Judge declares city campaign contribution blackout period unconstitutional

U.S. District Judge Robert Pitman on Wednesday declared an Austin regulation on campaign fundraising unconstitutional.

The regulation prohibits candidates for City Council seats from seeking or accepting campaign contributions more than a year before an election. Pitman issued his ruling on a case brought by former candidate Jennifer Virden and one of her supporters, William Clark.

The rule was enacted after another judge struck down a city regulation prohibiting candidates from raising money more than six months before an election. In that case, then-Council Member Don Zimmerman sued the city to overturn the rule. The 5th U.S. Circuit Court of Appeals affirmed the ruling.

In both cases, the judges ruled that the blackout periods were a violation of the First Amendment.

Jerad Najvar, Virden’s attorney, told the Austin Monitor he was pleased about the new ruling. However, he was still concerned, because Pitman did not order the city to repeal the current law. Najvar said the order from Pitman “does not (ensure) people the ability to contribute and receive funds in the immediate future.” So, the law remains on the books for now, and the city’s Ethics Review Commission could sanction a candidate who raises money outside of the one-year blackout period, he said.

Virden ran for Council in 2020 and lost to incumbent Council Member Alison Alter in a runoff. Last year, she ran for mayor against Kirk Watson, Celia Israel and three lesser-known candidates. She came in third, with about 18 percent of the vote.

Pitman wrote in his ruling, “The city has failed to present sufficient evidence to show how a contribution made 366 days before an election, versus 364, presents a different threat of quid pro quo corruption.” The judge noted that the city mainly relied on testimony from local political consultant David Butts.

The city presented a statement from Butts about bundling of campaign contributions. Bundlers collect contributions of $200 or more each and present them to the candidate as a group.

The judge wrote, “Butts believes bundling creates a realistic danger that the appearance of quid pro quo corruption will be presented in the context of bundling if the current temporal restriction on fundraising were lifted and bundled contributions could be made further out from the date of the general election than the year that is currently allowed. When bundling occurs, the public may perceive that corporate and other kinds of business interests are giving large sums of campaign money to politicians for reasons to do with support for, and adoption of, city policies and rules that favor the financial interests of these corporate and similar business interests.”

As in the Zimmerman case, the city hasn’t presented evidence of actual corruption or its appearance, Pitman wrote. He added that while the 5th Circuit highlighted the landmark 1976 Supreme Court case Buckley v. Valeo, and the cases following it “make clear that the dangers of large contributions ‘are neither novel nor implausible,’ there is not the same well-trodden path regarding the dangers of contributions made far in time from an election.”

Pitman wrote that circumstances had not changed from eight years ago, and the city’s evidence in instituting a blackout period is as insufficient now as it was when the Zimmerman case was decided. The time period has simply changed.

The ruling states that the judge will be awarding “nominal damages” to the plaintiffs, who were suing to overturn the regulation and not seeking money. He ordered the two sides to get together and file an agreed order by Sept. 13. Najvar said nominal damages usually range between $1 and $500.

Virden did not respond to a request for comment on Thursday.

The Austin Bulldog quoted City Attorney Anne Morgan as saying that the Law Department would talk to Council about the decision at their next meeting in September. She declined to speculate as to whether a candidate would be safe in starting to collect campaign contributions now, as opposed to in November.

Attorney Bill Aleshire, a former Travis County judge and frequent critic of the city, told the Monitor, “The decision is in effect now. If the city is going to appeal and try to stay the effect of that decision they can do so. But without that the law is you can start collecting campaign contributions.”

In addition, Aleshire speculated that this case may mark a turning point in city regulations of campaign contributions. He noted that the blackout period has been found unconstitutional twice.

“And as I read the section of the ‘Death Star’ bill, I think if the bill is eventually validated it will mean the end of Austin financial disclosures limits and campaign financial restrictions inconsistent with state law, which does not have restrictions on how much money you can get,” he said.

The so-called “Death Star” bill – which would limit cities’ abilities to enact policy that doesn’t conform with state laws – has also been declared unconstitutional, but the legislation could have a long litigation path to travel before its fate is finally decided.

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