Wants to overturn campaign finance restrictions and could gain himself a direct personal benefit
Updated Wednesday August 5, 2015 10:46am (Houston court’s injunction was temporary, not permanent)
Don Zimmerman had a long history of filing lawsuits even before he won election to the District 6 seat on the Austin City Council last December.
In fact, while a candidate he sued The Austin Bulldog for defamation last October, lost the case in early January, and still owes $10,000 in attorney’s fees and sanctions for filing a baseless lawsuit. More than six months later he has not paid the debt despite efforts to collect.
Now he’s filed a federal lawsuit to overturn several aspects of the rules under which he ran for and won office. In his latest lawsuit filed July 27, 2015, Zimmerman seeks to eliminate or modify restrictions on political fundraising found in Article III Section 8 of the Austin City Charter.
The lawsuit explicitly states that Zimmerman seeks to eliminate these restrictions to prepare for his campaign for reelection in November 2016.
“Political speech is the very core of the First Amendment, but Austin’s campaign finance system seeks to control debate by controlling fundraising and spending,” said attorney Jerad Najvar of the Houston-based Najvar Law Firm, in a prepared statement. He represents Zimmerman in this lawsuit. “The result is that everybody in the world is free to speak, except for City candidates themselves.”
Campaign finance experts—and even seasoned political consultants who run Austin mayoral and city council elections—say rolling back the restrictions that Austin voters overwhelmingly approved in two City Charter elections would be a disaster for democracy at the local level. (More about that later.)
Zimmerman, a self-proclaimed fiscal conservative has in effect sued his employer, the City of Austin, which will have to spend money to defend the City Charter.
What the lawsuit seeks
“Candidates serve as the voice of political causes and ideals, and the government cannot impose arbitrary waiting periods and arbitrary aggregate limits, and it certainly cannot require candidates to hand over their campaign accounts at the end of a campaign,” Najvar said in the statement released by Zimmerman’s office.
The lawsuit asks for a preliminary injunction and is awaiting a hearing date from the court.
Eliminate blackout period—Article III, Section 8(F)(2) prohibits a candidate from soliciting or accepting political contributions except during the last 180 days before an election. City Code Section 2-2-7(D) also states that a candidate may only raise funds for an election during an authorized campaign period.
On January 9, 2015, Houston City Council Candidate Brent Trebor Gordon won a permanent temporary injunction in a federal lawsuit, Gordon v. City of Houston et al, Civil Action No. H-14-3146 in the U.S. District Court for the Southern District of Texas, Houston Division, to prevent the City of Houston from enforcing its restrictions on when a candidate can raise funds, as set forth in Houston City Code Section 18-35. The court declared the restriction was unconstitutional under the First Amendment of the U.S. Constitution.
Zimmerman’s lead attorney in this case, Jared Wayne Najvar of Houston, also represented Gordon.
If the “blackout period” were enjoined Zimmerman would purchase donor lists from libertarian and conservative groups and solicit donors from across Texas and the United States “to promote his message of fiscal conservatism and solicit financial support for his campaign,” the complaint states.
Eliminate contribution limits—Article III, Section 8(A)(1) bars a candidate from accepting an individual’s campaign contribution of more than $300 per contributor per election, adjusted to the nearest $50 each year for inflation, which raised the limit to $350 for the 2014 elections.
“If not for the Base Limit, many individuals would contribute funds to support Zimmerman’s 2016 campaign for City Council in excess of $350, and Zimmerman would accept such contributions,” Zimmerman’s complaint states. “For example, James Skaggs would immediately contribute $2,500.”
Skaggs is a retired high-tech executive who among other initiatives teamed with Gerald Daugherty, now Precinct 3 Travis County Commissioner, to lead opposition that narrowly defeated the light-rail election of 2000.
Eliminate geographic barriers—Article III, Section 8(A)(3) prohibits a candidate or committee from accepting a total of more than $36,000 per election, and $24,000 in the case of a runoff election, on the total of contributions from sources other than natural persons eligible to vote in a postal zip code completely or partially within the Austin city limits, with totals to be adjusted for inflation.
“Zimmerman enjoys support from like-minded individuals and groups that reside, or are registered or domiciled, both inside and outside the territorial limits of the City of Austin,” his complaint states, and he will “solicit and accept contributions from supporters regardless of” where the person lives.
Eliminate funds return—Article III, section 8(F)(3) requires candidates no later than 90 days after an election or runoff to distribute the balance of funds in excess of any remaining expenses to campaign donors, to charitable organizations, or to the Austin Fair Campaign Fund. An election winner may retain $20,000 in an officeholder account.
Zimmerman’s latest Campaign Finance Report filed July 13, 2015, indicates he still has $1,292 in contributions on hand. If this restriction is not lifted, the lawsuit argues, “Zimmerman will be forced to refrain from using unexpended funds for campaign purposes….” As an election winner, Zimmerman is barred from raising campaign funds until six months before the next election.
What is not stated in Zimmerman’s complaint is that he still owes himself $18,000 in funds he loaned to his campaign during the election, according to his latest Campaign Finance Report. If the blackout period were lifted, then he could raise funds and directly reimburse himself.
“Contributions used to pay the debt a candidate has to his campaign is a personal benefit to the candidate,” says attorney Fred Lewis. “It improves his financial net worth.”
Lewis, who helped draft the 10-1 Charter amendment language that brought about our new system of electing council members from geographic districts, is a longtime activist on campaign finance issues. He said, “Some of us remember before Austin had limits or rules beyond disclosure and candidates sought large sums while ruling on applications and projects of special interests. If the blackout rule is unconstitutional, then council members will be able to hold fundraisers with people who have matters in front of them, not only during election periods but all the time.”
Lawsuit’s aims are not popular
Political consultants have been known to complain loudly about the difficulty of raising money to fund local campaigns under Austin’s tight restrictions. But a couple of local practitioners weren’t shy about criticizing the lawsuit’s goals.
“It’s not good for ‘little D’ democracy,” says David Butts, who’s been getting candidates elected for decades in Austin and worked in Mayor Steve Adler’s campaign. “If a council member can raise money any day of the year he or she wants to, including right before taking votes on the council, that’s not a good thing. … The truth of the matter is that any time you allow wads of cash to invade the political system, don’t be surprised if legal and ethical problems surface down the road.”
“I believe the $350 limit needs to be raised but not dramatically,” Butts says.
“If we want to dispense with all the drama we can just have an auction instead of an election and let the highest bidder put the money into the treasury. But if we’re going to have a democracy, we can’t have money controlling everything,” he said.
Of Zimmerman’s specific complaints expressed in the lawsuit, Butts says, “He wants to throw everything out and think it’s new, but it’s the same old crap we’ve had forever.”
Genevieve Van Cleve is a consultant who worked for the campaign of mayoral candidate Sheryl Cole and Travis County Judge Sarah Eckhardt, among others. She, too, reacted unfavorably to Zimmerman’s lawsuit.
“It’s a shame that Councilman Zimmerman has squandered his time in office to figure out new and unique ways for extreme right-wing groups to funnel money into his campaign war chest,” she says. “While I do have some concerns with the current constraints on fundraising limits, both geographic and amount, I think the approach that Zimmerman is taking is insulting to his colleagues and an embarrassment to his district.”
“In my opinion, the current fundraising rules do not allow people that aren’t already of means to run for office, particularly the office of mayor,” Van Cleve said. “There is a conversation to be had about this issue. However, for a guy who no doubt complains about frivolous lawsuits and government spending to file a lawsuit that forces the City to spend money on his lawsuit is comical.”
Austin attorney Bill Aleshire of Aleshire Law PC, and one of The Austin Bulldog’s attorneys involved in the ill-fated defamation lawsuit Zimmerman brought against the Bulldog and lost, is a former Travis County judge and before that the county’s tax assessor-collector.
“The lobbyists and special interests who seek undue influence in our elections must be worshiping Don Zimmerman about now,” Aleshire said. “Here’s a candidate who not only wants no limits on campaign contributions he can receive while serving in office, he thinks he can use those contributions to pay his wife.”
The Austin Bulldog reported that Zimmerman paid his wife $2,000 from campaign donations, despite strict prohibitions against it. Aleshire filed a complaint about that with the Texas Ethics Commission and also filed a criminal complaint with the Travis County attorney. Both complaints are pending.
“The resulting system, if Zimmerman has his way,” Aleshire said, “would be legalized bribery. The people of Austin, through amendments to their City Charter, have tried to limit special interest influence with the very rules Zimmerman—only after getting elected—now attacks. The voters of District 6 will have to decide if they admire him for that.”
Craig McDonald directs Texans for Public Justice, which tracks campaign finance in Texas. He has filed several criminal complaints that led to prosecutions of U.S. Representative Tom DeLay and Governor Rick Perry, and triggered the current investigation of Texas Attorney General Ken Paxton. But in 1997 he helped to draft the very campaign finance restrictions that Zimmerman’s lawsuit attacks.
“This will an interesting lawsuit and I don’t think it’s a slam dunk for either side,” McDonald said. “The city will have the burden to prove its regulations are in the public interest. The city will have to show that the restrictions being challenged limit either real corruption or the appearance of corruption. That’s the constitutional standard. You can regulate size of contributions or the window for raising money if those are designed to limit corruption or the appearance of the corruption in the eyes of the public.”
Tom “Smitty” Smith has been director of Public Citizen Texas since 1985.
“If council member Zimmerman doesn’t want to comply with the rules perhaps he shouldn’t have run,” Smith said. “Decades of history have shown that those who have the most to gain from manipulating our government will contribute the most and will get special favors in return.
“As a result, Austinites passed an ordinance to reduce corruption and it has done a good job of reducing the dominance of big economic players in the city. If Zimmerman’s lawsuit is successful, then Austin will return to the bad old days where a few developers and big banks really controlled the city.”
How restrictions came about
Zimmerman’s federal lawsuit is an attempt to overturn City Charter restrictions that were approved by 72 percent of Austin voters in the election of November 4, 1997.
The proposition got on the ballot through a petition drive led by a grassroots group that called itself Austinites for a Little Less Corruption.
Before this successful movement there were no limits on how much mayoral and city council candidates could raise and spend and no limits on where the money could come from. In a cumulative list of the Top 100 contributors I published in the In Fact newsletter, in the combined city elections of 1996 and 1997, rock ’n’ roller Don Henley led the list with contributions totaling $125,500. The Real Estate Council of Austin’s political action committee spent $37,000. Developers and law firms gave as much as $23,000.
A lot of folks thought that was excessive. The reform movement began in September 1995 when a 27-year-old, little known activist, Brent White, launched his one-man petition drive. As I wrote in the In Fact newsletter of October 29, 1997, White said, “Even if you can’t prove there’s quid pro quo, there’s the appearance of it, and we have a right to limit contributions.”
White’s drive attracted the attention of Linda Curtis, who had learned to organize politically in the civil rights movement of the 1960s and ’70s. They met in 1995 when she was leading Priorities First!, the group that overwhelmingly defeated the city’s $10 million bond election for a minor league baseball stadium. That was the only thing on the ballot of October 7, 1995, and it lost big-time by a margin of 37 percent for, and 62 percent against.
Curtis helped to get White’s petition rewritten by Craig McDonald, who at the time was heading the local office of the Center for New Democracy, a group that had been successful in leading campaign-finance initiatives in several states.
Curtis was seen all over town buttonholing people to sign the petition. “I was out at gay bars, anywhere I could find people. I must have talked to 10,000 to 12,000 people,” Curtis told In Fact.
When the drive was finished and the petitions were filed with Austin City Clerk Elden Aldridge, he used an antiquated method of having clerks check the petition against printed lists of registered voters and, after about a month of screening, ultimately ruled it was insufficient. Meaning the city would not hold an election.
The American Civil Liberties Union of Texas stepped in and pro bono attorney Hugh Lowe pinned the city’s ears with a stunning victory in federal court. In his ruling, U.S. District Judge Sam Sparks wrote a scathing opinion of the city’s verification work and ordered the election be held November 4, 1997.
The Austin American-Statesman buried stories about the group’s court victory deep inside the paper and published numerous editorials blasting the proposition. The Austin Chronicle judged the old campaign finance system by the results it had produced, in which all winning candidates won the paper’s endorsement. The Greater Austin Chamber of Commerce passed a resolution to oppose the ballot proposition.
But 27,600 people has signed the petitions for the reforms and despite Statesman and Chronicle opposition, no other vocal opponents surfaced. And 72 percent of voters gave the measure a strong show of support.
The amendment limited individual contributions to $100 per candidate per election cycle, or $200 if there is a runoff; barred candidates from taking more than $15,000 per election cycle from sources other than Austin citizens or $25,000 if there is a runoff; and prohibited candidates from asking for or receiving contributions until 180 days before elections.
One other historical footnote: Even the promoters of $100 campaign contributions had second thoughts after the measure was enacted and the limit was raised through Proposition 5 approved May 13, 2006 by 68 percent of voters.
City Charter needs strong defense
Attorney Fred Lewis said, “Very few people in Austin think we have too little money in our political system. Nor do many citizens think that having no contribution limits will improve democracy or the citizens faith in their government.
“Basically the rightwing notion that money is speech is a fallacy that results in only rich people controlling our government and electing our candidates.”
Lewis is concerned, based on his previous involvement, about whether the City of Austin will mount a strong defense.
“The $100 limits were challenged as pertained to ballot measures in late 1990s and the city rolled over,” Lewis said. “I was there. I intervened on behalf of Austinites for Little Less Corruption and the city refused to defend the charter amendment.
“The city attorney’s office has been hostile to campaign finance and ethics laws in the city of Austin for many years,” he said. “The city is obligated to hire outside council to vigorously defend the city charter.”
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain The Austin Bulldog’s reporting by making a tax-deductible contribution&view=form&id=7&Itemid=19″>tax-deductible contribution.
Donald Zimmerman v. City of Austin, Texas (30 pages)
Plaintiff’s Memorandum in Support of Motion for Prelminary Injunction (40 pages)
Memorandum Opinion and Order in Gordon v. City of Houston et al (42 pages)
Related Bulldog coverage:
Zimmerman Lawsuit a Costly Boondoggle: First council candidate in decades, if ever, to sue the media in effort to suppress coverage, January 20, 2015
Zimmerman Lawsuit Dismissed and Sanctioned: The Austin Bulldog’s anti-SLAPP motion approved after second hearing, damages and cost assessed, January 7, 2015
Bulldog Defends Zimmerman Lawsuit, November 25, 2014
Zimmerman Sues Bulldog, Claims Defamation: District 6 candidate Don Zimmerman claims ‘The Austin Bulldog’ report made false accusations, October 16, 2014
Candidate Lost Custody Over Abuse: District 6 Council candidate Don Zimmerman injured, alienated daughter, court records state, October 9, 2014
Other coverage of this lawsuit (access may involve paywalls):
New CM Zimmerman Loses to Bulldog: Sanctioned for lawsuit against publication, The Austin Chronicle January 9, 2015
Zimmerman libel suit against Bulldog dismissed, Austin Monitor January 8, 2015
Judge dismisses defamation lawsuit, orders Don Zimmerman to pay up, Austin American-Statesman January 7, 2015
Zimmerman Suit Not Yet “Bygone”: Judge will hear motion that could mean sanctions, The Austin Chronicle December 26, 2014
Zimmerman drops lawsuit, but case goes forward, Austin Monitor December 19, 2014
Zimmerman v. Bulldog case going to court today, December 18, 2014
Zimmerman’s Latest Lawsuit: Is D6 candidate trying to silence coverage of custody case? The Austin Chronicle December 12, 2014
After years of fighting government, Don Zimmerman angles to join it, Austin American-Statesman November 25, 2014
Zimmerman threatens lawsuit over abuse stories, Austin Monitor October 15, 2014