the ten-contributor requirement was closely drawn to ensure that
general-purpose committees were not utilized by small groups of individuals to
evade campaign finance disclosure requirements. Accordingly, the district
court granted summary judgment that the ten-contributor requirement was
constitutional.
Finally, the district court rejected Plaintiffs’ as-applied challenge to the
corporate contribution ban. The court determined that, because the committee
at issue was not an independent expenditure-only committee, Texas had both
an anticorruption and anticircumvention interest in banning corporate
contributions to the committee because unlimited corporate contributions to
the committee would risk quid pro quo corruption or its appearance.
Therefore, the court granted summary judgment for Texas that the corporate
contribution ban was constitutional as-applied to the proposed in-kind
contribution of the email list.
Plaintiffs then filed the instant appeal. Plaintiffs argue that (1) the
district court applied the wrong standard of review in rejecting the Buckley
challenges to the 60-day, 500-dollar limit and the ten-contributor requirement,
and under the proper level of scrutiny both requirements are unconstitutional,
(2) the ten-contributor requirement is unconstitutional because it forces
15
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association, (3) the treasurer-appointment requirement is an unconstitutional
prior restraint, and (4) Texas’s corporate contributions ban to political
committees is unconstitutional as-applied. Texas responds that (1) the district
court erred in determining that the Plaintiffs’ challenges were not moot, and
we lack jurisdiction to consider most of the Plaintiffs’ appeal, and (2) even if
this court were to reach the merits of the Plaintiffs’ challenges, the campaign-
finance regulations at issue are constitutional, and summary judgment was
properly granted.
II.
This court reviews questions of mootness de novo. See, e.g., Ctr. For
Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006). We also
review a district court judgment rendered on cross-motions for summary
judgment de novo. First Colony Life Ins. Co. v. Sanford,
555 F.3d 177, 180 (5th
Cir. 2009). We independently review each motion with its supporting proof.
Id. Summary judgment is proper when the pleadings, the discovery and
disclosure material on file, and any affidavits show that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a).
III.
We address at the outset whether we have jurisdiction to consider all of
the Plaintiffs’ claims of unconstitutionality. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 93-102 (1988). Texas argues most of the case is moot,
and therefore we lack jurisdiction to consider Plaintiffs’ challenges to the 60-
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day, 500-dollar limit, the ten-contributor requirement, and the treasurer-
appointment requirement. 14
A.
“A case becomes moot—and therefore no longer a Case or Controversy
for purposes of Article III—when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” Already, LLC v.
Nike, Inc., 133 S. Ct. 721, 726 (2013) (internal quotation marks omitted).
Because sixty days have passed since the general-purpose committees suing
here appointed a treasurer and registered with the Texas Ethics Committee,
and each committee has amassed ten contributors, Texas Election Code §
253.037(a) no longer limits the committees’ political expenditures or
contributions. And if Texas Election Code § 253.037(a) no longer limits the
committees’ expenditures and contributions, then Texas suggests the Plaintiffs
lack a legally cognizable interest in the outcome of the case because a
determination that Texas Election Code § 253.037(a) was unconstitutional
would not expand the Plaintiffs’ ability to engage in expenditures or
contributions.
In response to Texas’s mootness arguments, Plaintiffs invoke the
disputes capable of repetition, yet evading review exception to mootness.
See, e.g., S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515-16 (1911). To fall
within the exception, a plaintiff must show “(1) the challenged action was in
its duration too short to be fully litigated prior to its cessation or expiration,
and (2) there was a reasonable expectation that the same complaining party
would be subjected to the same action again.” Wilson v. Birnberg,
667 F.3d
591, 596 (5th Cir. 2012). A plaintiff seeking to invoke the exception has the
14 Texas concedes that Plaintiffs’ as-applied challenge to Texas Election Code §
253.094(a) is not moot.
17
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burden of demonstrating its applicability. See Libertarian Party v. Dardenne,
595 F.3d 215, 217 (5th Cir. 2010).
Both parties agree that the first prong of the test is met. See, e.g., FEC
v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (“WRTL II”);
Carmouche,
449 F.3d at 661. Instead, they dispute whether Plaintiffs make a “reasonable
showing that [they] will again be subjected to the alleged illegality.” City of
L.A. v. Lyons,
461 U.S. 95, 109 (1983).
This case is not moot. The Supreme Court has explained that “[o]ur
concern” in capable of repetition, yet evading review cases is “whether the
controversy was capable of repetition and not . . . whether the claimant had
demonstrated that a reoccurrence of the dispute was more probable than not.”
Honig v. Doe, 484 U.S. 305, 318 n.6 (1988). Plaintiffs need not demonstrate
with “mathematical precision” that they will be subject to the same illegality;
rather, Plaintiffs just need to show “a reasonable expectation” that the
challenged illegality will reoccur.
Id. Plaintiffs make that showing: even
though Plaintiffs’ expenditures are no longer limited by § 253.037(a), Plaintiffs’
ability to receive contributions from newly-formed general-purpose committees
is still limited by § 253.037(a).
Notably, under Texas law, general-purpose committees can contribute to
other general-purpose committees provided that the donations are properly
disclosed. See, e.g., Tex. Elec. Code § 253.037(b). The treasurer-appointment
requirement, 60-day, 500-dollar limit, and ten-contributor requirement
therefore affect general-purpose committees in at least two ways:
• Until a committee appoints a treasurer, acquires ten contributors,
and sixty days pass, § 253.037(a) limits the committee to only $500
worth of expenditures and contributions.
• After the 60-day window has passed and the committee has acquired
ten contributors, § 253.037(a) limits the committee’s ability to receive
18
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contributions from newly-formed general-purpose committees that
are subject to § 253.037(a).
The continuing limitation that § 253.037(a) creates on a general-purpose
committee’s ability to receive contribution establishes a reasonable expectation
that these Plaintiffs will again be subjected to the challenged provisions of §
253.037(a). See, e.g., In re Hearst Newspapers, L.L.C., 641 F.3d 168, 175 (5th
Cir. 2011). That the precise injury the Plaintiffs will suffer is slightly different
does not matter: Plaintiffs seeking to invoke the exception need not show they
will suffer the exact same injury so long as the injury is caused by the same
alleged illegality, 15 and both the contributing and the contributed-to party
have sufficient injuries-in-fact to challenge campaign finance restrictions. See,
e.g., McCutcheon v. FEC,
134 S. Ct. 1434, 1443-44 (2014) (plurality); In re Cao,
619 F.3d 410, 421 (5th Cir. 2010) (en banc).
Moreover, the Texas Leadership Coalition (the 501(c)(4)) is not limited
to trying to form only one general-purpose committee. As such, given its
professed desire to continue trying to educate Catholic voters regarding their
religious obligations, it is reasonable to believe that TLC may again be
impacted by Tex. Elec. Code § 253.037(a). See, e.g., Bayou Liberty Ass’n, Inc.
v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 399 (5th Cir. 2000).
We conclude Plaintiffs can invoke the disputes capable of repetition, yet
evading review exception to mootness. They can show that (1) the challenged
action is in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there is a reasonable expectation that, as either (i) the
forming or (ii) the contributed-to party, the plaintiffs will again be impacted by
15See, e.g., WRTL II, 551 U.S. at 463; cf. Ne. Fla. Chapter of the Associated Gen.
Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 662 (1993) (“The new ordinance may
disadvantage them to a lesser degree than the old one, but . . . it disadvantages them in the
same fundamental way.”).
19
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No. 13-50582
the treasurer appointment requirement, the 60-day, 500-dollar limit, and the
ten-contributor requirement.
B.
Plaintiffs’ challenge is not moot for an additional reason. Our prior
cases, which as a panel of this court we must follow, have concluded that in
election law disputes “the Supreme Court has not always required that there
be a likelihood that the same complaining party will be subject to the
challenged action later.” Wilson, 667 F.3d at 596. Therefore, this court
“dispens[es] with the same-party requirement” in election law cases, “and
focus[es] instead upon the great likelihood that the issue will recur between
the defendant and the other members of the public at large.” Kucinich v. Tex.
Democratic Party,
563 F.3d 161, 165 (5th Cir. 2009) (internal quotation marks
omitted); see also Moore v. Hoseman,
591 F.3d 741, 744 (5th Cir. 2009).
Under the standard articulated in Wilson, Moore, Kucinich, and
Carmouche, a plaintiff seeking to invoke the exception must show that “other
individuals certainly will be affected by the continuing existence” of the
challenged provision. Carmouche, 449 F.3d at 662. Accordingly, “not every
election case fits within the four corners of the capable-of-repetition but
evading-review exception.”
Wilson, 667 F.3d at 596 (internal quotation marks
and alterations omitted). For example, cases involving “strictly personal”
harm,
id. at 597, or cases where the plaintiffs fail to show that the challenged
illegality will again occur, see, e.g.,
Dardenne, 595 F.3d at 217-18, do not fit
within the exception. But, in election law cases such as this one, where (1) the
state plans on continuing to enforce the challenged provision, and (2) that
provision will affect other members of the public, the exception is met. See,
20
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No. 13-50582
e.g., Moore, 591 F.3d at 745;
Kucinich, 563 F.3d at 165;
Carmouche, 449 F.3d
at 662. 16
IV.
A.
“The right to participate in democracy through political contributions is
protected by the First Amendment, but that right is not absolute.”
McCutcheon, 134 S. Ct. at 1441. We apply the framework begun in Buckley v.
Valeo to determine whether a campaign-finance regulation represents an
unconstitutional intrusion on protected First Amendment rights. 17 Buckley
and its progeny instruct that we should give varying levels of constructional
scrutiny to campaign-finance regulations depending on the type of regulation
at issue:
• Expenditure limitations receive “the exacting scrutiny applicable
to limitations on core First Amendment rights of political
expression.” Buckley, 424 U.S. at 44-45. A regulation limiting
expenditures may only be upheld if the regulation “promotes a
compelling interest and is the least restrictive means to further
the articulated interest.” McCutcheon, 134 S. Ct. at 1444. 18
• Contribution limitations receive a lessened, but nonetheless
rigorous, level of scrutiny. Regulations limiting contributions may
16 Texas’s attempts to argue that this case is somehow not sufficiently an election law
case so as to fall within the exception are not well-taken given that Texas’s primary
justification on the merits for the limits’ constitutionality concerns their role in preventing
last-minute circumvention of disclosure requirements during an election.
17 Texas suggests analyzing these regulations as time, place, and manner restrictions
on speech. We decline Texas’s invitation. See, e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S.
377, 386 (2000) (noting Buckley’s rejection of time, place, and manner restriction analysis).
18 See also Citizens United v. FEC, 558 U.S. 310, 340 (2010) (noting high level of
scrutiny given to regulations limiting political speech).
21
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only be upheld if “the State demonstrates a sufficiently important
interest and employs means closely drawn to avoid unnecessary
abridgement of associational freedoms.” Id. (internal quotation
marks omitted).
• Disclosure and organizational requirements receive a further
lessened level of scrutiny. To defend disclosure and organizational
requirements, the government must show a “sufficiently important
governmental interest that bears a substantial relation” to the
requirement. SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir.
2010) (en banc) (internal quotation marks omitted). 19
Under each of the tests, the government has the burden of demonstrating
the constitutionality of its actions. McCutcheon, 134 S. Ct. at 1452.
For defending expenditure and contribution limitations, the Supreme
Court “has identified only one legitimate governmental
interest . . . : preventing corruption or the appearance of corruption.”
McCutcheon, 134 S. Ct. at 1450. Moreover, the anticorruption rationale itself
“is not boundless.” Emily’s List v. FEC,
581 F.3d 1, 6 (D.C. Cir. 2009). Recent
Supreme Court case law clarifies that the government’s interest in preventing
corruption is limited to preventing quid pro quo corruption or its appearance.
McCutcheon, 134 S. Ct. at 1450-51. 20 “[G]overnment regulation may not target
See also Citizens United, 558 U.S. at 366-67; Vt. Right to Life Comm. v. Sorrell, ___
19
F.3d ___, 2014 WL 2958565, at *11 (2d Cir. July 2, 2014); Worley v. Fl. Sec’y of State,
717
F.3d 1238, 1242-45 (11th Cir. 2013); Ctr. for Individual Freedom v. Madigan,
697 F.3d 464,
476-77 (7th Cir. 2012); The Real Truth About Abortion, Inc. v. FEC,
681 F.3d 544, 548-49,
551 n.3 (4th Cir. 2012); Nat’l Org. for Marriage v. McKee,
649 F.3d 34, 55 (1st Cir. 2011).
20The government’s interest in preventing corruption can also encompass regulations
that prevent circumvention of laws that prevent corruption (such as contribution limits)
provided that the anticircumvention measure is properly tailored. See, e.g., McCutcheon, 134
S. Ct. at 1452-53; FEC v. Colo. Republican Fed. Campaign Comm.,
533 U.S. 431, 456 (2001)
(“Colorado Republican II”) (“[A]ll Members of the Court agree that circumvention is a valid
theory of corruption; the remaining bone of contention is evidentiary.”).
22
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the general gratitude a candidate may feel toward those who support him or
his allies, or the political access such support may afford.” Id. at 1441.
“Ingratiation and access . . . are not corruption,” Citizens
United, 558 U.S. at
360, and “[s]pending large sums of money in connection with elections, but not
in connection with an effort to control the exercise of an officeholder’s official
duties, does not give rise to . . . quid pro quo corruption,” McCutcheon, 134 S.
at 1450. And finally, in determining whether the government has
demonstrated a legitimate interest in preventing quid pro quo corruption or its
appearance, a court cannot “accept[] mere conjecture as adequate to carry a
First Amendment burden.”
Id. at 1452.
Disclosure and organizational requirements may similarly be justified
by a governmental interest in combating quid pro quo corruption or its
appearance. See Citizens
United, 558 U.S. at 369. But, unlike contribution
and expenditure limits, the government may further defend disclosure
regulations “based on a governmental interest in providing the electorate with
information about the sources of election-related spending.”
Id. at 367
(internal quotation marks and alteration omitted); see also
SpeechNow, 599
F.3d at 696. 21
B.
Plaintiffs’ complaint raises both facial and as-applied challenges.
Therefore, before evaluating the merits of the Plaintiffs’ challenges, we must
be careful to properly define their scope because facial and as-applied
challenges have different substantive requirements. See, e.g., Doe v. Reed, 561
U.S. 186, 194 (2010). Though the precise boundaries of facial and as-applied
challenges are somewhat elusive—certain challenges can have characteristics
21 This list is not meant to be exclusive—other sufficiently important governmental
interests may also be invoked to defend the constitutionality of disclosure and organizational
requirements. See SpeechNow, 599 F.3d at 696.
23
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of both—to categorize a challenge as facial or as-applied we look to see whether
the “claim and the relief that would follow . . . reach beyond the particular
circumstances of the[] plaintiffs.” Id. If so, regardless of how the challenge is
labeled by a plaintiff, “[t]hey must therefore satisfy our standards for a facial
challenge to the extent of that reach.”
Id.
We believe that Plaintiffs have properly labeled their challenges. They
raise both facial and as-applied challenges to the 60-day, 500-dollar limit, the
ten-contributor requirement, and the treasurer-appointment requirement.
Plaintiffs raise only an as-applied challenge to the corporate contribution ban
because they do not seek relief beyond the proposed in-kind contribution from
TLC to TLC-IPA.
Plaintiffs have two ways to prevail in their facial challenges to the 60-
day, 500-dollar limit, ten-contributor requirement, and treasurer-appointment
requirement because this is a First Amendment case. First, Plaintiffs can
“establish that no set of circumstances exists under which [the law] would be
valid or that the statute lacks any plainly legitimate sweep.” United States v.
Stevens, 559 U.S. 460, 472 (2010) (internal quotation marks and citation
omitted). Second, Plaintiffs may also invalidate a statute as overbroad if they
demonstrate that “a substantial number of [the law’s] applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
Id. at 473 (internal citations omitted).
With these principles in mind, we turn to the merits.
24
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V.
Plaintiffs’ raise facial and as-applied challenges that the 60-day, 500-
dollar limit violates the First Amendment. We hold that the 60-day, 500-dollar
limit is facially unconstitutional.
A.
The district court characterized the 60-day, 500-dollar limit as a
disclosure requirement, and accordingly chose to apply “exacting scrutiny.”
The court examined whether there was “a substantial relation between the
disclosure requirement and a sufficiently important governmental interest.”
The parties dispute on appeal whether the district court applied the proper
standard of review.
Plaintiffs argue that the 60-day, 500-dollar limit is a contribution and
expenditure limit, and should be analyzed as such. Texas counters that the
60-day, 500-day limit is not an expenditure or contribution limit, but rather a
disclosure incentive. Because a specific-purpose committee is not subject to
the 60-day, 500-dollar limit, Texas suggests that the purpose of the limit is to
either (1) reinforce its disclosure regulations by encouraging parties to comply
with the additional disclosures necessary to form a specific-purpose committee,
or (2) ensure that the public has sufficient time to learn about the goals of, and
contributors to, general-purpose committees given the committees’ potentially
opaque nature.
To determine whether a rule is a disclosure requirement, or something
more, we look to see the effect of the provision. Disclosure and disclaimer rules
require the provision of information, and only incidentally prevent speech
when the speaker is unwilling to provide the additional required information.
See Doe, 561 U.S. at 196. By contrast, provisions that put a ceiling on speech
even if a party is willing to provide all of the information that the government
requests constitutes something more than a simple disclosure requirement.
25
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The 60-day, 500-dollar limit places a ceiling on speech for sixty days even if a
committee is willing to comply with all disclosure/disclaimer requirements
applicable to general-purpose committees. As such, the 60-day, 500-dollar
limit is an expenditure and contribution limit, and the district court erred by
applying only the lower level of scrutiny applicable to disclosure requirements.
Cf. Buckley, 424 U.S. at 64 (“Unlike the overall limitations on contributions
and expenditures, the disclosure requirements impose no ceiling on campaign-
related activities.”).
Texas’s counterarguments that the 60-day, 500-dollar limit is merely a
disclosure incentive do not alter that conclusion. First, a specific-purpose
committee formed less than 30 days before a primary or general election “may
not knowingly make or authorize a campaign contribution or campaign
expenditure supporting or opposing a candidate” for many statewide offices.
Tex. Elec. Code § 253.031(c). When specific-purpose committees are also
similarly subjected to a waiting period, Texas cannot claim that all a nascent
political committee must do to engage in speech is to simply provide
information to the government. Second, specific-purpose committees are
fundamentally different from general-purpose committees insofar as they
require fidelity to candidates rather than principles. And though we recognize
that in many circumstances candidates and causes overlap, they do not always,
and Texas’s fundamental requirement that committees “change [their]
message” and pledge fidelity for or against particular candidates or measures,
“or do not speak . . . contravenes the fundamental rule of protection under the
First Amendment[] that a speaker has the autonomy to choose the content of
his own message.” Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131
26
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S. Ct. 2806, 2820 (2011) (internal quotation marks omitted). 22 Third, that the
60-day, 500-dollar limit may help prevent circumvention of Texas’s disclosure
regime does not make the 60-day limit a disclosure requirement. A complete
ban on political speech would certainly prevent circumvention of Texas’s
disclosure regime, but no one would suggest that it is a disclosure regulation.
Similarly here, the 60-day, 500-dollar limit may very well help to improve the
transparency of Texas politics, but that does not make it a disclosure
regulation for the purpose of determining the proper level of constitutional
scrutiny.
We will analyze the 60-day, 500-dollar limit as a contribution and
expenditure limit. But that determination is only the first step of the analysis
because contribution limits and expenditure limits have different standards of
review, and the hybrid nature of the 60-day, 500-dollar limit means that the
provision acts alternatively as a contribution limit or as an expenditure limit
depending on how the general-purpose committee wishes to spend its money.
Because Plaintiffs raise a facial challenge and attempt to demonstrate that the
provision is unconstitutional both when it operates as an expenditure limit,
and when it acts as a contribution limit, we will analyze the provision first as
a cap on expenditures, and then as a cap on contributions.
B.
The 60-day, 500-dollar limit on political expenditures primarily affects
two types of expenditures by a general-purpose committee. First, it limits a
committee’s ability to engage in independent expenditures. Second, it limits a
committee’s ability to engage in coordinated expenditures with a candidate. As
coordinated expenditures are constitutionally equivalent to contributions and
Cf. Citizens United, 558 U.S. at 340 (“Prohibited, too, are restrictions distinguishing
22
among different speakers, allowing speech by some but not others.”).
27
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can be regulated as such, see In re Cao, 619 F.3d at 416-17, we focus here on
the 60-day, 500-dollar limit’s effect on independent expenditures. To
withstand Plaintiffs’ constitutional challenge, Texas must show that a 60-day,
500-dollar limit on independent expenditures “promotes a compelling interest
and is the least restrictive means to further the articulated interest,”
McCutcheon, 134 S. Ct. at 1444. Limits on independent expenditures “usually
flunk” strict scrutiny. Wis. Right to Life State PAC v. Barland,
664 F.3d 139,
153 (7th Cir. 2011). The 60-day, 500-dollar limit similarly fails.
In the first instance, the six-month waiting period for acquiring federal
multicandidate political committee status does not support Texas’s claim that
a 60-day limitation on independent expenditures is constitutional. Unlike
Texas’s regulations at issue here, federal law does not contain a similar limit
on independent expenditures by a committee waiting to acquire
multicandidate status. See Buckley, 424 U.S. at 51; Cal. Med.
Ass’n, 641 F.2d
at 624. The Supreme Court’s approval of the federal contribution limits to a
multicandidate committee at issue in California Medical Association v. FEC,
453 U.S. 182 (1981) (“Cal-Med”), accordingly does not support Texas’s
arguments here for limits on independent expenditures. See Texans for Free
Enterp., 732 F.3d at 538-39; see also
Cal-Med., 453 U.S. at 203 (Blackmun, J.,
concurring in part).
Further, when we turn to applying constitutional scrutiny, the
incompatibility of Texas’s position with Supreme Court precedent is clear. The
Supreme Court has been unequivocal that, as a matter of law, independent
expenditures do not give rise to corruption or the appearance of corruption.
Citizens United, 558 U.S. at 357; Texans for Free
Enter., 732 F.3d at 537. Texas
therefore cannot establish that the 60-day, 500-dollar limit directly combats
28
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corruption. 23 And once Texas is shorn of a direct anticorruption justification
for its temporal limitation on independent expenditures, then the state lacks a
constitutionally sufficient justification for limiting a general-purpose
committee’s independent expenditures.
Texas also cannot justify its limit on speech on the basis of its
informational interest in its disclosure regime because the State’s
“informational interest in identifying the sources of support for” independent
expenditures alone “is not enough to justify the First Amendment burden” of a
limitation on independent expenditures. SpeechNow, 599 F.3d at 692 (internal
quotation marks omitted). 24 And to the extent that Texas tries to link
circumvention of its disclosure requirements to its anticorruption interest 25—
if such an argument is permissible at all 26—Texas does not demonstrate proper
tailoring. Though Texas complains that its existing disclosure laws contain
loopholes that may be exploited, Texas could address those loopholes by
strengthening its disclosure requirements—such as by expanding mandatory
electronic or fax filing requirements for disclosures—rather than by instituting
23 Texas tries to substantiate its corruption concerns by reference to the “Sharpstown
scandal.” The Sharpstown scandal began with the discovery of a stock manipulation scheme
involving a prominent businessman and Texas politicians that quickly exploded into
something much bigger after an investigation revealed that the Governor and the Speaker of
the Texas House of Representatives were, in effect, bribed into pushing legislation to aid the
stock fraud scheme. See, e.g., Mutscher v. State, 514 S.W.2d 905 (Tex. Ct. Crim. App.1974).
In the wake of the scandal, Texas passed comprehensive campaign finance reform legislation
in an attempt to prevent future corruption scandals. See, e.g., Free Market Foundation v.
Reisman,
540 F. Supp. 2d 751, 753 (W.D. Tex. 2008). But Supreme Court precedent squarely
blocks Texas’s attempt to argue that independent expenditures lead to corruption. See, e.g.,
Am. Tradition P’ship v. Bullock,
132 S. Ct. 2490, 2491 (2012).
24 Cf. Randall v. Sorrell, 548 U.S. 230, 244-46 (2006) (holding Vermont’s expenditure
limitations unconstitutional under the First Amendment).
25 See, e.g., Stop This Insanity Inc. Emp. Leadership Fund v. FEC, ___ F.3d ___, 2014
WL 3824225, at *5-6 (D.C. Cir. Aug. 5, 2014).
26 Disclosure laws are generally meant to be an alternative to, and not necessarily a
justification for, the firm limits on political speech set by expenditure limits. See, e.g.,
Citizens United, 558 U.S. at 369 (“The Court has explained that disclosure is a less restrictive
alternative to more comprehensive regulations of speech.”).
29
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No. 13-50582
waiting periods on speech by newly-formed groups devoted to a particular issue
or point of view. Cf. McCutcheon, 134 S. Ct. at 1458 (“Importantly, there are
multiple alternatives available to Congress that would serve the Government’s
anticircumvention interest, while avoiding unnecessary abridgment of First
Amendment rights.” (internal quotation marks omitted)).
Moreover, when evaluating whether Texas demonstrates proper
tailoring, we must evaluate whether the 60-day delay is necessary based on
present circumstances—not the circumstances when the restrictions were
originally passed into law. Cf. Grutter v. Bollinger, 539 U.S. 306, 343 (2003).
Recent campaign finance decisions by the Supreme Court have emphasized the
role that advancing technology plays in enabling effective and quick disclosure
of campaign finance activity. As Citizens United explained, “[w]ith the advent
of the Internet, prompt disclosure of expenditures can provide shareholders
and citizens with the information needed to hold corporations and elected
officials accountable for their positions and
supporters.” 558 U.S. at 370.
Accordingly, “[b]ecause massive quantities of information can be accessed at
the click of a mouse, disclosure is effective to a degree not possible at the time”
section 253.037(a) was passed.
McCutcheon, 134 S. Ct. at 1460. Thus even if
the 60-day, 500-dollar limit was at some point sufficiently tailored, that is no
longer true. Notwithstanding the potential opacity of general-purpose
committees, it strains credulity to suggest that it takes 60 days to inform the
public as to who is spending money in electoral races. Cf. Family PAC v.
McKenna,
685 F.3d 800, 805, 812-14 (9th Cir. 2011) (rejecting argument that
a 21-day contribution limit was properly tailored in light of modern
technology). The lack of a demonstrated need for a 60-day limit is a significant
problem for Texas: “[i]n the First Amendment context, fit matters,”
McCutcheon, 134 S. Ct. at 1456, and Texas’s choice to enact a 60-day speech
30
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limit is badly “asymmetrical” to its interest in preventing quid pro quo
corruption, Citizens United, 558 U.S. at 361.
Texas’s two main counterarguments that the 60-day, 500-dollar limit is
properly tailored do not alter that conclusion. First, Texas argues that the
provision is narrowly tailored because interested speakers have many other
opportunities for speaking during the 60-day period, and as such, the 60-day,
500-dollar limit does not prevent any citizen from speaking. 27 But Texas’s
27 Texas points us to Regan v. Taxation With Representation, 461 U.S. 540 (1983), to
argue that the 501(c) organizations (TLC and SAFA) related to two of the general-purposes
committees (TLC-IPA and FOFSA) “cannot turn around and use the First Amendment to
demand government subsidies for their speech,” when the organizations earn government
subsidies in the form of tax exemptions.
Regan has little to do with this case. Regan dealt with “the requirement that a
nonprofit corporation establish a separate lobbying entity if contributions to the corporation
for the conduct of other activities were to be tax-deductible.” FEC v. Mass. Citizens for Life,
Inc., 479 U.S. 238, 256 n.9 (1986) (opinion of Brennan, J.). But here the general-purpose
committee plaintiffs are separate entities, and those committees have their own First
Amendment rights to engage in political speech. None of the cases that Texas cites stands
for the proposition that the political committees’ rights to engage in political speech are
somehow altered by the fact that individuals working for a 501(c) organization had the idea
to form the general-purpose committees. To the contrary, in fact: the Supreme Court has
regularly reminded the lower courts that organizations such as political committees and
corporations have First Amendment rights to engage in political speech. See, e.g., Citizens
United, 558 U.S. at 343; FEC v. Nat’l Conservative Political Action Comm.,
470 U.S. 480, 494
(1985). Further, here Texas is “plac[ing] obstacles in the path” of individuals’ and
organizations’ exercise of their First Amendment rights.
Regan, 461 U.S. at 549. Texas
defines a political committee to be “a group of persons that has as a principal purpose
accepting political contributions or making political expenditures,” Tex. Elec. Code §
251.001(12), and the Texas Ethics Commission has interpreted that definition to include “a
group of two or more people that accepts political contributions and/or makes political
expenditures,” Texas Ethics Comm’n, supra note 3, at 1. As such, unlike the situation at
issue in Regan where groups had the choice of applying for 501(c)(3) status, Texas does not
make the political committee label voluntary—groups wishing to engage in collective political
speech must comply with the burdens imposed by Texas law. And, “[i]t is rudimentary that
the State cannot exact as the price” of the desire simply to participate in political activities
as a group without supporting a particular candidate or measure, “the forfeiture of First
Amendment rights.” Citizens
United, 558 U.S. at 351 (internal quotation marks omitted).
Texas’s additional suggestion that simply because they grant general-purpose
committees some special privileges vis-à-vis other types of political committees, the state may
regulate general-purpose committees as it pleases does no better. Just as the Citizens United
and Bellotti Courts rejected the argument that simply because the state grants special
privileges to corporations the state can regulate corporate speech as it pleases, see Citizens
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argument runs contrary to both Supreme Court and circuit precedent. See, e.g.,
Citizens United 558 U.S. at 337-38 (noting that federal law enacted “a ban on
corporate speech notwithstanding the fact that a PAC created by a corporation
can still speak”); Texans for Free
Enter., 732 F.3d at 539. Just as we do not
permit the government to silence the New York Times because the reporters
could shout-out their stories in Central Park or publish them on the internet,
we do not permit the government to silence various political organizations
simply because their component parts have other opportunities for speech.
Texas’s limitations on general-purpose committees must rise and fall on their
own merits. 28
United,
558 U.S. 342-43;
id. at 351; First Nat’l Bank of Bos. v. Bellotti,
435 U.S. 765, 779-86
(1978), we reject Texas’s argument that because it grants special privileges to certain types
of political committees, it may regulate the committees as it pleases. Notwithstanding
Texas’s choice to grant certain privileges to certain types of committees, any restrictions on
those committees’ political speech—particularly given the expansive definition of what
constitutes a political committee under Texas law—must still withstand constitutional
scrutiny under the appropriate test for the restriction at issue.
28 We are aware that in Stop This Insanity the D.C. Circuit considered the availability
of other avenues in speech when determining whether a regulation on corporate political
speech was permissible. See 2014 WL 3824225, at *3. Whatever the merits of the approach
in Stop This Insanity, it would not change the result here because there are fundamental
differences between federal law’s regulation of separate segregated funds and Texas’s
regulation of general-purpose committees.
As noted by the D.C. Circuit, under federal campaign finance law, separate segregated
funds are essentially the appendix of federal campaign finance law—a vestigial surplusage
no longer necessary and/or needed for corporations to engage in independent expenditures.
Id. at *3-4.
But the same is not true for general-purpose committees in Texas. Under Texas law
any group that engages in more than $500 of expenditures or contributions, and supports “a
particular issue or point of view,” should register as a general-purpose committee, even if it
chooses in a particular instance to “lend[] support to a particular candidate in an election.”
Tex. Ethics Comm’n, supra note 3, at 2. As such, beyond perhaps the basic choice to
participate in political activities as a group without wishing to declare fidelity to a
candidate—which we refuse to consider “the hard way” of exercising First Amendment
rights—the choice to form a general-purpose committee is in no way voluntary. Accordingly,
even under the framework suggested by Stop This Insanity, Texas’s 60-day, 500-dollar limit
and ten-contributor requirements create significant constitutional concerns because speakers
supporting a cause (rather than a candidate) in Texas are presented with “a choice between
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Second, Texas suggests that the provision is narrowly tailored because
general-purpose committees can pick when the 60-day period runs. But we
think Texas’s suggestion overlooks the practical reality that oftentimes few
observers know the critical issues in an election (and the candidates’ position
on those issues) until just days before. See, e.g., WRTL II, 551 U.S. at 462
(plurality) (“But groups . . . cannot predict what issues will be matters of public
concern . . . . In these cases, WRTL had no way of knowing well in advance that
it would want to run ads on judicial filibusters . . . .”). 29 After all, October
Surprises are not called October Surprises because they happen in June. In
such situations, “timing is of the essence . . . when an event occurs, it is often
necessary to have one’s voice heard promptly, if it is to be considered at all.”
Shuttlesworth v. City of Birmingham,
394 U.S. 147, 163 (1969) (Harlan, J.,
concurring). Accordingly, the 60-day limit “places a severe burden on speech
because it may even preclude expression necessary to provide an immediate
response to late-breaking events.” Ariz. Right to Life PAC v. Bayless,
320 F.3d
1002, 1009 (9th Cir. 2003) (internal quotation marks omitted). 30 We reject
Texas’s suggestion that the 60-day burden does not constitute a significant
‘unfettered political speech and subjection to discriminatory fundraising limitations.’” Stop
This Insanity,
2014 WL 3824225, at *4 (quoting Davis v. FEC,
554 U.S. 724, 739 (2008)).
29 As the Supreme Court observed in Citizens United:
It is well known that the public begins to concentrate on elections only in the
weeks immediately before they are held. There are short timeframes in which
speech can have influence. The need or relevance of the speech will often first
be apparent at this stage in the campaign. The decision to speak is made in
the heat of political campaigns, when speakers react to messages conveyed by
others.
558 U.S. at 334; see also N.Y. Progress & Protection PAC v. Walsh,
733 F.3d 483, 488 (2d Cir.
2013) (“[T]he value of political speech is at its zenith at election time.”).
30 See also Ariz. Right to Life PAC, 320 F.3d at 1008 (“To suggest that the waiting
period is minimal ignores the reality of breakneck political campaigning and the importance
of getting the message out in a timely, or, in some cases, even instantaneous fashion.”); cf.
Family PAC v. McKenna,
685 F.3d 800, 812-13 (9th Cir. 2011) (noting contribution ban in the
three weeks before an election constituted a significant burden on speech).
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restriction on speech because a general-purpose committee will know when it
will be severely limited in its speech.
We therefore conclude that the 60-day, 500-dollar limit is
unconstitutional insofar as it limits a general-purpose committee, such as TLC-
IPA, to funding only $500 in independent expenditures.
C.
Next we address the 60-day, 500-dollar limit as it affects a general-
purpose committee’s ability to fund contributions. Texas must show that the
contribution limitations serve “a sufficiently important interest and employ[]
means closely drawn.” Buckley, 424 U.S. at 25. And, just as with expenditure
limitations, “the sole governmental interest . . . recognized as a justification for
restricting contributions [is] the prevention of quid pro quo corruption.” Let’s
Help Fla. v. McCrary,
621 F.2d 195, 199 (5th Cir. 1980). The Supreme Court’s
recent decision in McCutcheon dictates the result here.
In McCutcheon, the Supreme Court dealt with the constitutionality of an
aggregate contribution cap that limited the total amount that an individual
could donate to all candidates, parties, and committees (and not the base
contribution limit that could be donated to any one particular candidate,
committee, or party). The Supreme Court found the aggregate limits
unconstitutional because they did “little, if anything” to combat corruption,
“while seriously restricting participation in the democratic process.”
McCutcheon, 134 S. Ct. at 1442. As the Court noted,
The difficulty is that once the aggregate limits kick in, they ban all
contributions of any amount. But Congress’s selection of a $5,200
base limit indicates its belief that contributions of that amount or
less do not create a cognizable risk of corruption. If there is no
corruption concern in giving nine candidates up to $5,200 each, it
is difficult to understand how a tenth candidate can be regarded
as corruptible if given $1,801, and all others corruptible if given a
dime. And if there is no risk that additional candidates will be
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corrupted by donations of up to $5,200, then the Government must
defend the aggregate limits by demonstrating that they prevent
circumvention of the base limits.
The problem is that they do not serve that function in any
meaningful way.
Id. at 1452.
Similarly here, Texas’s enshrinement of the 60-day, 500-dollar limit
demonstrates the Texas Legislature’s belief that a $500 donation to any
particular candidate does not pose a risk of corruption even if public knowledge
of the source of the contribution is complicated by the proximity of the
contribution to the committee’s formation. But if a single $500 contribution
does not risk corruption, it is hard to see how three $167 contributions hold out
such a significant risk of corruption that the former is permitted and the latter
is not. And even more to the point, as the aggregate contributions limit is also
reduced by independent expenditures, it is particularly hard to see how a $500
contribution to a candidate by a newly-formed general-purpose committee does
not create a cognizable risk of corruption, but a $15 contribution by a newly-
formed committee that had engaged in $490 of independent expenditures does.
The logic undergirding McCutcheon stands out as deeply problematic for
Texas’s attempts to justify its aggregate contributions cap—particularly as
Cal-Med, Texas’s best authority in favor of a 60-day cap, deals primarily with
base limits and not an aggregate contributions cap. See 2 U.S.C. § 441a(1)-(2);
see also
McCutcheon, 134 S. Ct. at 1442 n.3.
Texas must therefore try to justify the provision as an anticircumvention
measure. But we do not believe Texas can justify the 60-day, 500-dollar limit
on contributions as a measure to prevent circumvention of the contribution
limits on specific-performance committees during legislative sessions and
judicial elections. Tex. Elec. Code §§ 253.034(a), .153(a). In the first instance,
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an ever-present 60-day, 500-dollar limitation that kicks in regardless of the
proximity of the committee’s formation to a legislative session or a judicial
election is vastly overbroad to the circumvention threat it is trying to combat.
Cf. McCutcheon, 134 S. Ct. at 1458 (“[T]he indiscriminate ban on all
contributions above the aggregate limits is disproportionate to the
Government’s interest in preventing circumvention.”); First Nat’l Bank of Bos.
v. Bellotti,
435 U.S. 765, 793 (1978) (noting that the government’s interest “is
belied . . . by the provisions of the statute, which are both underinclusive and
overinclusive”). But more importantly, Texas would still be unable to justify
an aggregate limit—as opposed to per-candidate, per-committee, and per-party
base limits—under the logic of McCutcheon.
Texas’s further attempts to distinguish McCutcheon based on Texas’s
interest in preventing circumvention of its disclosure requirements do not
establish that Texas’s efforts are properly tailored. Even though the aggregate
limit at issue here is only temporary, and, after the 60-day window passes, the
general-purpose committee is largely free to spend as it pleases, Texas must
still show that the 60-day, 500-dollar limit “employs means closely drawn.”
But Texas does not provide any evidence supporting a 60-day aggregate
contribution cap as necessary. See, e.g., Family PAC, 685 F.3d at 812-14
(rejecting argument that a 21-day contribution limit was closely tailored in
light of modern technology); see also
McCutcheon, 134 S. Ct. at 1460 (noting
role that advancing technology plays in enabling prompt disclosure); Citizens
United, 558 U.S. at 369-70 (same).
Texas also raises the argument that because a general-purpose
committee could reform as a specific-purpose committee, and engage in speech,
the 60-day, 500-dollar limit is supposedly no limit at all. But this argument
does no better in the context of distinguishing McCutcheon than it does in
supporting a 60-day, 500-dollar limit on independent expenditures. First,
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under binding precedent, the availability of other avenues of speech does not
excuse the imposition of an unconstitutional burden on organizations wanting
to engage in speech. See, e.g., Citizens United, 558 U.S. at 337-38; Texans for
Free
Enter., 732 F.3d at 539. Second, even if we could consider such
alternatives, Texas’s choice to force general-purpose committees to pledge
fidelity to candidates rather than principles, as well as Texas Election Code §
253.031(c)’s prohibition on expenditures or contributions by a specific-
performance committee formed less than 30 days before an election, mean that
a specific-performance committee is not a true constitutional substitute for
speech by general-purpose committees. See Ariz. Free
Enter., 131 S. Ct. at
2820.
We conclude that the 60-day, 500-dollar limit is unconstitutional insofar
as it acts as an aggregate $500 contribution limit on newly-formed general-
purpose committees wishing to engage in political contributions such as it did
on Plaintiffs FOFSA and Texas Freedom.
D.
To show that the 60-day, 500-dollar limit is facially unconstitutional,
Plaintiffs need to demonstrate either that (1) no set of circumstances exist
under which 60-day, 500-dollar limit is valid, or (2) a substantial number of
the 60-day, 500-dollar limit’s applications are unconstitutional, when judged
in relation to the limit’s plainly legitimate sweep. Plaintiffs make that
showing.
Plaintiffs have demonstrated that the 60-day, 500-dollar limit is
unconstitutional both when it functions as a limitation on expenditures and
when it functions as an aggregate contributions cap. As such, the 60-day limit
appears to have no legitimate sweep (or at the very least is vastly overbroad).
Nor is this a situation where we can rewrite Texas law to conform to
constitutional requirements. See generally Ayotte v. Planned Parenthood of N.
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New England, 546 U.S. 320, 328-31 (2006). Either trying to shorten Texas’s
60-day period into something much more compact, or trying to transform
Texas’s aggregate contribution cap into a per-candidate contribution cap (and
determine what that cap should be) would constitute “quintessentially
legislative work.”
Id. at 329. It is not our job to determine the maximum
possible imposition on speech that Texas may enact, and save Texas’s statute
by re-writing it contrary to its plain text so that it embodies the maximum
constitutionally permissible limit on speech. Here Texas plainly intended to
enact a 60-day aggregate expenditure and contributions cap, and we have
determined that such a limit is unconstitutional. Therefore, the “ongoing chill
upon speech that is beyond all doubt protected makes it necessary to invoke
the earlier precedents that a statute which chills speech can and must be
invalidated where its facial invalidity has been demonstrated.” Citizens
United, 558 U.S. at 336. We REVERSE the district court’s grant of summary
judgment that the 60-day, 500-dollar limit is constitutional, and RENDER
summary judgment for the Plaintiffs that the 60-day limit created by Texas
Election Code § 253.037(a)(1) is facially unconstitutional under the First
Amendment.
VI.
Next we address the facial and as-applied challenges to the ten-
contributor requirement. Texas requires that a general-purpose committee
have ten unique contributors before exceeding $500 in contributions or
expenditures. Tex. Elec. Code § 253.037(a)(2). Plaintiffs raise two
constitutional objections to the ten-contributor requirement. First, Plaintiffs
argue that the ten-contributor requirement represents an unconstitutional
expenditure and contribution limit under Buckley. Second, Plaintiffs argue
that the ten-contributor requirement unconstitutionally abridges their
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freedom of association because it forces them to associate with ten other
contributors.
We hold that the ten-contributor requirement is a facially
unconstitutional expenditure and contribution limit under Buckley. We
therefore do not address Plaintiffs’ arguments that the ten-contributor
requirement forces association.
A.
In analyzing Plaintiffs’ Buckley challenge to the ten-contributor
requirement, the district court determined that the ten-contributor
requirement was a disclosure requirement, and applied the level of scrutiny
applicable to disclosure requirements. Under that level of scrutiny, the district
court determined that the ten-contributor requirement survived constitutional
scrutiny because it “ensures the committee is actually a committee and not
merely an individual seeking to disguise his or her personal contributions.”
Plaintiffs argue on appeal that the district court should have analyzed
the ten-contributor requirement under the heightened levels of scrutiny
applicable to expenditure and contribution limits. Texas counters that the
district court properly analyzed the provision as a disclosure requirement
because the point of the ten-contributor requirement is to provide the
electorate with information—that is to ensure that parties representing
themselves as groups actually are groups.
We agree with the Plaintiffs that the ten-contributor requirement is a
contribution and expenditure limit. Unlike disclosure and organizational
requirements, under which compliance is within the committee’s own control
and the only limit on speech arises if a committee is not willing to comply with
the burdens imposed by the law, the ten-contributor requirement prevents a
general-purpose committee from exceeding $500 in expenditures and
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contributions until the committee can persuade ten donors to contribute. 31 Cf.
Citizens United, 558 U.S. at 366 (differentiating appropriate level of scrutiny
on provisions that burden the ability to speak and provisions that impose
external ceilings on speech). Because compliance with the ten-contributor
requirement is not within the committee’s own control, and until a committee
is able to comply with the requirement there is a firm ceiling on the
committee’s speech, we conclude the provision is a contribution and
expenditure limit and should be analyzed as such. That the ten-contributor
requirement also has the effect of improving the quality of disclosure in Texas
does not alter the fact that the provision achieves that goal by limiting
expenditures and contributions.
Therefore, we analyze the ten-contributor requirement first as a limit on
expenditures, and then as a limit on contributions.
B.
As with the 60-day, 500-dollar limit, we primarily consider the effect of
the ten-contributor requirement on independent expenditures when
determining whether the ten-contributor requirement unconstitutionally
burdens expenditures. To determine the constitutionality of the ten-
contributor requirement’s limitation on independent expenditures, we see
whether the requirement “promotes a compelling interest and is the least
restrictive means to further the articulated interest.” McCutcheon, 134 S. Ct.
at 1444.
31The ten-contributor requirement is not an organizational requirement that a
general-purpose committee must have ten members. See, e.g., Tex. Elec. Code § 251.001(12),
(14). For example, five people are fully capable of forming a general-purpose committee. See
Tex. Ethics Comm’n, supra note 3, at 1 (“[A] political committee is a group of two or more
people that accepts political contributions and/or makes political expenditures.”). Those five
people must just wait to receive contributions from ten contributors before exceeding $500 in
contributions and expenditures.
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Texas cannot show the ten-contributor requirement directly combats
corruption because independent expenditures do not give rise to corruption or
the appearance of corruption. Am. Tradition P’ship, 132 S. Ct. at 2491;
Citizens
United, 558 U.S. at 357; Texans for Free
Enter., 732 F.3d at 537.
Accordingly, Texas is forced to try to defend the ten-contributor requirement
on the basis that it supports Texas’s disclosure requirements. But that
argument does no better. Insofar as Texas tries to link circumvention of its
disclosure requirements to its anticorruption interest—assuming, without
deciding, that such an argument is permissible—Texas fails to demonstrate
proper tailoring on this record: the ten-contributor requirement is not the
“least restrictive means to further” Texas’s “articulated interest,”
McCutcheon,
134 S. Ct. at 1444—more demanding disclosure and disclaimer requirements
are. Insofar as Texas tries to link its disclosure requirements to the public’s
informational interest in knowing who is spending money in elections, that
interest “is not enough to justify the First Amendment burden” of a hard limit
on speech.
SpeechNow.org, 599 F.3d at 692. 32
Texas neither shows that the ten-contributor requirement promotes a
compelling interest or is properly tailored. We determine that the ten-
contributor requirement unconstitutionally limits First Amendment rights
insofar as it caps a newly-formed general-purpose committee at $500 worth of
independent expenditures until the committee acquires ten contributors.
C.
To determine whether the ten-contributor requirement is constitutional
as a contribution limit, we examine whether Texas “demonstrates a sufficiently
32The fifty-contributor requirement for federal multicandidate status lends Texas no
support on this point because federal law does not limit a committee’s independent
expenditures during the waiting period. See Texans for Free Enterp., 732 F.3d at 538-39; see
also
Cal-Med., 453 U.S. at 203 (Blackmun, J., concurring in part).
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important interest and employs means closely drawn.” McCutcheon, 134 S. Ct.
at 1444.
McCutcheon leads us to reject Texas’s defense of the ten-contributor
requirement as a contribution limit. 33 Texas does not show that its aggregate
contribution cap directly advances the state’s interest in combatting quid pro
quo corruption “in any meaningful way.” Id. at 1452. Nor is the provision a
sufficiently tailored anticircumvention measure. Texas advances no reason
why more narrowly tailored base contribution limits until a committee
acquired ten contributors would not similarly serve its interests. Cf.
McCutcheon, 134 S. Ct. at 1458. And even if Texas could demonstrate that per-
candidate, per-committee, and per-party base limits would not sufficiently
prevent circumvention, § 253.037(a)’s aggregate contribution cap would still be
poorly tailored to Texas’s limited anticircumvention interest insofar as it also
caps general-purpose committees from contributing to ballot-measure
committees, which do not give rise to quid pro quo corruption or its appearance.
See, e.g., Citizens Against Rent Control/Coal. for Fair Housing v. City of
Berkeley,
454 U.S. 290, 299-300 (1981); see also
Bellotti, 435 U.S. at 790-91.
We conclude that the ten-contributor requirement does not withstand
constitutional scrutiny as a contribution limit.
D.
Because the ten-contributor requirement is unconstitutional both
insofar as it constitutes a $500 cap on independent expenditures and insofar
as it constitutes a $500 aggregate contribution cap, we conclude that the ten-
contributor requirement has no legitimate sweep (or, at the very least, is vastly
33The fifty-contributor requirement for federal multicandidate committee status does
not support Texas’s argument in favor of an aggregate limit because “PACs that do not qualify
as multicandidate PACs must abide by the base limit[s] applicable to individual
contributions.” McCutcheon, 134 S. Ct. at 1442 n.3 (emphasis added).
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overbroad in relation to any legitimate sweep it has). And, as with the 60-day,
500-dollar limit, we do not believe that we can rewrite the ten-contributor
requirement to conform to constitutional requirements because doing so would
constitute “quintessentially legislative work,” Ayotte, 546 U.S. at 329, against
the clear intent of the Texas Legislature. We REVERSE the district court’s
grant of summary judgment that the ten-contributor requirement is
constitutional, and RENDER summary judgment for the Plaintiffs that the
ten-contributor requirement set out by Texas Election Code § 253.037(a)(2) is
facially unconstitutional under the First Amendment.
VII.
We turn to Plaintiffs’ argument that Texas’s treasurer-appointment
requirement represents an unconstitutional prior restraint. We conclude the
treasurer-appointment requirement withstands constitutional scrutiny.
A.
Though prior restraints have long been constitutionally suspect, 34 the
precise boundaries of the constitutional prohibitions on prior restraints are not
well defined. 35 The classic prior restraint, of course, is an “administrative [or]
judicial order[] forbidding certain communications when issued in advance of
the time that such communications are to occur.” Alexander v. United States,
509 U.S. 544, 550 (1993) (internal quotation marks and alterations omitted);
34 3 Joseph Story, Commentaries on the Constitution of the United States, § 1874, at
732 (Boston, Hilliard, Gray, & Co. 1833) (“It is plain, then, that the language of this
amendment imports no more, than that every man shall have a right to speak, write, and
print his opinions upon any subject whatsoever, without any prior restraint . . . .”); see also
Patterson v. Colorado, 205 U.S. 454, 462 (1907) (noting the “main purpose” of the First
Amendment was to prevent prior restraints).
35 “The phrase ‘prior restraint’,” the Supreme Court has explained, is neither “a self-
wielding sword” nor “a talismanic test.” Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441
(1957).
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see, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). But concerns
about prior restraints have also resulted in the invalidation of speech licensing
schemes that give the licensor too much discretion in how to exercise his
authority. See, e.g., Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750, 757
(1988); Cantwell v. Connecticut,
310 U.S. 296, 305-07 (1940). And beyond
licensing schemes where officials have discretion, the Court has also called into
question regulations that require registration before certain types of speech.
See, e.g., Watchtower Bible & Tract Society of N.Y., Inc. v. Vill. of Stratton,
536
U.S. 150, 164-69 (2002); Thomas v. Collins,
323 U.S. 516, 525 (1945).
Under Texas law, a general-purpose committee may not accept political
contributions in excess of $500 or engage in more than $500 in aggregate
expenditures and contributions until, among other things, a committee-
treasurer has been appointed (the “treasurer-appointment” requirement). See,
e.g., Tex. Ethics Comm’n, Ethics Advisory Op. No. 161 (1993); see also Tex.
Elec. Code §§ 253.031(b), .037(a). Plaintiffs argue that the treasurer-
appointment requirement falls into the latter category of impermissible pre-
registration requirements. But the treasurer-appointment requirement differs
from the permitting regimes in Village of Stratton and Thomas in at least one
important regard. Both Village of Stratton and Thomas dealt with registration
requirements that took effect before any speech had occurred. See, e.g., Vill. of
Stratton, 536 US. at 165-66 (“It is offensive . . . to the very notion of a free
society—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.”); Thomas, 323 U.S. at 540. In contrast, the treasurer-
appointment requirement does not similarly regulate speech. Not only are
individuals in Texas entirely free to engage in whatever political speech they
wish, but also a group of citizens interested in forming a general-purpose
committee need only register and appoint a campaign treasurer before political
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contributions or expenditures exceed $500. See Tex. Ethics Comm’n, Ethics
Advisory Op. No. 161 (1993); see also Tex. Elec. Code § 253.031(b). As such,
many of the limitations on spontaneous speech that the Court has found
constitutionally repugnant in Village of Stratton simply are not present here—
no one has to comply with the treasurer-appointment requirement to give a
speech or pass out a simple handbill to their neighbors.
However, just as Texas’s treasurer-appointment requirement is different
from the pre-registration requirements rejected in Village of Stratton and
Thomas, it is also different from some other committee-treasurer requirements
insofar as it requires registration before exceeding a certain amount of political
spending rather than a certain number of days after exceeding a certain
amount of political spending. Federal law, for example, presently requires a
political committee to register no later than ten days after engaging in more
than $1000 of expenditures or receiving more than $1000 of contributions. See,
e.g., 2 U.S.C. § 433(a); 11 C.F.R. § 102.1(d). Because Texas’s reporting
requirements are different from the federal requirements, Buckley’s approval 36
of the federal reporting requirements does not dictate the result here, and we
have to scrutinize the treasurer-appointment requirement to determine
whether it passes constitutional scrutiny. See Vill. of Stratton, 536 U.S. at 165.
B.
Neither party offers much suggestion as to what level of scrutiny should
be applied to analyze the treasurer-appointment requirement. To be sure, the
Supreme Court has observed that “[a]ny system of prior restraints of
expression bears a heavy presumption against its constitutional validity.” N.Y.
Times Co. v. United States, 403 U.S. 713, 714 (1971). But that is not a standard
of review, and judicial decisions analyzing prior restraints have applied
36 See 424 U.S. at 81-82.
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different standards of review depending on the restraint at issue. See, e.g.,
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984); Milwaukee Police Ass’n
v. Jones,
192 F.3d 742, 749 (7th Cir. 1999) (“We note initially that the [plaintiff]
is simply wrong in arguing that all prior restraints on speech are analyzed
under the same test.”). And, most importantly, neither Village of Stratton nor
Thomas explained the proper constitutional test for analyzing registration
requirements. See Vill. of
Stratton, 536 U.S. at 164. The Village of Stratton
Court found it “unnecessary” to determine the standard of review “because the
breadth of speech affected by the ordinance and the nature of the regulation
make it clear that the Court of Appeals erred in upholding it.”
Id. 37 Because
the treasurer-appointment requirement does not sweep as broadly as the
restriction in Village of Stratton, however, we do not believe we can similarly
refrain from deciding the issue of the proper standard of review.
In the absence of more specific guidance, we analyze the treasurer-
appointment requirement as a disclosure and/or organizational requirement.
We arrive at that result for two reasons.
First, and foremost, the treasurer-appointment requirement is a
disclosure requirement: all that the provision requires is that a general-
purpose committee take simple steps to formalize its organizational structure
and divulge additional information to the government. 38 And unlike (1) the 60-
day, 500-dollar limit, (2) the ten-contributor requirement, and (3) other
temporal and monetary limitations on contributions and expenditures,
general-purpose committees remain fully in control of their compliance with
37 The Village of Stratton Court ended up looking “to the amount of speech covered by
the ordinance and whether there is an appropriate balance between the affected speech and
the governmental interests that the ordinance purports to serve.” 536 U.S. at 165.
38 See also Jack M. Raines et al, The Texas Election Code and the 70th Legislature, 40
Baylor L. Rev. 1, 31 (1988) (characterizing the $500 registration threshold as a disclosure
requirement).
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the treasurer-appointment requirement. No external factor limits the
Committee’s ability to speak: the committee does not have to wait for sixty days
(or an election cycle) to pass, or persuade ten contributors to contribute.
Accordingly, a lower level of scrutiny is appropriate because any limit on
speech created by the requirement arises solely from the committee’s own
choice to not provide information to the government. Cf. Citizens United, 558
U.S. at 366 (differentiating appropriate level of scrutiny on provisions that
burden the ability to speak and provisions that impose external ceilings on
speech); The Real Truth About Abortion,
Inc., 681 F.3d at 548-49 (same).
Second, to the extent we still have concerns regarding prior restraints in
the campaign-finance context, those concerns can be addressed through the
existing constitutional test for disclosure requirements. Cf. McCutcheon, 134
S. Ct. at 1450 (noting that the “established First Amendment analysis already
takes account of any ‘collective’ interest that may justify restrictions on
individual speech”). Our scrutiny of disclosure and/or organizational
requirements is not a rubber stamp, see, e.g., Davis v. FEC,
554 U.S. 724, 744
(2008), and Texas will have to persuasively defend a registration requirement
that requires disclosure of the treasurer before a general-purpose committee
exceeds $500 in order to demonstrate that the law is appropriately tailored.
We see no need to create a bespoke level of scrutiny for the analysis of the
treasurer-appointment requirement when our existing test can adequately
account for the nuances of the Plaintiffs’ challenge. 39
39 Cf. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (Ginsburg, J.,
concurring) (noting that the Court was “leaving open matters not presented by McIntyre’s
handbills”).
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C.
Plaintiffs concede that Texas has a sufficiently important interest to
justify the constitutionality of the treasurer-appointment requirement. As the
D.C. Circuit explained in SpeechNow:
[T]he public has an interest in knowing who is speaking about a
candidate and who is funding that speech, no matter whether the
contributions were made toward administrative expenses or
independent expenditures. Further, requiring disclosure of such
information deters and helps expose violations of other campaign
finance restrictions such as those barring contributions from
foreign corporations or individuals. These are sufficiently
important governmental interests to justify requiring [the
Plaintiffs] to organize and report . . . as a political committee.
599 F.3d at 698; see also
Buckley, 424 U.S. at 66-68; Vt. Right to Life Comm.,
2014 WL 2958565, at *11; Ctr. for Individual
Freedom, 697 F.3d at 477-78;
Nat’l Org. for
Marriage, 649 F.3d at 57-58; Human Life of Wash.
Inc., 624 F.3d
at 1006.
Accordingly, we deal here with a dispute between the parties as to
whether the treasurer-appointment requirement is properly tailored. To
determine this, we look to see whether there is “a relevant correlation or
substantial relation between the governmental interest and the information
required to be disclosed.” Davis, 554 U.S. at 744 (internal quotation marks
omitted).
Plaintiffs claim the treasurer-appointment requirement fails tailoring
analysis because Texas could lessen the burden of the treasurer-appointment
requirement by requiring registration after a general-purpose committee has
exceeded a certain level of spending. Texas meanwhile defends the provision
as properly tailored given the State’s interest in promoting disclosure and
ensuring compliance with state campaign finance laws.
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We conclude that the treasurer-appointment requirement withstands
constitutional scrutiny. First, any burden created by the treasurer-
appointment requirement—essentially filling out and putting a three-page
form that asks for basic information in the mail 40—appears to be exceedingly
minimal. See, e.g., SpeechNow, 599 F.3d at 697 (“Nor do the organizational
requirements that [plaintiff] protests, such as designating a treasurer . . .
impose much of an additional burden . . . .”). 41 None of the Plaintiffs, for
example, explain how the treasurer-appointment requirement (as opposed to
the 60-day limit) actually burdened or impacted—in any way—their ability to
form a general-purpose group to speak on their behalf. And without a
persuasive explanation as to why the treasurer-appointment requirement
constitutes a burden, Plaintiffs’ constitutional challenge faces an uphill battle.
Cf. Citizens
United, 558 U.S. at 337-39 (noting the “onerous restrictions” on
political committees imposed by federal law that political committees must
comply with “just to speak”).
40 See Tex. Ethics Comm’n, Form GTA (Sept. 1, 2003 Rev.), available at
http://www.ethics.state.tx.us/forms/gta.pdf. As the Plaintiffs’ complaint notes, the notice is
effective when postmarked. See Tex. Elec. Code § 251.007; see also Raines et al, supra note
38, at 20 (former Texas Secretary of State explaining Texas’s timing rules on campaign
treasurer appointments). And should it be a weekend or a holiday when a postmark may not
be immediately available, see, e.g., Village of Stratton, 536 U.S. at 167-68 (noting that
ordinance prevented spontaneous speech on holidays and weekends), the Texas Election Code
mailbox rule also accepts filings as timely “if the person required to take the action furnishes
satisfactory proof that it was deposited in the mail or with a common or contract carrier
within the period or before the deadline.” Tex. Elec. Code § 251.007.
41 See also Worley, 717 F.3d at 1250 (noting minimal burden imposed by similar
requirements); Iowa Right to Life Comm. v. Tooker,
717 F.3d 576, 593-96 (8th Cir. 2013)
(noting minimal burden created by short paperwork requirement). Our analysis of Texas’s
requirement also takes into account that improving technology is a two-way street for the
parties. Just as technological improvements are relevant to the tailoring analysis of
contribution and expenditure limits insofar as they permit the more rapid disbursement of
information, we also believe that technological improvements are relevant to the analysis of
the burden of disclosure requirements insofar as they lessen the difficulty of tracking,
compiling, and disclosing the information that a state requests.
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When set against that burden, the treasurer-appointment requirement
more than justifies its existence. The treasurer serves as the cornerstone of
Texas’s entire general-purpose committee campaign-finance disclosure regime.
See, e.g., Tex. Elec. Code §§ 254.153, .154, .1541, .155, .159, .160, .161. Thus
Texas’s requirement that committees appoint a committee treasurer bears a
substantial relationship to its informational interest in ensuring the smooth
functioning of its campaign finance disclosure scheme. And Texas’s
justification for a registration requirement that kicks in before a committee
reaches a certain level of activity rather than after is all the more persuasive
in light of today’s result. See, e.g., Senate Comm. on Elections, Bill Analysis,
Tex. S.B. 1068, 69th Leg. R.S., at 1 (1985) (noting problems Texas was having
with the “[l]ast minute formation of general-purpose political committees for
the purpose of avoiding filing requirements”). Striking down Texas’s 60-day
waiting period, thereby deepening Texas’s reliance on prompt and full
compliance with its disclosure requirements in order to deter and detect
corruption, but then undercutting Texas’s disclosure regime by forcing Texas
to wait further to receive information from active general-purpose committees,
would amount to little more than a judicial bait-and-switch. Cf. Ctr. For
Individual Freedom, 697 F.3d at 490 (“The need for an effective and
comprehensive disclosure system is especially valuable after Citizens
United . . . .”). This court is not blind to the fact that Texas’s disclosure scheme,
given Texas’s near-total aversion to spending limits, plays a relatively more
important role in preventing corruption or its appearance in Texas than in
many other states, and we refuse to (1) force Texas to simultaneously rely more
on its disclosure scheme, but then (2) further complicate Texas’s efforts to
make it effective.
Had Texas required registration before a general-purpose committee
engaged in any political activity, this would be a vastly different case given
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Village of Stratton and Thomas. But Texas has excerpted small-scale general-
purpose committee political activity from its registration requirements, 42 and
we are unwilling to say, particularly given this record, that the Constitution
requires Texas to wait further before demanding to know who on the
committee is responsible for the committee’s compliance with Texas’s
disclosure regime. We AFFIRM the district court’s determination that Texas
Election Code § 253.037(a)(1)’s treasurer-appointment requirement is
constitutional both facially and as-applied to these plaintiffs.
VIII.
Finally, we address Texas Leadership Coalition’s and the Texas
Leadership Coalition-Institute for Public Advocacy’s narrow as-applied
challenge to Texas’s ban on corporate contributions to political committees.
See Tex. Elec. Code § 253.094(a). The two entities ask us to determine that it
is unconstitutional for Texas to bar TLC from making an in-kind donation of
an email mailing list to TLC-IPA. Plaintiffs promise that the email contact list
will be used only for distributing independent expenditure-funded
advertisements.
Plaintiffs’ challenge comes at a time that the federal courts are
reevaluating the limits on corporate spending in politics. In Citizens United,
the Supreme Court ruled that a federal ban on independent expenditures by
corporations is unconstitutional under the First Amendment. 558 U.S. at 365-
66. And then in Texans for Free Enterprise this court followed a growing
judicial consensus among the circuit courts that limits on corporate
See Tex. Ethics Comm’n, Ethics Advisory Op. No. 161 (1993); see also Tex. Elec.
42
Code § 253.031(b).
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contributions to independent-expenditure-only committees are likewise
unconstitutional. 732 F.3d at 537-38. 43
Contributions earmarked solely for use in independent expenditures by
“hybrid” political committees that engage in both independent expenditures
and direct contributions to candidates appears destined to be a coming
campaign-finance law battleground. 44 The district court, following a line of
precedent holding that merely requiring separate hard and soft money
accounts is not enough to prevent quid pro quo corruption or its appearance in
the context of hybrid PACs, 45 held that Texas could ban corporate contributions
to hybrid PACs. The district court further noted that because the contribution
at issue in this as-applied challenge was “information rather than funds” the
state’s corruption concern was further strengthened “because information
cannot be segregated in a separate account.” We agree with the district court
that Texas may constitutionally regulate the contemplated in-kind
43 See, e.g., Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir. 2013);
N.Y. Progress & Protection
PAC, 733 F.3d at 488; Wis. Right to Life State Political Action
Comm., 664 F.3d at 143; Long Beach Area Chamber of Commerce v. City of Long Beach,
603
F.3d 684, 696 (9th Cir. 2010);
SpeechNow, 599 F.3d at 694-95.
44 See, e.g., Vt. Right to Life Comm., Inc., 2014 WL 2958565, at *18-19 (“A separate
bank account may be relevant, but it does not prevent coordinated expenditures—whereby
funds are spent in coordination with the candidate.”); Republican Party of
N.M., 741 F.3d at
1097-98 (“[N]o anti-corruption interest is furthered as long as the [hybrid committee]
maintains an account segregated from its candidate contributions.”); Ala. Democratic
Conference v. Broussard, 541 F. App’x 931, 935 (2013) (“When an organization engages in
independent expenditures as well as campaign contributions . . . its independence may be
called into question and concerns of corruption may reappear. At the very least, the public
may believe that corruption continues to exist, despite the use of separate bank accounts,
because both accounts are controlled and can be coordinated by the same entity.”); cf. Emily’s
List, 581 F.3d at 11-12 (“A non-profit that makes expenditures to support federal candidates
does not suddenly forfeit its First Amendment rights when it decides also to make direct
contributions to parties or candidates. Rather, it simply must ensure, to avoid circumvention
of individual contribution limits by its donors, that its contributions to parties or candidates
come from a hard-money account.”).
45 See, e.g., Stop this Insanity, Inc. Emp. Leadership Fund v. FEC, 902 F. Supp. 2d 23,
43 (D.D.C. 2012).
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contribution of the email list, though we do so on considerably narrower
grounds than embraced by the district court.
Texas has decided, as the Supreme Court’s campaign-finance
jurisprudence permits, to entirely ban corporate contributions to candidates.
See, e.g., FEC v. Beaumont, 539 U.S. 146, 149 (2003) (“Since 1907, federal law
has barred corporations from contributing directly to candidates for federal
office. We hold that applying the prohibition to nonprofit advocacy
corporations is consistent with the First Amendment.”). 46 In turn, Texas’s ban
on corporate contributions to political committees engaging in political
contributions serves as an anticircumvention measure to prevent corporations
from using a political committee to do an end-run around Texas’s direct
contribution ban. Cf. Emily’s
List, 581 F.3d at 11-12 (explaining that political
committees that make contributions can be required to make contributions
from a hard money account subject to contribution limitations); N.C. Right to
Life, Inc. v. Leake,
525 F.3d 274, 292 (4th Cir. 2008) (noting corruption risk
arising from committees funneling money to candidates). And the Plaintiffs
do not deny that email mailing lists, and the email addresses that comprise
them, have actual monetary value and can be sold. 47 Accordingly, it seems
46See also In re Cao, 619 F.3d at 422 (“[W]e do not read Citizens United as changing
how this court should evaluate contribution limits . . . .”).
47 See, e.g., ‘Electioneering’ Is Its Own Industry, Clarion-Ledger (Jackson, Miss), June
18, 2014, at A10 (“A component of having a steady stream of dollars is to have a good mailing
list—and such a list with direct contact information to those with a history of giving is as
valuable as the gold the list generates.”); Luke Rosiak, Gingrich’s Campaign Payments Spark
Questions, Wash. Times, Feb. 20, 2012, at A1 (“Mr. Gingrich personally sold his campaign a
mailing list of names of supporters for nearly $50,000 . . . .”); Molly Ball, Sharron Angle, Joe
Miller, Christine O’Donnell Fall Forward After 2010 Flops, Politico (Mar. 25, 2011, 2:11 PM),
http://www.politico.com/news/stories/0311/51950.html (“[T]oday’s failed candidates came
away from the election with something perhaps more valuable than a seat in Congress: email
lists of supporters and small donors numbering in the tens of thousands.”); Mike Allen, Bush
Goes for ‘Icing’ in Louisiana; GOP Pours Cash Into Senate Race Viewed as ’04 Test, Wash.
Post, December 4, 2002 (“Besides raising $1.3 million for Terrell today, Bush has given her
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that Texas has a valid anticorruption interest in ensuring that a corporation
cannot use a political committee to transfer an email mailing list from the
corporation to a candidate. Even if the state does not have an anticorruption
interest in limiting contributions intended to support independent
expenditures, see, e.g., Texans for Free Enter., 732 F.3d at 538-39, the state
does have an anticorruption interest in ensuring those donations facilitate only
independent expenditures.
The parties dispute whether Texas’s anticorruption interest extends to
blocking the corporate donation of an email mailing list when the political
committee assures the state that the mailing list will only be used in support
of independent expenditures. To support their arguments that Texas cannot
constitutionally block the contribution, Plaintiffs point to two sources of
authority: (1) case law holding that governments cannot bar corporate
contributions to independent-expenditure-only political committees, 48 and (2)
case law suggesting that the government cannot regulate contributions to
hybrid political committees provided that the unlimited contributions are kept
in a soft-money account separate from the political committee’s hard-money
account (which remains subject to a contribution limit). 49 Texas counters by
(1) distinguishing the cases dealing with independent-expenditure-only
committees on the basis that the general-purpose committee at issue here is
not an independent-expenditure-only committee, and (2) pointing to case law
suggesting that a state may regulate contributions to hybrid PACs even where
campaign rare access to his database of national donors, which one official called the most
valuable mailing list in politics.”).
48 See, e.g., Texans for Free Enter., 732 F.3d at 537-38.
49 See, e.g., Republican Party of N.M., 741 F.3d at 1097-98; Emily’s
List, 581 F.3d at
11-12.
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the committee suggests that the funds will only be used for independent
expenditures. 50
We agree with Texas that the cases dealing with independent-
expenditure-only committees are not particularly helpful for Plaintiffs’ claims.
As such, we focus on the case law dealing with hybrid political committees that
both engage in independent expenditures and make political contributions.
But those cases do not help the Plaintiffs either. Regardless of the
constitutionality of contribution limitations on donations to hybrid PACs that
are earmarked solely for use on independent expenditures, the premise
underlying all of the decisions cited by both parties is that the state is
permitted to undertake some reasonable measures to ensure that any
contribution limitations are not circumvented. The courts examining the issue
simply disagree as to what those measures may be. This case differs from even
the authorities relied on by the Plaintiffs insofar as the Plaintiffs here seem
almost willful in not explaining what safeguards are in place to ensure the
donated email mailing list will only be used in support of independent
expenditures other than the general-purpose committee’s own good intentions.
Accord Republican Party of N.M., 741 F.3d at 1097-98 (noting existence of
segregated accounts protects the state’s anticorruption interest); Emily’s
List,
581 F.3d at 11-12 (same).
The Plaintiffs’ failure to so explain any actual safeguards beyond
potentially opening a separate bank account to deposit contributions raised
with the email list is dispositive of their as-applied challenge. Though we do
not weigh in on the precise safeguards that must be present (such as a
segregated hard money account or the like)—or whether any level of
See, e.g., Vt. Right to Life Comm., Inc., 2014 WL 2958565, at *18-19; Ala. Democratic
50
Conference, 541 F. App’x at 935.
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safeguards is sufficient—before a state lacks a sufficient anticorruption
interest to regulate contributions to a hybrid PAC earmarked for independent
expenditures, we hold that the state’s interest in preventing quid pro quo
corruption and its appearance permits the state to insist, at the very least, that
there is some safeguard before permitting the contributions of items of fungible
value. The state need not trust solely in its disclosure regulations and a
committee’s good faith to prevent quid pro quo corruption and its appearance.
Cf. Buckley, 424 U.S. at 27-28 (“Congress was surely entitled to conclude that
disclosure was only a partial measure, and that contribution ceilings were a
necessary legislative concomitant to deal with the reality or appearance of
corruption inherent in a system permitting unlimited financial contributions,
even when the identities of the contributors and the amounts of their
contributions are fully disclosed.”). And that narrow determination is the only
one we need to make to resolve Plaintiffs’ as-applied challenge.
In order to defend its prohibition on Plaintiffs’ proposed contribution,
Texas must show “a sufficiently important interest and employ[] means closely
drawn.” McCutcheon, 134 S. Ct. at 1444. Texas has an anticircumvention
interest in preventing corporations from evading its ban on corporate
contributions to candidates through corporate contributions to a general-
purpose committee that (1) engages in independent expenditures and
corporate contributions and (2) lacks sufficient internal controls to safeguard
against the risk that the corporate contributions, even if formally earmarked
for independent expenditures, could be funneled to a candidate. That
anticircumvention interest represents a sufficiently important state interest.
Cf. Colorado Republican
II, 533 U.S. at 431 (approving of anticircumvention
as a valid theory of combatting corruption). Likewise, Texas’s complete ban on
Plaintiffs’ proposed contribution is closely drawn to its anticircumvention
interest insofar as Plaintiffs have failed to provide any clear safeguard that
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sufficiently assures that no part of the corporate contribution will end up being
transferred to a candidate.
We AFFIRM that Texas Election Code § 253.094(a)’s restriction on
corporate contributions to a general-purpose committee is constitutional as-
applied to the in-kind contribution of an email mailing list from Texas
Leadership Coalition to the Texas Leadership Coalition-Institute for Public
Advocacy.
IX.
We AFFIRM the district court’s grant of summary judgment that the
treasurer-appointment requirement is constitutional facially and as-applied.
We AFFIRM the district court’s grant of summary judgment that the corporate
contribution ban is constitutional as-applied to the in-kind contribution of an
email mailing list from Texas Leadership Coalition to the Texas Leadership
Coalition-Institute for Public Advocacy. We REVERSE the district court’s
determinations that the 60-day, 500-dollar limit and the ten-contributor
requirement are constitutional, and RENDER judgment that the 60-day, 500-
dollar limit and ten-contributor requirement are facially unconstitutional as
contrary to the First Amendment. Finally, we REMAND for further
proceedings consistent with this opinion.
57
