U.S, District Judge Robert Pitman of the Western District of Texas yesterday declared unconstitutional the restriction found in the Austin City Code that restricts when a candidate can start raising funds for a mayoral or City Council race.
Pitman previous served as a magistrate judge for the same court and also is a former U.S. attorney for the Western District.
City Attorney Anne Morgan told the Bulldog, “We are disappointed in the ruling but will be talking to the council about it at the next meeting in September.” (No agenda has been posted for a regular council meeting in September.)
“It’s a pretty straightforward issue in this case,” Morgan said. “Campaign finance is about corruption or the appearance of corruption. Fortunately we didn’t have any,” Morgan said.
Asked if candidates can begin fundraising now for the mayoral or council elections of November 2024, instead of waiting until November 5th, the date that would have sounded the starting bell, Morgan said, “I need to study the issue more.
“Candidates may want to talk to their lawyers to get answers.”
Litigation filed by Jennifer Virden
The decision came in response to a lawsuit filed against the City of Austin in March 2021 by Jennifer Virden. (Case No. 1:21-cv-00271-RP)
Virden, who ran unsuccessfully for the District 10 council seat in 2020 and for mayor in 2022, sued to remove the City Charter restriction that bars a candidate from soliciting or accepting campaign contributions more than a year before the general election.
Virden did not respond to a voice message requesting comment for this story.
City Code Section 2-2-7(B) and (G) overturned in Virden’s lawsuit originally prohibited fundraising from starting more than six months before an election. But as a result of a lawsuit filed by then-Council Member Don Zimmerman, who was elected in 2014 to represent District 6, the fundraising window was pried open to allow fundraising beginning a full year before the election.
Both Virden and Zimmerman are Republicans who are strongly opposed to these kinds of restrictions, which are intended to limit fundraising periods with the goal of reducing corruption or the appearance of corruption.
Concerns about such corruption is, in large part, based on the fact that incumbent mayors and council members, if free to raise money while in office and voting on matters of public business, could conceivably be swayed by contributions.
Non-incumbent candidates, on the other hand, view restrictions on fundraising periods as an incumbent-protection devices. Such restrictions prevent challengers from starting early to build a strong campaign to run against incumbents, who appear regularly on the City’s ATXN video network, attract constant media attention, and thus enjoy high name recognition.
As the Bulldog reported, Zimmerman filed suit in July 2015. That lawsuit (Case No. 1:15-cv-00628) sought not only to overturn the six-month restriction, which the litigation accomplished, but also to throw out limits on individual contributions, limits on total contributions a candidate could accept from sources other than natural persons eligible to vote, and the requirement for candidates to distribute the balance of contributions in excess of remaining expenses within 90 days after an election. The latter three objectives were defeated.
“These laws stifle core political activity and prevent candidates from raising the funds required to run effective campaigns, yet they fail to advance the only legitimate governmental interest in this area—the prevention of quid quo pro corruption or its appearance,” Zimmerman’s lawsuit argued.
Lawsuits and legislation unraveling Austin rules
“The opinion had to weigh on one hand the First Amendment rights to free speech in the form of campaign contributions vs. concerns about the integrity of decisions made by public officials influenced by money,” said attorney Bill Aleshire. (Disclosure: Aleshire represents the Bulldog in all public information requests and on our behalf has twice successfully sued the City of Austin for public information.)
“I think the decision is the beginning of cracks in the City of Austin’s approach to campaign finance and disclosures,” he said.
“While this decision was based on the unconstitutionality of restrictions on when candidates can collect campaign money, I do expect that if the ‘Death Star’ bill is finally upheld it may well result in ending restrictions on amounts that can be contributed. It would also obliterate the requirement that officeholders and candidates have to disclose major sources of income in their Statements of Financial Information required by City Code.
House Bill 2127, aka the “Death Star” bill, which becomes effective September 1st, states “…the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is consistent with the laws of this state.”
Same attorneys, same court, same result
Both Virden and Zimmerman were represented by attorney Jerad Najvar of the Houston-based Navjar Law Firm as lead counsel.
Navjar did not immediately not return a voice message left this afternoon requesting comment.
The City of Austin was presented in both cases by outside counsel, Austin-based attorney Max “Renea” Hicks.
Hicks has not returned a voice message left this morning to request comment.
The City Council has authorized Hicks up to $181,750 for his representation in this case. Payments to Hicks through July 31st totaled $148,496, with one invoice still pending, according to information obtained through a public information request.
Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009 and began publishing on the website in April 2010. You can reach him at [email protected].
Related documents:
Jennifer Virden v. City of Austin, Plaintiff’s Verified Complaint, March 25, 2021 (21 pages)
Judge Robert Pitman’s Order in Jennifer Virden et al v. City of Austin, August 30, 2023 (18 pages)
Proofreading is your friend.
The door to corruption is now wide open.. Soon Bigger Money will own Austins government. And no one can know where its coming from.
Yes, Jeanne, proofreading is a friend and we are on speaking terms, although speed sometimes gets in the way of the perfection I strive for.
Delwin, if the money is reported through the city’s campaign finance system, then we will still know its sources. That is consistent with state laws that require campaign finance reporting for elected officials all over the state.
The population in Austin is so big they need at least a year to get the word out. The corruption is going on all the time, prime example of the city council member who doesn’t report his “unscheduled” meetings…give me a break.