City ethics rule may be unconstitutional

Mayor Steve Adler’s campaign manager filed an ethics complaint Tuesday against Megaphone GPAC, a general purpose political action committee opposing the mayor’s re-election. But it seems likely that the complaint will be dismissed, according to attorneys familiar with election law.

Adler’s campaign manager, Jim Wick, noted that the committee’s treasurer, Luke McAlpin, filed Megaphone’s appointment of campaign treasurer with the Austin city clerk on Oct. 19. Just seven days later, Megaphone PAC then spent $4,995 to oppose Adler. According to the complaint, “City of Austin Code 2-2-23(c) states that all G PAC expenditures must have a (campaign treasurer appointment) filed 60 days prior to the expenditure.”

However, it seems likely that the complaint will eventually be dismissed because the 5th U.S. Circuit Court of Appeals has declared a state law with almost identical wording to be unconstitutional, according to two attorneys with election law experience. Fred Lewis and Jim Cousar both said that the 2014 case, Catholic Leadership Coalition of Texas v. Reisman, means that the city can no longer enforce its law either.

A search of documents on file with the city clerk’s office shows that the office received Megaphone’s campaign treasurer appointment document on Oct. 19, as Wick alleges.

The political action committee is supporting six candidates running for the Lone Star Groundwater Conservation District and opposing only Adler. According to Megaphone’s campaign finance report filed on Monday, the group spent nearly $86,000 during the time period covered. One of the group’s major contributors is Circuit of the Americas founder Bobby Epstein, who opposes Adler because of the mayor’s support for bringing Major League Soccer to McKalla Place.

Of the money spent, $4,995 went to Go Big Media Inc. of Washington, D.C., for “production of political ad in opposition to S. Adler” on Oct. 26, just seven days after the filing of the campaign treasurer documents. Epstein donated $20,000 on Oct. 17.

Besides Epstein, the only contributor listed on this week’s campaign finance report from Megaphone is Quadvest, a water utility company in Montgomery County, Texas, which is interested in the outcome of races for the Lone Star Groundwater Conservation District. That company contributed $29,659.66 to the PAC. Neither McAlpin nor Epstein could be reached for comment.

In response to an inquiry about the next steps for the complaint, the clerk’s office sent the following statement: “The Clerk’s office processed the complaint this afternoon by forwarding to the Ethics Review Commission (ERC). Once the ERC reviews the complaint, it (will) conduct a preliminary hearing at an upcoming commission meeting.”

The Austin Monitor informed Wick that his complaint may have been filed under a law that cannot be enforced. Via email, Wick conceded that the law might be unconstitutional, although the state law and the city code were not identical. He concluded, “Of course, I’m not an attorney, so I’ll just go ahead and stick with city code until council changes it or a court says it must be changed.”

Cousar said, “This law was probably passed back in the ’80s. The intent of that law was all these GPACS were being created in the last month before an election and nobody knew where the money came from or how it was spent … and that provision of the state election code was struck down … If it’s been struck down in the Texas election code it wouldn’t be enforceable in the city code even if it’s in there. It’s the same premise. The 5th Circuit said it was a violation of free speech rights … That’s one of those things that probably should be cleaned up in the (city’s) election code. But the city’s just as bound by the opinion as the state is.”

Photo by John Flynn.

The Austin Monitor’s work is made possible by donations from the community. Though our reporting covers donors from time to time, we are careful to keep business and editorial efforts separate while maintaining transparency. A complete list of donors is available here, and our code of ethics is explained here.