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Zimmerman Suit Could Undo Campaign Finance Law

Jorge Sanhueza-Lyon/KUT
Council Member Don Zimmerman has filed a federal suit against the City of Austin alleging its campaign finance rules are in violation of the First Amendment.

From our city hall reporting partner, the Austin Monitor:

City Council Member Don Zimmerman, who plans to run for re-election in 2016, has filed suit in federal court against the city of Austin, seeking to overturn four important provisions of the city’s campaign finance rules. If he wins, the changes would have an immediate and lasting impact on how elections are conducted and financed in Austin.

Zimmerman, who was elected to the District 6 seat in 2014, is asking for a preliminary injunction against four city charter provisions that he says stifle his rights under the First Amendment.

According to the lawsuit, which was filed by Houston attorney Jerad Najvar, the city charter rules prohibiting candidates from raising money until six months before Election Day as well as the “arbitrary limits on the quantity of support Zimmerman may accept” from people and associations living outside Austin “must be enjoined immediately.” That limit is $36,000.

In addition, Zimmerman is seeking a preliminary injunction overturning the requirement that city candidates completely dissolve their campaign funds between elections. He is also challenging the $350-per-person contribution limit.

Zimmerman is widely acknowledged to be the most conservative member of Council. He won his seat with about 53 percent of the vote in a runoff election with Jimmy Flannigan. Flannigan appears poised to run against Zimmerman again next year.

Zimmerman, who finished the 2014 election season with an $18,000 debt to himself, would like to spend the $1,200 he has remaining in his campaign account on gearing up for the 2016 election. However, city rules prohibit him from using that money for political activities, although he could use the money in an officeholder account or give it to charity or the city itself.

Zimmerman notes that he can have “incidental expenditures” from his officeholder account but points out that $1,200 doesn’t go that far. And if he paid himself the $1,200 to slightly defray the debt, he would have nothing in his officeholder account.

Zimmerman said that when he ran for office in 2014, he limited his fundraising for donors outside the city of Austin to people he knew. He said it was too much trouble to try to keep track of those donations separately from donations raised from city donors.

“Here’s the key to that,” Zimmerman said. “There are fundraising organizations that agree with my political point of view, which is the minority political point of view for Austin. They are outside the city, they are in the state of Texas or elsewhere. It makes no sense for me to go and work with these people to get money in, because I don’t want the burden of having to monitor the contributions to say when I get to that amount. That’s not the way fundraising works.”

Therefore, the $36,000 limit effectively prevents Zimmerman — and other candidates like him, who might want to seek expertise outside liberal Austin — from doing so, he said.

“I don’t want to have to police the donations. Neither does anybody else,” Zimmerman said.

As far as the limit for individual contributions, Zimmerman said he did not know what would be reasonable. “Some people can be bought for a hamburger, and others can’t be bought for a million dollars,” he said.

Because he does not have the personal resources to fund his own campaign, the lawsuit says that if the blackout period were eliminated, Zimmerman would immediately solicit contributions from like-minded individuals. Five of those persons are named in the suit.

Prior to filing the lawsuit, Zimmerman expressed his concerns about the constitutionality of the city’s regulations. According to the plaintiff’s petition, Zimmerman, Acting City Attorney Anne Morgan and Zimmerman’s lawyer, Najvar, discussed the matter in a conference call on April 27.

During that call, Morgan “confirmed that even if the city agreed (that) certain provisions were invalid under the First Amendment, there is no means of amending the Charter outside of the home rule charter amendment process set out in the Local Government Code.”

That process would require that Zimmerman or another plaintiff convince the city that the provisions being challenged should be repealed and get Council to hold an election several months later to repeal those sections. Of course, there would be no guarantee that voters would endorse the repeal, leaving Zimmerman only the litigation option to enforce his First Amendment rights, according to the suit.

A memo accompanying the lawsuit says, “Earlier this year, the federal district court in Houston invalidated Houston’s similar blackout period, noting (among other reasons) that the defendants failed to present ‘any evidence showing how contributions given before February 1st of an election year present a different threat of quid pro quo corruption or its appearance from those given after February 1st.’”

Houston’s rules allowed Council candidates to start soliciting donations in February of the year in which they planned to be on the November ballot. Candidates could continue to solicit donations through March 4 of the following year, which, as Zimmerman’s lawyer points out, is much less restrictive than Austin’s charter provisions. Najvar was the attorney for the successful plaintiff.

An Austin attorney familiar with campaign finance law told the Austin Monitor that the city of Houston did not do all it could have to defend the blackout period. Najvar confirmed that Houston did not put on any witnesses to defend that section of the law, and the city didn’t appeal once the judge granted the injunction. Austin, on the other hand, might fight harder for its campaign finance rules.

The Austin attorney also said that judges and members of the Texas Legislature may collect contributions only during a limited period of time. Legislators, for example, are not allowed to accept campaign contributions while the Legislature is in session. The same principle applies to Council members, he said, since they are enacting ordinances and making policies year-round.

Zimmerman said that if he wins the preliminary injunction, he will immediately start fundraising for next year’s election. That would allow the other candidates, including four other Council members who drew two-year terms, to also start fundraising immediately.

More information about candidates running at the local level is especially important in 2016, Zimmerman said, because there will be a very large turnout for the presidential election. Bottom-of-the-ballot candidates can get lost in such election years. But early fundraising and advertising has the potential to boost turnout for those candidates, he said.

No date has been set for the preliminary hearing.

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