Joint Heirs Fellowship Church et al v. Reisman et al, No. 4:2014cv00125 - Document 62 (S.D. Tex. 2014)

Court Description: MEMORANDUM OPINION AND ORDER denying 2 MOTION for Temporary Restraining Order, granting in part 52 MOTION for Summary Judgment, denying 53 MOTION for Summary Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JOINT HEIRS FELLOWSHIP CHURCH, HOUSTON'S FIRST CHURCH OF GOD, and FAITH OUTREACH INTERNATIONAL CENTER, § § § § § § § § § § § § § § § § Plaintiffs, v. NATALIA ASHLEY, in her official capacity as Interim Executive Director of the Texas Ethics Commission, et al., Defendants. CIVIL ACTION NO. H-14-0125 MEMORANDUM OPINION AND ORDER Plaintiffs Church of Joint God, (collectively, and Heirs Fellowship Church, Faith "Plaintiffs") Outreach brought Houston's International this action First Center against the Executive Director and members of the Texas Ethics Commission, in their official capacities (collectively, "Defendants") challenging certain provisions of the Texas Election Code. Pending before the court are Plaintiffs' Motion for Temporary Restraining Order and Expedited Preliminary Injunctive Relief Injunction") ("Motion for Preliminary (Docket Entry No.2), Defendants' Motion for Summary Judgment (Docket Entry No. 52), and Plaintiffs' Motion for Summary Judgment and Memorandum in Support ("Plaintiffs' Motion for Summary Judgment") (Docket Entry No. 53). For the reasons explained below, Plaintiffs' Motion for Summary Judgment will be denied, Defendants' Motion for Summary Judgment will be granted in part, Plaintiffs' Motion for Preliminary Injunction will be denied, and this case will be dismissed. I. Plaintiffs involved in are Background incorporated efforts to recall churches that certain wish to become officials. 1 elected Plaintiffs Joint Heirs Fellowship Church and Houston's First Church of God are located in Houston, Texas, and plaintiff Faith Outreach International Center is located in San Antonio, Texas. 2 When Plaintiffs filed their Motion for Preliminary Injunction, there was "a recall effort under way in San Antonio, recall Mayor Julian Rebecca Viagran, Castro Rey Saldana, Medina and Ron Nirenberg." 3 effort and council members Shirley Gonzales, Texas, Diego to Bernal, Ray Lopez, Cris According to Plaintiffs, the "recall [was] premised on a proposed ordinance that these council persons and Mayor proposed and supported that is contrary to IPlaintiffs' Second Amended Complaint and Application for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment ("Second Amended Complaint"), Docket Entry No. 36, p. 2 ~~ 1.1-1.3, p. 5 ~ 3.1, p. 10 ~ 4.6; Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 9. Page citations are to the pagination imprinted by the federal court's electronic filing system at the top and right of the document. 2Second Amended Complaint, Docket Entry No. 36, p. 2 Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 9. ~~ 1.1-1.3; 3Motion for Preliminary also Second Amended Affidavit of Pastor for Preliminary Injunction, Injunction, Docket Entry No. ~ 1; see ~ 4.10; Injunction, Docket Entry No.2, p. 2 Complaint, Docket Entry No. 36, p. 11 Charles Flowers in Support of Motion attached to Motion for Preliminary 2-2, p. 2 ~ 4. -2 - religious freedom and freedom of speech."4 immediately initiate their involvement Plaintiffs desired "to in support of the San Antonio efforts." 5 Plaintiffs also contend that "some Houston city officials have supported policies that Plaintiffs feel are contrary to moral values and religious freedom, II and that "[p] laintiffs Joint Heirs Fellowship Church and Houston's First Church of God would 1 ike to engage in immediate involvement in support of a recall election regarding one or more such officials." 6 Plaintiffs allege that under certain provisions of the Texas Election Code they "cannot be involved in supporting the recall efforts people's through raising activities, money, promoting donating the recall money, coordinating effort on church websites, allowing petitions to be signed and distributed on church grounds, speech supporting the effort, supporting recall efforts. 117 or in any way public [ly] Defendants are charged with enforcing the provisions of the Texas Election Code. 8 ~ ~ 4Motion for Preliminary Injunction, Docket Entry No.2, p. 2 2; see also Second Amended Complaint, Docket Entry No. 36, p. 10 4.6. 5Motion for Preliminary Injunction, Docket Entry No.2, pp. 2-3 ~ 5; see also Second Amended Complaint, Docket Entry No. 36, p. 10 ~ 4.6, p. 11 ~ 4.10. 6Motion for Preliminary Injunction, Docket Entry No.2, p. 2 ~ 3. 7Id. ~ 4; see also Second Amended Complaint, No. 36, p. 10 ~~ 4.6-4.7. Docket Entry 8S econ d Amended Complaint, Docket Entry No. 36, p. 3 ~ 1.13; Defendants' Answer to Plaintiffs' Second Amended Complaint ("Answer"), Docket Entry No. 44, p. 3 ~ 1. 13 i see also Tex. Gov't Code Ann. § 571.061 (a) (3) (West 2012) -3- A. Plaintiffs' Intended Conduct Plaintiffs allege that they intend to engage in the following conduct: a. Circulating recall petitions, b. Submitting recall petitions, c. Obtaining signatures and support for recall petitions or in opposition to recall petitions, d. Promoting recall efforts in communications to the public, including but not limited to the posting of information on the Plaintiffs' websites, church communications, bulletins, in the media, in interviews, and in other communications; e. Encouraging others to circulate, support, or oppose recall petitions, f. Utilizing or providing facilities, equipment, supplies, or personnel to assist in the signing and circulation of recall petitions and in connection with recall petitions, g. Notifying the public that recall petitions are available for signing at their church [esl or other locations, h. Raising and spending funds in support of petitions or in opposition to recall petitions, recall i. Sending out emails and other communications to church members and to the public encouraging them to get involved in matters regarding recall petitions, including, without limitation, circulating and signing recall petitions, j. Speaking from the pulpit and other venues in support of or in opposition to recall efforts, k. Coordinate with the two other Plaintiff churches in this matter, and with other individuals and organizations, for the principal purpose of circulating and submitting recall petitions and otherwise advocating recalls, including through the raising and spending of funds, and the other actions mentioned above. -4 - 1. [Each Plaintiff] intends to contribute funds from its regular budget to support the recall or other measures-only efforts. Also l when raising funds for a recall effort or a measures-only effort l they intend to inform potential contributors that the funds will be used in connection with the recall effort or measures-only effort. m. Doing any of the above activities in connection with a measures-only issue in addition to recall petition matters. 9 B. Procedural History Plaintiffs filed their Original Complaint Preliminary Injunction on January 171 2014. 10 and Motion for On January 23 1 2014 1 9S econ d Amended Complaint Docket Entry No. 36 pp. 11-13 5.1; id. at 13-16 ~~ 5.2-5.3; see also Plaintiff/s Joint Heirs Fellowship Church/s Responses to Defendants First Set of Interrogatories ("Joint Heirs Interrogatory Responses") attached to Plaintiffs l Motion for Summary Judgment Docket Entry No. 53-19 1 pp. 2-3; Plaintiff/s Houston/s First Church of God/s Responses to Defendants First Set of Interrogatories ("Houston s First l Motion for Interrogatory Responses") attached to Plaintiffs Summary Judgment Docket Entry No. 53-20 1 pp. 2-3; Plaintiff/s Faith Outreach International Centerl s Responses to Defendants First Set of Interrogatories ("Faith Outreach International/s Interrogatory Responses") attached to Plaintiffs l Motion for Summary Judgment Docket Entry No. 53-211 pp. 2-3; Affidavit of Pastor Don Bergstrom in Support of Motion for Preliminary Injunction l attached to Motion for Preliminary Injunction l Docket Entry No.2-II pp. 2-3 ~ 5; Affidavit of Pastor Charles Flowers in Support of Motion for Preliminary Injunction l attached to Motion for Preliminary Injunction l Docket Entry No. 2-21 pp. 2-3 ~ 7; Affidavit of Pastor John McCrutcheon in Support of Motion for Preliminary Injunction l attached to Motion for Preliminary Injunction l Docket Entry No. 2-3 pp. 2-3 ~ 5. I I ~ I l I I I I I I I I I 1 10Plaintiffsl Original Complaint and Application for Temporary Restraining Order Preliminary Injunction l Permanent Injunction l and Declaratory Judgment ("Original Complaint") Docket Entry No.1; Motion for Preliminary Injunction l Docket Entry No.2; see also Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunctive Relief l Docket Entry NO.3. l I -5- the court held a schedule for Plaintiffs' scheduling conference "to discuss an expedited the Motion filing for of motions Preliminary and briefs" Injunction. l1 related to A preliminary injunction hearing was scheduled for February 5, 2014.12 Defendants filed a response to Plaintiffs' Motion for Preliminary Injunction on January 29, 2014. 13 Plaintiffs filed a reply on February 3, 2014.14 On February 4, 2014, Plaintiffs filed their proposed findings of fact and conclusions injunction hearing .15 of law related to the preliminary The court held the preliminary injunction hearing on February 5, 2014, and ordered the parties to submit a proposed schedule for the submission of supplemental briefing.16 The court urged the parties to confer and attempt to stipulate to 110r der, Docket Entry No.4, p. 1; Hearing Minutes and Order, Docket Entry No.5. 12Hearing Minutes and Order, Docket Entry No.5. 13Defendants' Response in Opposition to Motion for Preliminary Injunction ("Defendants' Response in Opposition"), Docket Entry No.7. 14Plaintiffs' First Amended Reply in Support of Motion for Preliminary Injunctive Relief ("Plaintiffs' First Amended Reply"), attached to Plaintiffs' Unopposed Motion for Leave to File Plaintiffs' First Amended Reply in Support of Motion for Preliminary Injunctive Relief ("Plaintiffs' Motion for Leave to File Amended Reply"), Docket Entry No. 9-1. 15Plaintiffs' Proposed Findings of Fact and Conclusions of Law, Docket Entry No. 10. 16Hearing Minutes and Order, Docket Entry No. 16; see also Transcript of Injunction Hearing Before The Honorable Sim Lake ("Transcript of Injunction Hearing"), Docket Entry No. 26; Joint Status Report and Proposed Scheduling Order, Docket Entry No. 18, p. 5. -6- conduct that they agree does not violate the Texas Election Code.17 On February 7, 2014, the parties filed a Joint Status Report and Proposed Scheduling Order.IB Complaint the same day.19 Plaintiffs filed their First Amended On February 10, 2014, the court entered a scheduling order on supplemental briefing.20 On February 19, 2014, Defendants filed their proposed findings of fact and conclusions of law, and their supplemental briefing on Plaintiffs' Motion for Preliminary Injunction. 21 2014, Defendants filed a motion to dismiss. 22 On February 21, On March 3, 2014, Plaintiffs filed their supplemental briefing on their Motion for Preliminary Injunction. 23 The parties subsequently indicated that they could not agree on a proposed order detailing specific conduct that does not violate the Texas Election Code. 24 17Hearing Minutes and Order, Docket Entry No. 16 ; Transcript of Injunction Hearing, Docket Entry No. 26. see also 1BJoint Status Report and Proposed Scheduling Order, Entry No. 18. Docket I9Plaintiffs' First Amended Complaint and Application for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment ("First Amended Complaint"), Docket Entry No. 17. 2°Order, Docket Entry No. 19. 2IDefendants' Proposed Findings of Fact and Conclusions of Law on Plaintiffs' Motion for Preliminary Inj unction, Docket Entry No. 24; Defendants' Supplemental Brief in Opposition to Motion for Preliminary Injunction, Docket Entry No. 23. 22Defendants' Motion to Dismiss, Docket Entry No. 25. 23Plaintiffs' Supplemental Reply Brief, Docket Entry No. 29. 24See Plaintiffs' Supplemental Status Report as to Progress on Agreed Partial Declaratory Judgment, Docket Entry No. 30; (continued ... ) -7- ---------------_._._-_ --------------........... ... - On March 18, Complaint. 25 2014, Plaintiffs On March 21, 2014, Defendants' Motion to Dismiss. 26 filed their Second Amended Plaintiffs filed a response to On April 2, 2014, Defendants filed an answer to Plaintiffs' Second Amended Complaint. 27 On June 13, 2014, the parties submitted the pending motions for summary judgment. 28 responses. 29 On July 18, 2014, the parties filed their replies. 30 II. Rule On July 3, 2014, the parties filed their 56 of Standard of Review the Federal Rules of Civil Procedure mandates summary judgment "if the movant shows that there is no genuine dispute as to any material fact judgment as a matter of law." and the movant Fed. R. Civ. P. is entitled to 56(a). A party 24 ( ... cont inued) Defendants' Response to Plaintiffs' Supplemental Status Report, Docket Entry No. 31; see also Hearing Minutes and Order, Docket Entry No. 16; Joint Status Report and Proposed Scheduling Order, Docket Entry No. 18, pp. 1-4. 25Second Amended Complaint, Docket Entry No. 36. 26Plaintiffs' No. 40. Response to Motion to Dismiss, Docket Entry 27Answer, Docket Entry No. 44. 28Defendants' Motion for Summary Judgment, Docket Entry No. 52; Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53. 29Defendants' Response in Opposition to plaintiffs' Motion for Summary Judgment ("Defendants' Response"), Docket Entry No. 58; Plaintiffs' Response to Defendants' Motion for Summary Judgment ("Plaintiffs' Response"), Docket Entry No. 59. 30Defendants' Reply in Support of Motion for Summary Judgment ("Defendants' Reply"), Docket Entry No. 60; Plaintiffs' Reply in Support of Motion for Summary Judgment ("Plaintiffs' Reply") , Docket Entry No. 61. -8- moving for summary judgment "bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005) When the nonmoving party would bear the ultimate burden of proof at trial, satisfy its summary judgment burden by the moving party may '" showing' that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Catrett, 106 S. Ct. 2548, 2554 such a movant (1986). Celotex Corp. v. Rule 56 does not require to negate the elements of the nonmovant' s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). Where the moving party would bear the burden of proof at trial, it must present evidence that would require "a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). Once the movant has carried this burden the nonmovant must show that material facts exist over which there is a genuine issue for trial. 2553-54). Reyna, 401 F.3d at 349 (citing Celotex, 106 S. Ct. at The parties may support the existence or nonexistence of a genuine fact issue by either (1) citing to particular parts of the record, including depositions, documents, electronically stored information, affidavits or declarations, admissions, and interrogatory answers, or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the -9- fact. In reviewing this evidence Fed. R. Civ. P. 56(c) (1) (A)-(B) "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 120 S. Ct. 2097, 2110 (2000). III. "Article Power,' III that Article III Standing the Constitution federal-court is, 'Controversies. "' 1208 (1980). of Inc., limits jurisdiction, federal to 'Judicial 'Cases' and u.S. Parole Comm'n v. Geraghty, 100 S. Ct. 1202, "[T]he requirement that a claimant have standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Nat'l Fed'n of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011) 2759, 2768 (2008)) (quoting Davis v. FEC, 128 S. Ct. (internal quotation marks omitted). "To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent i fairly traceable to the defendant's challenged behaviori and likely to be redressed by a favorable ruling." Id. (citing Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992)). of a statute, as is the "To engage in a pre-enforcement review case here, a plaintiff must show an 'intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and credible threat of prosecution thereunder.'" EI Paso, Tex., 878 F. Supp. 2d 721, 731 Hoyt . a v. City of (W.D. Tex. 2012) (quoting -10- ----------------------- Babbitt v. United Farm Workers Nat'l Union, (1979)). 99 S. Ct. 2301, 2309 "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 112 S. Ct. at 2136. "When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, undergo a criminal relief.'" he 'should not be required to await and prosecution as the Babbitt, 99 S. Ct. at 2309 S. Ct. 739, 745 (1973)). sole means of seeking (quoting Doe v. Bolton, 93 "But 'persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.'" Id. (quoting Younger v. Harris, see also F. Supp. 91 2d at S. 730 Ct. 746, 749 (1971)) i Hoyt, 878 ("An injury for standing purposes must be (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." (citing Lujan, 112 S. Ct. at 2136)). "In determining whether a threat is credible or speculative, the Fifth Circuit 'look [s] to the controversy will become real.'" practical Hoyt, 878 F. (quoting Shields v. Norton, 289 F.3d 832, "In all plaintiff must cases, however, a statutorily proscribed activity." must demonstrate a serious[] statute." Id. interest[] likelihood 835 Supp. that 2d at 731 (5th Cir. intend to a 2002)). engage in "Specifically, plaintiffs in acting contrary to a Nat'l Fed'n of the Blind, 647 F.3d at 209 (quoting Miss. State Democratic Party v. Barbour, -11- 529 F.3d 538, 545 (5th Cir. 2008) (internal quotation marks omitted)). not contest that Plaintiffs' consti tutional interest, Because Defendants do proposed conduct is affected by a the court will look to whether such conduct is proscribed by statute and whether there is a credible threat of prosecution. (acknowledging that Cf. "[i] t 878 F. Supp. 2d at is well-established that 733-34 '[p] etition . is 'core political speech[] '" for which "First circulation . is Amendment protection without Hoyt, deciding such that 'at i[t]s activity zenith'" is and assuming affected with a constitutional interest (quoting Buckley v. Am. Constitutional Law Found., Inc. 1 119 S. Ct. 636 1 639-40 (1999))). IV. Analysis Plaintiffs challenge the constitutionality of eight provisions of the Texas Election Code: (3) (6) § (4) 253.094(a)1 § 253.031(b), (7) § (1) § § 253.094(b), 251.001(12), 251.001(2)1 and (8) respect to each of the eight provisions, address whether Plaintiffs have met standing to challenge the provision. (5) (2) § § 253.096 1 252.001 1 251.001(6).31 With the court will first § their burden to establish The court will then address the merits of those claims for which Plaintiffs have established standing. Plaintiffs l Second Amended Complaint raises both facial and as-applied challenges. "[F]acial and as-applied challenges have 31Second Amended Complaint, Docket Entry No. 36, pp. 36-37. -12- different substantive requirements." Catholic Leadership Coal. of Texas v. Reisman, No. 13-50582, 2014 WL 3930139, at *12 Aug. 12, 2014) (5th Cir. (citing Doe v. Reed, 130 S. Ct. 2811, 2817 (2010)). "[T]o categorize a challenge as facial or as-applied [the court] look[s] to see whether the 'claim and the relief that would follow reach plaintiffs. '" beyond Id. the particular circumstances (quoting Reed, 130 S. Ct. at 2817). of the [ If so, then the claim must "'satisfy [the] standards for a facial challenge to the extent of that reach.' II Id. (quoting Reed, 130 S. Ct. at 2817) . Plaintiffs have two ways to prevail on a facial challenge. Id.; see also United States v. (2010) . "First, Plaintiffs Stevens, can 130 S. 'establish Ct. that 1577, no 1587 set of circumstances exists under which [the law] would be valid or that the statute lacks any plainly legitimate sweep. '" Catholic Leadership, 2014 WL 3930139, at *12 (quoting Stevens, 130 S. Ct. at 1587) . "Second, Plaintiffs may also invalidate a statute overbroad if they demonstrate that 'a substantial number of as [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. '" Id. (quoting Stevens, 130 S. Ct. at 1587). A. Plaintiffs' Challenge to § 253.094(b) Plaintiffs argue that § 253.094 (b) "is a categorical ban on corporate contributions to recall matters and is still the law of -13- Texas. 1132 Defendants challenge 253.094 (b) § argue that because Plaintiffs they have lack failed standing to to "plead any specific facts to demonstrate that the conduct in which they wish to engage will constitute a 'political contribution' actually barred by Defendants' enforcement of and, furthermore, § that is 253.094(a) or (b) ,II Plaintiffs have failed to establish a credible threat of prosecution by the Texas Ethics Commission. 33 1. Plaintiffs' Standing to Challenge Section 253.094 (b) states that "[a] § 253.094(b) corporation or labor organization may not make a political contribution in connection with a recall election, including the circulation and submission of a petition to call an election. (West Supp. 2014). 1I Tex. Elec. Code Ann. Defendants point out that § § 253.094(b) 253.094(b) only prohibits the circulation and submission of a petition to call an when election contribution. 1134 legislature such activity See Hoyt, intended to constitutes 878 F. Supp. prohibit 2d at 734 only "political a ("[T]he Texas corporate political contributions, and not other types of campaign finance acti vi ty. II) ¢ "The Texas Election Code distinguishes political contributions from political expenditures. 1I Hoyt, 878 F. Supp. 2d at 735; see 32Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53, p. 19. 33Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 26. 34Id. at 12. -14- also Catholic Leadership, 2014 WL 3930139, at *2 ("Texas. contributions and two broad categories of political spending: expenditures."). has Relevant to the facts of this case, a "political contribution" is a "direct or indirect transfer of money, goods, services, or any other thing of value," "including the circulation and submission of a petition to call an election," to a "political committee that is offered or given with the intent that it be used on a measure." (West 2012), F. §§ 253.094(b) Supp. 2d at 734-35. hand, any § Tex. Elec. Code Ann. §§ 251.001(2), (3), (5) (West Supp. 2014) ;35 see also Hoyt, 878 A "political expenditure," on the other is "payment of money or any other thing of value" "made by on person 251.001 (6) , ( 7) , a (10) measure. "36 (West Tex. 2012) ;37 see Elec. also Code Ann. Hoyt, 878 F. Supp. 2d at 735. A "measure" is "a question or proposal submitted in an election for an expression of the voters' will and includes the 35The definition of "political contribution" in § 251.001(5) incorporates the definition of "campaign contribution" in § 251.001(3), which in turn incorporates the definition of "contribution" in § 251.001(2) 36As noted by the Fifth Circuit, "It is important not to conceive of expenditures and contributions in opposition to each other. Rather, contributions are best thought of as a subset of expenditures: all contributions are expenditures, but not all expenditures are contributions." Catholic Leadership, 2014 WL 3930139, at n.7. 37The definition of "political expenditure" In § 251.001 (10) incorporates the definition of "campaign expenditure" in § 251.001(7), which in turn incorporates the definition of "expenditure" in § 251.001(6). -15- circulation and submission of a petition to determine whether a question or proposal is required to be submitted in an election for an § expression 251.001(19) "measure" of the (West voters' It 2012). Tex. will." is Elec. undisputed Code Ann. the term that "includes a recall election as well as any effort to circulate petitions in support of holding a recall election." 38 "Whether a particular contribution depends on the Hoyt, 878 F. Supp. 2d at 735. activity constitutes specific facts of a the political situation. II "[A] political contribution requires contributions be made 'to a . . . political committee' and be given with the "intent that it be used . . on a measure. '" Id. Defendants allege that "to the extent each church wishes to engage in [efforts related to recall elections] on its own and without coordinating with a candidate or political committee such as by funding their own ads to support a recall effort, or by advertising a recall effort on a church website" would constitute a political "direct campaign expenditure, contribution, "and implicated by [§ 253.094 (b) ] ."39 therefore would such activity II not rather than a be activity Defendants further allege that "to the extent the pastor of each of the Plaintiff churches wishes to 38Defendants' Response in Opposition, Docket Entry No.7, pp. 10-11i see also Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 11 i Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53, pp. 30, 38. 39Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 21. -16- --------------------------- advocate independently to his or her congregation in support of a particular recall effort l prohibited by § 253.094. that activity is neither covered nor ff40 Defendants contend that "such speech would not constitute a transfer of money goods or services in I coordination with a candidate or political committee and therefore I would not constitute a prohibited 'contribution. lff41 The court agrees that to the extent Plaintiffs wish to engage in recall efforts independently of each other or any political committee I such activity is not implicated by § 253.094(b). Plaintiffs therefore cannot show that such activity is "proscribed by statute. ff Miss. Nat/l Fed/n of the Blind l 647 F.3d at 208 State Democratic PartYI 529 F.3d at Plaintiffs lack standing to challenge § 545). (quoting Accordingly, 253.094(b) with regard to such conduct. However I Plaintiffs allege that they also intend to coordinate with each other "and with other individuals and organizations l for the principal purpose of circulating and submitting recall petitions and otherwise advocating recalls l including through the raising and spending of funds I and the other actions" identified in their Second Amended Complaint. 42 Plaintiffs specifically allege that they 4°Id. ~~ 42Second Amended Complaint 5.1-5.3. I Docket Entry No. -17- 36 1 pp. 11-16 are Texas corporations and want to engage in the circulation and submission of petitions to call for a recall election, by working in concert with each of the other plaintiffs and other interested individuals and organizations, to circulate and submit petitions, and publicly advocate the recall petition efforts, including through the concerted raising and spending of funds and contribution of facilities and resources. 43 Defendants acknowledge that Plaintiffs' proposed coordination will render the three churches a "political committee" under Texas law. 44 See Tex. Elec. ("\Political committee' principal purpose Code § 251.001(12) (West 2012) means a group of persons that has as a accepting political expenditures.") Ann. i political contributions or making Catholic Leadership, 2014 WL 3930139, at n.27 ("Texas does not make the political committee label voluntary -- groups wishing to engage in collective political speech must comply with the burdens imposed by Texas law."). Thus, Plaintiffs intend to engage in conduct that is proscribed by § 253.094(b) to the extent that each intends to make a "direct or indirect transfer of money, goods, services, or any other thing of value," toward their coordinated efforts "with the intent that it be used . . . on a measure.,,45 2012). Tex. Elec. Code Ann. §§ 251.001(2), (3), (5) (West For example, Plaintiffs allege that they each "intend[] to 43Id. at 26 ~ 10.7. 44Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 21-22. 45As noted above, "the circulation and submission of a petition to call an election" may constitute a political contribution and a recall election is a measure. See Tex. Elec. Code Ann. § 251.001(19) (West 2012), § 253.094(b) (West Supp. 2014). -18- contribute funds from [their] regular budget to support the recall" and to " [c]oordinate with the two other Plaintiff churches in this for matter the principal purpose of circulating submitting recall petitions," among other things. 46 tion of "funds" and Any contribu- from their budgets to their coordinated recall effort would constitute a prohibited political contribution under §253.094(b). Defendants § 253.094(b) .47 acknowledge that such activity is barred by Defendants argue, however, that Plaintiffs cannot establish a credible threat of prosecution in light of Plaintiffs' ability to register as a "direct campaign expenditure only committee" and a recent federal court injunction barring Defendants from enforcing "laws, rules, or regulations" that prohibit corporate political contributions to direct campaign expenditure only committees. ,,48 (a) The The Texans for Free Enterprise Injunction injunction at issue arose out of a challenge to § 253.094(a) and states: ~~ 46Second Amended Complaint, 5.1-5.3. Docket Entry No. 36, pp. 11-16 47Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 13 ("For purposes of the instant case, . a corporation in Texas cannot give money, goods or services to a candidate or to a group that qualifies as a political committee, if the intent of the corporation in giving that [] money, good or service [is that it bel used in connection with a recall election.") . 48Id. at 22-23, 26-28. -19- .. __......... _----------- Defendants TEXAS ETHICS COMMISSION, DAVID A. REISMAN, and their commissioners, agents, servants, employees, any other persons or entities in active concert or participation with Defendants are permanently enjoined from: 1. Enforcing or attempting to enforce the contribution restrictions of Sections 253.003 (b) and 253.094 (a) of the Texas Election Code, and any applicable rules and regulations regarding those provisions when applied to contributions to Texans for Free Enterprise and all other similarly si tuated corporations for the purpose of making direct campaign expendituresi and, 2. Enacting or attempting to enforce any other laws, rules, or regulations that violate the First Amendment rights of Texans for Free Enterprise and all other similarly situated corporations by directly or indirectly prohibiting contributions to a direct campaign expenditure-only committee for the purpose of making direct campaign expenditures. 49 Defendants argue that because Plaintiffs "disclaim any intention to coordinate their activities with any person who is a candidate for, or who plans to be a candidate for, the offices for which they plan to seek a recall," any political committee that they form could register as a "direct campaign expenditure only" committee, Defendants would be barred from enforcing § and 253.094(b) to prohibit Plaintiffs' proposed political contributions to that committee. 5o Plaintiffs Injunction does argue not that protect the them Texans from for Free prosecution Enterprise for their 49Agreed Final Judgment and Permanent Injunction at 3-4 Texans for Free Enterprise v. Texas Ethics Commission, No. 1:12-cv-0845-LY (W.D. Tex. Dec. 20, 2013) ("Texans for Free Enterprise Injunction"), attached as Exhibit 1 to Defendants' Motion for Summary Judgment, Docket Entry No. 52-1. 50Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 22-23. -20- intended conduct. Plaintiffs point out that the injunction arose out of a challenge to § 253.094(a), that "Free Enterprise did not involve a challenge to subsection (b), and the resulting injunction does not mention subsection (b) ."51 Plaintiffs observe that "Part '1.' of the injunction only concerned the statutes at issue in that sections case regulations 253.003(b) and 'regarding those provisions.' argue that "Part and 252.094(a) 1152 rules Plaintiffs further does not cover Plaintiffs' '2.' and intended conduct because Plaintiffs' activities are assured to take them outside a the definition of direct campaign expenditure-only commi t tee. ,,53 (b) Direct Campaign Expenditure Only Committees Plaintiffs argue that any political committee they form by coordinating their efforts to, among other things, circulate recall petitions, cannot qualify as a direct campaign expenditure only committee because the committee will inevitably make political contributions to other political committees working on the recall. 54 51Plaintiffs' Response, Docket Entry No. 59, p. 14. 52Id. 53Id. 54Id. at 15-18; see also Joint Heirs' Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-19, p. 8; Houston's First Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-20, p. 8; Faith Outreach International's Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-21, p. 8. -21- Plaintiffs' campaign argument expenditure. expenditure rests on Under II Texas's Texas definition law a of "direct "direct campaign is defined to mean "a campaign expenditure that does ll not constitute a campaign contribution by the person making the expenditure. II Tex. Elec. Code Ann. § 251.001(8) (West 2012). Regulations issued by the Texas Ethics Commission state: (5) A campaign expenditure is not a contribution from the person making the expenditure if: (A) it is made without the prior consent approval of the candidate or officeholder whose behalf the expenditure was made; or or on (B) it is made in connection with a measure, but is not a political contribution to a political committee supporting or opposing the measure. 1 Tex. Admin Code § 20.1. Plaintiffs contend that because their political committee "plans to coordinate its recall activity with other committees 'supporting or opposing the measure,' this results in a contribution to the other committee. ,,55 Therefore, because the committee cannot limit itself to direct campaign expenditures, it cannot register as a direct campaign expenditure only committee. 56 However, as Defendants explain in their Reply, under Texas law a "direct campaign expenditure only committee" is not a political committee Instead, that only under Texas makes "direct law "direct a campaign campaign expenditures .1157 expenditure 55Id. 57Defendants' Reply, Docket Entry No. 60, pp. 8-11. -22- only committee" is a political committee that files an affidavit stating that it "will not use its political contributions to make political contributions to any candidate for elective office, officeholder, or political committee that makes a political contribution to a candidate or officeholder."s8 1 Tex. Admin. Code § 22.5. Thus, a "direct campaign expenditure only committee" may make both direct campaign expenditures and political contributions to other direct campaign expenditure only committees. Accordingly, Defendants state that even if Plaintiffs' political committee makes political contributions to another political committee, it may still register as a "direct campaign expenditure only committee," as long as such contributions are not made to political committees that "political contribution[s] to a candidate or officeholder." (c) Although committee may make rd. Plaintiffs' Proposed Political Committee it appears organize that and Plaintiffs' register as proposed a "direct political campaign 58According to Defendants, "the term 'direct campaign expenditure only committee' is a new term of art -- not previously found in the Texas Election Code or [Texas Ethics Commission] Rules -- that came into existence as a direct result of the Texans for Free Enterprise lawsuit." Defendants' Reply, Docket Entry No. 60, pp. 8-9. "[A] 'direct campaign expenditure only committee' was defined in Texans for Free Enterprise to mean a political committee that 'does not make any contributions to candidates or their official committees.'" rd. at 9 (quoting Texans for Free Enterprise, 732 F.3d at 536). Accordingly, "pursuant to Texans for Free Enterprise's controlling definition of the newly-created term 'direct campaign expenditure only committee,' a 'direct campaign expenditure only committee' that registers with [the Texas Ethics Commission] as such can contribute funds to other political committees, so long as that political committee is not connected with a candidate." rd. -23- -----------------_.. expenditure only committee," whether it will do so is unclear. Plaintiffs have disclaimed any intention to coordinate their activities with any person who is a candidate for, or who plans to be a candidate for, recall. 59 a Yet, Plaintiffs also allege that they do not want to be political committee the offices for which they plan to seek a committee disclosure at all and requirements. 6o challenge Texas's Plaintiffs have political made no representation that they would organize and register their proposed political committee as a "direct committee" if permitted to do so. campaign expenditure only Although Plaintiffs testified to their willingness to file "something with the Ethics Commission" stating that they would not coordinate with any candidate,61 they 59Joint Heirs' Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-19, p. 7; Houston's First Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-20, p. 7; Faith Outreach International's Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-21, p. 7. 6°Second Amended Complaint, Docket Entry No. 36, pp. 29-31 Plaintiffs' challenge to Texas's political committee disclosure requirements is discussed in detail below. ~~ 10.36-10.54. 61See Transcript of Injunction Hearing, Docket Entry No. 26, pp. 86, 102-03, 122. The pastors for each of the plaintiff churches testified as follows: [by Defendants' counsel] And would you have any objection to filing something with the Ethics Commission that stated that on the record, that you would agree not to -- that your organization agrees not to engage in any activity with the coordination of the candidate? Q (continued ... ) -24- 61 ( ¢ ¢ ¢ continued) A [by Pastor Flowers of plaintiff Faith Outreach International Center] I wouldn't have any objection to that. Id. at 86:9-13. Q [by Defendants' counsel] And would you be willing to file something like a sworn statement that says that your church would agree that it is not going to give any money or make any kind of expenditures from its own funds in support of a particular candidate in coordination with a candidate? Would you be willing to agree to something like that and file a statement to that effect? A [by Pastor Bergstrom of plaintiff Houston's I would be willing to do that. Church of God] First Id. at 102:20-103:1. Q [by Defendants' counsel] Would you be willing -- you testified a moment ago that you don't intend to coordinate with the candidates, and that really means not only giving money to candidates, but, for example, having a candidate call you up and say, "It would be really great if you got your church on board and starting gathering petitions for me." You don't intend to do any of that kind of activity, do you? A [by Pastor McCrutcheon Fellowship Church] No. of plaintiff Joint Heirs Q Okay. Would you be willing to swear that you wouldn't do any of that kind of activity or coordinate with a group who does that kind of activity? A Coordinate with a group? Q Coordinate with some other other group is helping out a candidate asked them to. Would that you wouldn't help out that group. Let's say some candidate because the you be willing to agree other group? THE COURT: You won't coordinate with any group that is supporting a specific candidate? Would you agree to that? (continued ... ) -25- also testified that they are opposed to registering their political committee in any form 62 and have made no affirmative representation cont inued) THE WITNESS: Yes. 61 ( ¢ ¢ ¢ Id. at 122:2-20. 62See id. at 75, 103, 124-25. The pastor for each of the plaintiff churches testified as follows: Q. [by Defendants' Counsel] Other than the costs that we talked about associated with having to register as a political committee, do you have any other objections yourself to having to register as a political committee, if you form a group that is qualified as one? A. [by Pastor Bergstrom of plaintiff Houston's First Church of God] Personally, I believe the church should have the freedom to be what the church is supposed to be, to be the moral compass of our communities, of our state. And I believe in a perfect world, we would have the right to do that. Q. Well, let me be clear. So you will be able to do it. You would just have to file some paperwork if you did it in the form of political committees. So do you understand that aspect? A. And part of my objection to the political committee is the expense. Q. So other than -- that's what I'm trying to get at. Other than the expense, is there something else that you object to? A. Personally, just my own convictions, I would object to our having to do that. Q. You feel that churches shouldn't have to do that? A. Correct. Id. at 103:2-21. (continued ... ) -26- continued) Q. [by Defendantst counsel] You testified earlier that you think it would be too expensive to file paperwork as a political committee t correct? 62 ( ¢ ¢ ¢ A. [by Pastor McCrutcheon Fellowship Church] Dh-huh. of plaintiff Joint Heirs Q. Do you have any other objections to having to file paperwork as a political committee t if your church qualified as part of one? I dont t I wouldntt even want to be part of a A. political committee at all. Wellt but you do want to have discussions with other churches in an attempt to influence a recall election t right? That is what your testimony is todaYt correct? Q. A. I thoughtt you know -- I guess that is where I was somewhat confused at times. Let me ask you: Why wouldntt be you what to do that? Why wouldntt be want to be considered a political committee t other than the cost issue? Q. A. Cost is one of the main thingst but also I try to -the other part of it is there is so much -- I feel that is an intrusion -- Q. So you just dontt want to basically have to file more paperwork with the government? Would that be a way of saying that? A. I guess you could say that. Id. at 123:13-124:10. Q. [by Plaintiffst counsel] political committee? A. [by Pastor Flowers of International Center] No. Q. Do you want to become a plaintiff Faith Outreach Why not? (continued ... ) -27- that they will file the required affidavit. Indeed, Plaintiffs have suggested that they may not organize a political committee at all if required to comply with Texas's treasurer-appointment and disclosure requirements. 63 The court therefore cannot discern whether Plaintiffs' proposed political committee would constitute a "direct campaign expenditure only" committee, or some other general- or specific-purpose committee under Texas law. 62 ( ¢ ¢ ¢ continued) A. That's a good question. I think that just as other entities within society have the freedom to act, freedom to speak -- Q. Like what? A. Much like the press. I don't know of any hoops that they have to jump through, any kind of arrangements they have to get involved in in order to engage in these issues. And the freedom of speech, especially the freedom of the church to operate under the parameters that was given in scripture should not be in any way impinged or hindered by all of these activities and moneys that have to be spent and things that have to be said and done along those lines. Id. at 75:4-18. 63See, e.g., id.; see also id. at 86:14-88:16 (discussing the costs associated with forming a political committee and mentioning that it would be "cost prohibitive" to do so); id. at 93:3-23 (expressing unwillingness to form a political committee because fundraising for the committee "would be a complete distraction" from the church's efforts "to rebuild a hospital in Kenya"); id. at 115:2-9 (stating in reference to the costs associated with forming a political committee that even "[s] ixty dollars would have an effect on [the] church" and that in light of those costs "it seems like [the church is] going to be left out of the game if [it] ha[s] to [set up a measures-only political committee]"). -28- 2. Plaintiffs Have Not § 253.094(b) Established Standing to Challenge Because the court cannot discern the nature of Plaintiffs' proposed political committee, the court cannot determine whether political contributions to that committee would fall within the realm of activity that Defendants are barred from enforcing under the Texans for Free Enterprise Injunction. § Moreover, although 253.094(b) prohibits political contributions in connection with a recall election, without any indication from Plaintiffs that their committee would organize and register as a "direct campaign expenditure only committee" the political contributions to that court cannot determine whether committee would be permissible under Texans for Free Enterprise or would be lawfully proscribed in furtherance of Texas's interest in preventing circumvention of its ban on corporate Leadership Coal. contributions of WL 3930139, at *25-27 Election Code § Texas to v. candidates. 64 Reisman, (5th Cir. Aug. 12, No. 2014) See Catholic 13-50582, 2014 (upholding Texas 253.094(a) 's restriction on corporate contributions 64See Defendants' Answers to Plaintiffs' Interrogatories, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-24, p. 12 ("To the extent Plaintiffs' challenge the prohibition on corporations making contributions to political committees that then contribute directly to candidates, courts have recognized the government's interests in preventing corporations from using committees as a 'pass through' to circumvent lawful prohibi tions on direct contributions to candidates, and these latter prohibitions are based in part on the government's legitimate anti-corruption interests." (citing Catholic Leadership Coal. of Texas v. Reisman, No. A-12-CA-566-SS, 2013 WL 2404066 (W.D. Tex. May 30, 2013), aff'd in part and rev'd in part, 2014 WL 3930139 (5th Cir. Aug. 12, 2014)) i id. at 15. -29- to political committees as applied to the in-kind contribution of an email mailing list from a corporation to a political committee that engaged in "both independent expenditures contributions to candidates" because contributions committees to political and direct "Texas's ban on corporate engaging in political contributions serves as an anticircumvention measure to prevent corporations from using a political committee to do an end-run around Texas's direct contribution ban"). Accordingly, the court concludes that Plaintiffs have failed to plead a justiciable controversy with regard to their claims that § 253.094 (b) prohibits them from lawfully "raising and spending funds in support of recall petitions" 65 or making other political contributions to their proposed political committee. F. Supp. 2d at 730 concrete See Hoyt, 878 ("An injury for standing purposes must be (a) and particularized, conjectural or hypothetical. II and (b) actual or imminent, not (citing Lujan, 112 S. Ct. at 2136». Plaintiffs also allege that 253.094 (b) is overbroad. 66 § "The overbreadth doctrine permits a litigant to 'challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.' ~~ ~ 65Second Amended Complaint, 5.1-5.3. Docket Entry No. 66S ee Second Amended Complaint, 10.65. -30- II Nat'l 36, pp. 11-16 Docket Entry No. 36, p. 33 Fed'n of the Blind, 647 F.3d at 210 (quoting Broadrick v. Oklahoma, 93 S. Ct. 2908, 2916 "But (1973)). the overbreadth doctrine applies on a provision by provision basis: the plaintiff must establish injury under a particular provision of a regulation that is validly applied to its conduct, then assert a facial challenge, under the overbreadth doctrine, to vindicate the rights of others not before the court under that provision. Local 5 v. City of Hous., 595 F.3d 588, (internal quotation marks omitted)). retains rigor even in an II (quoting SEIU, Id. 598 (5th Cir. 2010) Thus, "'Article III standing overbreadth claim. '" Id. (quoting Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th Cir. 2010»). "'Although various prudential standing principles have been relaxed in some First Amendment cases, this relaxation does not eliminate the distinct and independent requirement of Article III that the dispute between the parties must amount to a case or controversy. 374, 385 n.4 ,/I Id. (quoting Henderson v. Stalder, 287 F. 3d (5th Cir. 2002) (Jones, C.J., concurring». Even if the court were to accept Plaintiffs' argument that the Texans for Free Enterprise Injunction does not enjoin Defendants from enforcing 253.094(b), § in light of Plaintiffs' failure to indicate whether they will engage in their proposed conduct if required to comply with Texas's political requirements, demonstrated the a court is "'practical not committee disclosure convinced that likelihood that -31- a Plaintiffs have controversy will become real.'" F.3d at 835). Hoyt, 878 F. Supp. 2d at 731 (quoting Shields, 289 As explained in testified that § IV.A.1(c) above, Plaintiffs have they are opposed to registering their proposed political committee in any form and have suggested that they may not organize a political committee at all if required to comply with Texas's treasurer-appointment and disclosure requirements. 67 Plaintiffs have made no subsequent effort to disavow their testimony. In light of Plaintiffs' equivocation about whether they would in fact engage in their proposed conduct if doing so would subject them to Texas's political committee disclosure requirements, and because Plaintiffs have not developed the factual basis for standing with sufficient particularity, the court is not convinced that Plaintiffs have met their burden to demonstrate either a serious interest in acting contrary to enforcement beyond mere speculation. 2136-37 § 253.094(b) or a threat of See Lujan, 112 S. Ct. at (holding that "[t]he party invoking federal jurisdiction 67Plaintiffs have had two opportunities to create a fact issue on standing, both in their original affidavits attached to their Motion for Preliminary Injunction and in their subsequent affidavits attached to their Motion for Summary Judgment. In none of Plaintiffs' evidence or briefing do they ever indicate that they would be willing to coordinate if required to comply with Texas's political committee disclosure requirements, nor do they make any indication of how they intend to register or organize their proposed political committee within the framework provided by the Texas Election Code beyond their argument that their activities would "take them outside the definition of a direct campaign expendi ture-only committee. Plaintiffs' Reply, Docket Entry No. 59, p. 14. ff -32- bears the burden of establishing" each of the elements of standing "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation," which, "[i]n response to a summary judgment motion," requires the plaintiff to "set forth establish Highways by affidavit standing); & cf. or other Eyikogbe evidence v. specific Texas State Pub. Transp., 990 F.2d 1252 (5th Cir. 1993) facts" to Dep't of ("Under Rule 56, a district court is not required to scour the record in search of evidence to support the non-movant; nor is the district court required to concoct arguments in opposition to the movant."). Accordingly, the court concludes that Plaintiffs have not met their burden to establish standing to challenge § 253.094 (b) .68 68Plaintiffs also argue that they can demonstrate a credible threat of enforcement because § 253.094 (b) has "already been enforced against other churches and individuals in Texas for allegedly doing some of the same things the Plaintiffs seek to do here. " Second Amended Complaint, Docket Entry No. 36, p. 23 ~ 8.1. Plaintiffs reference enforcement actions brought by the mayor and district attorney of El Paso. Id. at 23-24 ~~ 8.2-8.8. Defendants argue that [t]o the extent Plaintiffs assert that they have standing because some government other than [the Texas Ethics Commission] might enforce § 253.094 against them, Plaintiffs have cited no authority to support the proposition that an injunction issued against [the Texas Ethics Commission] here would be in any way effective to redress any claimed injury related to enforcement of the Election Code by non-parties to this suit. Defendants' Reply, Docket Entry No. 60, p. 7 n.1i see also Defendants' Response, Docket Entry No. 58, p. 10i cf. Hoyt, 878 F. Supp. 2d at 743 ("The Court is at a loss to see how granting an (continued ... ) -33- Plaintiffs' claims challenging § 253.094 (b) will dismissed for lack of subject matter jurisdiction. F. Supp. 2d at 725, 744 therefore be Cf. Hoyt, 878 (dismissing claims that "§ 253.094(b) of the Election Code violates Plaintiffs' freedom of speech, freedom of religion, protection" upon a finding challenge constitutional rights of 253.094(b)). B. § Plaintiffs and equal lacked standing to Plaintiffs' Challenge to § 253.096 Plaintiffs § that due process, 253.096. 69 bring facial and as-applied Section 253.096 provides that "[a] challenges to corporation or labor organization may make campaign contributions from its own property in connection with an election on a measure only to a 68 ( ... continued) injunction against Cook would redress Plaintiffs' injury. A ruling against Cook in this case would operate only against Cook; it would not operate to prevent non-party citizens from bringing suit to enjoin Plaintiffs from circulating recall petitions in the future.") . The court agrees with Defendants that Plaintiffs' alleged fear of enforcement by parties not before the court does not establish "a [case or] controversy as against [Defendants]." Defendants' Response, Docket Entry No. 58, p. 10. 69See Second Amended Complaint, Docket Entry No. 36, pp. 36-37 ("Texas Election Code § 253.096 is unconstitutional under the First Amendment to the United States Constitution as applied to Plaintiffs[.]"); id. at 34 (alleging that § 253.096 (which Plaintiffs refer to as the "PAC Requirement") "on [its] face and as applied, chill[s] Plaintiffs' exercise of religion," has "placed a substantial burden on Plaintiffs' religious beliefs and practices ," is "not neutral or generally applicable," and is "susceptible to selective enforcement"); id. at 35 (alleging that § 253.096 "restrict [s] the right of Plaintiffs to petition the government for redress of grievances" and "treat [s] similarly situated persons differently concerning their ability to engage in protected constitutional activity-speech") . -34- for committee political exclusively. /170 supporting Tex. Elec. Code Ann. Plaintiffs allege that under § opposing or 253.096 measures (West 2012) . 253.096, "[i]f an incorporated § church desires to circulate recall petitions or otherwise speak in favor of a recall election or against a recall election, only do so Plaintiffs by forming contend a that [political committee] measures-only "[r] equiring political a it can committee.,,71 corporation to form a before making a political contribution, or requiring the corporation to only make a contribution through a [political committee] is an unconstitutional infringement on free speech. 72 /I 1. Plaintiffs' Standing to Challenge § 253.096 Defendants argue that Plaintiffs lack standing to challenge § 253.096 conduct. 73 because it does not apply to Instead, Defendants contend that Plaintiffs' § proposed 253.094 (b) , s narrower 7oFor purposes of the present case, a "campaign contribution" is a "direct or indirect transfer of money, goods, services, or any other thing of value," "to a "pol i tical commi t tee. . wi th the intent that it be used. . on a measure." Tex. Elec. Code Ann. §§ 251.001(2), (3) (West 2012) The definition of "campaign contribution" in § 251.001(3) incorporates the definition of "contribution" in § 25l. 001 (2). As noted in § IV.A above, the parties acknowledge that Plaintiffs' proposed conduct will render them a political committee under Texas law. See Tex. Elec. Code Ann. § 2 5 1 . 0 0 1 (12) (We s t 2 0 12) . 71Second Amended Complaint, Docket Entry No. 36, p. 9 72 I d. at 2 7 ~ ~ 4.2. 10.20. 73Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 12-13 & n.4, pp. 26, 28; Defendants' Response in Opposition, (continued ... ) -35- prohibition on corporate political contributions "in connection with a recall election" controls. 74 (a) The Applicability of § 253.096 to Proposed Recall-Related Activities Emphasizing the 253.094(b) 1n Defendants state contributions the by interplay of Texas that a § §§ Election Code's 253.094(a) corporation," 253.094 (a), 253.096, regulatory "prohibits unless Plaintiffs' "the all and scheme, political contribution 1S authorized by some other section of the Election Code. ff75 Relevant here, Election Code § 253.096 permits corporations to make political contributions "in connection with an election on a measure only to a political committee for supporting or opposing measures exclusively." Because corporations are authorized under § 253.096 to make contributions to political committees in connection with a "measure," and because a recall election is a type of "measure," contributions to political committees in connection with a recall election would, at first glance, appear to be authorized by § 253.096. However, the more specific statute, § 253.094(b), which expressly prohibits corporate political contributions in connection with a recall, trumps the more general authority corporations are given in § 253.096 to make political contributions to support measures. 76 73 ( ... cont inued) Docket Entry No.7, pp. 9-13, 29i Defendants' Reply, Docket Entry No. 60, pp. 11-12. 74Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 12-13 & n.4i Defendants' Response in Opposition, Docket Entry No.7, p. 12. 75Defendants' Motion for Summary Judgment, Docket Entry No. 52, Defendants' Response in Opposition, Docket Entry No.7, p. 11. p. pp. 12i 76Defendants' Motion for Summary Judgment, Docket Entry No. 52, 12-13 (citations omitted) i see also Defendants' Response in (continued ... ) -36- Plaintiffs appear to acknowledge that than 253.096 § Nonetheless that 1 1 enforced the citing Cook 253.096 § is against chills controlling l churches 76 ( ¢ ¢ ¢ cont inued) Opposition l Docket Entry No. Texas Government Codel 71 speech and 253.094(b) provision 385 S.W.3d at 594 protected other § 1 in 1 this rather case. 77 Plaintiffs contend because it has individuals in Texas pp. 11-12. Under "been for 311.026 of the § (a) If a general provision conflicts with a special or local provision l the provisions shall be construed l if possible l so that effect is given to both. (b) If the conflict between the general provision and the special or local provision is irreconcilable the special or local provision prevails as an exception to the general provision l unless the general provision is the later enactment and the manifest intent is that the general provision prevail. 1 Tex. Gov l t Code Ann. § 311.002 (West 2013) . 311.026; § see also Tex. GOVI t Code Ann. 77See Plaintiffs Motion for Summary Judgment Docket Entry No. 53 p. 17 n. 8 ("While § 253.096 is a general provision permitting corporate contributions to measures-only committees l § 253.094 (b) specifically prohibits corporate contributions in connection with recalls. The Cook court was clearly wrong on this point as well -- § 253.094(b) controls and means that Plaintiffs may not simply set up a measures-only committee to make recall contributions under the statutes as written." (discussing Cook v. Tom Brown Ministries l 385 S.W.3d 592 (Tex. App.-EI Paso 2012 pet. denied) ) ) . Plaintiffs Second Amended Complaint alleges that l intend to "do[] any of the [identified] activities in Plaintiffs connection with a measures-only issue in addition to recall petition matters." Second Amended Complaint Docket Entry No. 36, p. 13 ~ 5.1(m)1 p. 14 ~ 5.2(m)1 pp. 15-16 ~ 5.3(1). However 1 Plaintiffs have not identified a measure other than the recall efforts in San Antonio and Houston for which they intend to make a campaign contribution. 1 1 1 1 1 1 1 -37- allegedly doing some of the same things the Plaintiffs seek to do here.,,78 (b) Cook v. Tom Brown Ministries In Cook a Texas appellate court instructed the El Paso City Clerk to decertify recall petitions after concluding that an incorporated church had made prohibited political and campaign contributions in connection with a recall election. 601-03 1 608. 385 S.W.3d at The court in Cook found that an incorporated church "made campaign contributions from its own property in connection with a measure-only recall election without properly making the contributions § 253. 096 . 79 to a measure-only committee" in violation of I d . at 603. Defendants have disavowed the Cook court/s interpretation of §§ 253.094(b) and 253.096. 80 Defendants argue that despite Cook 78Second Amended Complaint 1 Docket Entry No. 36 1 p. 23 79The Cook opinion is discussed in more detail in § ~ l 8.1. IV. E below. 80Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 18; Defendants Response in Opposition Docket Entry No.7, p. 17; see also id. at 29 (("[T]o the extent Plaintiffs[] complain that § 253.094(b) is overly burdensome because they must form a 'measures onlyl political committee under § 253.096 in order to expend any funds or donate any goods or services, in connection with a recall election that argument is based on [a] complete misreading of the law. The formation of a 'measures onlyl committee will not permit a corporation to make 'political contributions in connection with a recall election because the more specific prohibition on contributions to recall elections in § 253.094 (b) trumps the less specific § 253.096. Put simply, § 253.096 has no applicability to the facts of Plaintiffs' case; accordinglYI Plaintiffs lack standing to maintain any challenge to (continued ... ) 1 l 1 l l -38- "§ 253.096 does not even apply to the facts of this case because it is not applicable in the recall election context. ,,81 argue that because political contributions in Defendants connection with recall elections are prohibited in their entirety, they cannot be restricted to measures -only committees. 82 argue that § contributions. 83 253.096 is not a Moreover, prohibition Defendants of campaign Rather, it authorizes campaign contributions that are otherwise separately prohibited under § 253.094(a) .84 Plaintiffs argue that" [t] he Attorney General wants this Court to accept his opinion on how the law should be interpreted and ignore binding precedent in Texas as to how the law is actually being enforced." 85 Plaintiffs further contend that "any assurances by Defendants unconstitutional that the manner law rings will hollow" not be because applied "the in an Attorney General's Office was presented with an opportunity to prevent or 80 ( ... continued) § 253.096 and lack standing to challenge § 253.094(b) on the basis that it implicates the need to form a political committee under § 253.096./1). SlDefendants' Motion for Summary Judgment, Docket Entry No. 52, p. 28; see also id. at 17-19, 27-28; Defendants' Response in Opposition, Docket Entry No.7, p. 29. S2Id. 83Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 12-14; Defendants' Response in Opposition, Docket Entry No.7, pp. 10-13. 85Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53, p. 34. -39- correct the misapplications of the law in Cook but chose not to do so. ,,86 Accordingly, Plaintiffs argue that the Cook court's "interpretation of the state Election Code is currently the law in Texas, to a ,,87 and "[ t] he Attorney General's opinion as stated in a brief court does not supersede a Texas Appellate Court opinion, especially when it is not backed up by any concrete regulations or advisory opinions limiting the scope of the laws. ,,88 Given the controversy in Cook 89 and the resulting opinion from the Texas court of appeals, Plaintiffs argue with some force that "the law is in such a state of disarray that not even lawyers at the top of their field can agree as to the scope and reach of § § 253.094 (b) and 253.096.,,90 86Plaintiffs' First Amended Reply, Docket Entry No. 9-1, p. 13 i see also Affidavit of Troy Brown in Support of Motion for Preliminary Injunction, attached to Motion for Preliminary Injunction, Docket Entry No. 9-4. 87Id. at 14. 88Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53, pp. 34-35. 89=S-=e:...::e"-','----=e::...;.:...;g~., Plaintiffs' 39-41. Brief of Appellant John F. Cook, attached to First Amended Reply, Docket Entry No. 9-10, pp. 33, 90Plaintiffs' Motion For Summary Judgment, Docket Entry No. 53, p. 34; see also id. ("The Attorney General, Texas Appellate Court justices and lawyers for the parties in Cook cannot even agree as to what the law proscribes or prescribes. How can a normal citizen be expected to understand and thus speak without fear of criminal punishment?") . -40- 2. Plaintiffs' have not established that they have standing to challenge § 253.096. As noted above, Plaintiffs acknowledge that because they are prohibited from making they 253.094 (b) , § corporate political cannot take advantage authorization of campaign contributions election on a measure." 9l § of under 253.096's § "in connection with an See Tex. Elec. Code Ann. § 253.096 (West Plaintiffs contend, however, that "if th[e] Court enjoins 2012) enforcement the contributions of the ban recall on [in contributions 253.094(b)], recalls will remain defined as a type of 'measure,' and therefore 253.096 would be applicable to the contributions at § issue here." 92 have § not Because, as explained in met their burden to § establish IV.A above, standing 253.094(b), the court need not consider whether apply to Plaintiffs' conduct were § § Plaintiffs to challenge 253.096 would 253.094(b) enjoined. Plaintiffs also allege that they intend to coordinate their "activities in connection with a measures-only issue in addition to recall petition matters.,,93 However, they have identified no measures-only issue other than the recall efforts in San Antonio and Houston for which they wish to make a campaign contribution. Nor have they 9lS ee id. identified any political committee engaged in at 17 n.8 92Plaintiffs' Response, Docket Entry No. 59, p. 12. ~~ 93Second Amended Complaint, 5.1-5.3. Docket Entry No. -41- 36, pp. 11-16 measures-only issues other than recall elections to which such a The court therefore concludes that contribution could be made. Plaintiffs have not met their burden to establish a serious intent to act contrary to § 253.096 with regard to non-recall measures. In addition, because Plaintiffs have presented no evidence or made any affirmative representation that they would file the affidavit necessary to designate their proposed political committee as a "direct campaign expenditure only committee," the court need not consider whether, in light of the Fifth Circuit's opinion in Texans for Free Enterprise, § 253.096 might apply to any "direct campaign expenditure only committee" Moreover, Plaintiffs have not committee they form by constitute a might "committee i see also id. for § alleged supporting 251.001 (4) § any their form. political efforts opposing will measures § 253.096 (defining "general-purpose 251.001 (3) purpose committee" under Texas law). § or might See Tex. Elec. Code Ann. committee" under Texas law); id. to show that whether coordinating exclusively" under Texas law. (West 2012) Plaintiffs (defining "specific- Plaintiffs have simply failed 253.096 proscribes any of their proposed activity. The court therefore concludes that Plaintiffs have not met their burden to establish standing to challenge § 253.096. C. Plaintiffs' Challenge to § 253.094(a) Plaintiffs allege that § 253.094(a) "is facially unconstitutional under the First Amendment to the United States -42- --------------------_ _----------... constitution to the extent it prohibits corporations from making political contributions in connection with a recall election or, In the al ternati ve, Plaintiffs.1/94 253.094 (a) § is unconstitutional as applied to Section 253.094 (a) "prohibits corporations 'mak[ing] a[n unauthorized] political contribution.'" Free Enterprise, Like 253.094(a)). § § 732 F.3d at 536 (quoting Tex. 253.094(b), § its Texans for Elec. Code Ann. plain language 253.094(a) only prohibits "political contributions" as that term is defined in the Texas Election Code. 95 § by from 251.001(5) (West 2012), § See Texas Elec. Code Ann. 253.094(a) (West Supp. 2014). As explained in Texans for Free Enterprise, however, some "political contributions" under Texas law -- those made to "direct expenditure only are committees" expenditures" under jurisprudence. the the equivalent Supreme Court's See Texans for Free Enterprise, of "independent campaign finance 732 F.3d at 536, 538. 1. Plaintiffs' Standing to Challenge § 253.094(a) Section 253.094(a) was recently declared unconstitutional by the Fifth Circuit to the extent that it barred political 94rd. at 36. 95For purposes of this case, § 253.094(a) prohibits a "direct or indirect transfer of money, goods, services, or any other thing of value," to a "political committee that is offered or given with the intent that it be used. . on a measure." Tex. Elec. Code Ann. §§ 251.001 (2), (3), (5) (West 2012). As discussed above, the parties acknowledge that Plaintiffs' proposed activity will render them a "political committee" under Texas law. -43- contributions to a "direct campaign expenditure only committee. Texans for Free Enterprise, injunction, enforcing discussed in § 253.094 (a) 732 F.3d at 537-38. IV.A above, § "by directly 1I The resulting enjoins Defendants from or indirectly prohibiting contributions to a direct campaign expenditure-only committee for the purpose of making direct campaign expenditures. ,,96 Defendants argue that because Plaintiffs "disclaim any intention to coordinate their activities with any person who is a candidate for, or who plans to be a candidate for, the offices for which they plan committee may to seek register as committee,,97 and that a a recall," "direct their proposed campaign expenditure the Texans for Free Enterprise would bar Defendants from enforcing § political only Injunction 253.094(a) against Plaintiffs to prevent political contributions to that committee. 98 Defendants therefore argue that in light of the Texans for Free Enterprise Injunction Plaintiffs have failed to establish a credible threat of prosecution by the Texas Ethics Commission. 99 Moreover, as Defendants point out, the Texas Ethics Commission has promulgated rules to conform with the holding in Texans for 96Texans for Free Enterprise Injunction, attached as Exhibit 1 to Defendants' Motion for Summary Judgment, Docket Entry No. 52-1, p. 5. 97Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 22. 98Id. at 22-23. 99Id. at 26-27. -44- Free Enterprise. 100 Section 22.5(c) Code states specifically that of the Texas Administrative corporation's " [a] or labor organization's making of a political contribution to a political committee that has filed an expenditure only committee] § affidavit [as a direct campaign does not constitute a violation of 253.094(a) of the Election Code." 1 Tex. Admin. Code § 22.5(c). Thus, if Plaintiffs' proposed political committee were to register as a direct campaign expenditure only committee, any contributions Plaintiffs made to that committee would not "constitute a violation of § 253.094 (a) . "101 Id. 2. Plaintiffs have not met their burden to establish standing to challenge § 253.094(a). As explained in §§ IV.A.l(c), IV.A.2, and IV.B.2 above, Plaintiffs have not alleged that they intend to file the affidavit necessary to register their proposed political "direct campaign expenditure only committee." committee as a Although Plaintiffs testified to their willingness to file "something with the Ethics Commission" stating candidate, 102 they that also they would testified not that coordinate they are with opposed any to registering their political committee in any form and have made no lOOSee Defendants' Reply, Docket Entry No. 10, pp. 8-11. 101S ee id.; see also Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 26-27; Defendants' Response, Docket Entry No. 58, pp. 7-10. 102See Transcript of Inj unction Hearing, Docket Entry No. 26, pp. 86, 102-03, 122. -45- affirmative representation that they will file the required affidavit or otherwise organize as a direct campaign expenditure only committee .103 Plaintiffs' The court therefore cannot determine whether proposed contribution to a conduct would a constitute political "direct campaign expenditure only committee" subject to the exacting scrutiny applicable to limitations on core First Amendment rights of political expression; a political contribution to a political committee subject to a lesser level of scrutiny and perhaps lawfully proscribed in furtherance of Texas's interest in preventing circumvention contributions to candidates; of its or even whether, ban on corporate In light perceived burden of complying with Texas's political of the committee disclosure requirements, Plaintiffs will actually engage in conduct rendering them a political committee. would be contingent on how Plaintiffs Any rul ing by the court choose to organize and register their proposed political committee, if they choose to do so at all. § 253.094(a) committee,l04 For the court to opine on the constitutionality of should Plaintiffs choose to form a general purpose special purpose commi t t ee , 105 direct campaign expenditure only committee,l06 "committee for supporting or opposing 103Transcript of pp. 75, 103, 124-25. Injunction Hearing, Docket Entry l04Tex. Elec. Code Ann. § 251. 001 (14) (West 2012) 105Tex. Elec. Code Ann. § 251.001(13) (West 2012) 106 1 Tex. Admin. Code Ann. § 22.5. -46- No 26, measures excl usi vely, /1107 or some combination thereof, when Plaintiffs have not indicated that they would, suggest that they would not, 108 constitute an advisory opinion. make a choice especially and in fact at all, would See Alabama State Fed'n of Labor, Local Union No. 103, United Bhd. of Carpenters & Joiners of Am. v. McAdory, 65 S. Ct. 1384, 1389-90 (1945) power to give advisory opinions. practice not to decide ("This Court is without It has long been its considered abstract, hypothetical or contingent questions, or to decide any constitutional question in advance of the necessity for its decision, or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, or to decide any constitutional question except with reference to the particular facts to which it is to be applied./1 (citations omitted)). Accordingly, the court concludes that Plaintiffs have failed to establish a justiciable controversy with regard to their challenges to D. Plaintiffs' 253.031(b) Plaintiffs Challenges allege that committee status" on them, to § § §§ 253.094(a). 251.001(12), 25l.001(12) 252.001, "impose[s] and political requiring them to appoint a campaign treasurer and triggering Texas's political committee disclosure requirements, which, Plaintiffs 107S ee Tex. Elec. Code Ann. § argue, "unconstitutionally 253.096 (West 2012). 108S ee Transcript of Inj unct ion Hearing, Docket Entry No. 26, pp. 75, 86-88, 93, 103, 115, 124-25. -47- infringes free speech. Hlo9 committee" purpose Section 251.001(12) defines "political to mean "a group of persons that has as a principal accepting expenditures. H political contributions Tex. Elec. Code Ann. § or making 251.001 (12) political (West 2012) . Plaintiffs allege that if they "work together for the primary purpose of accepting political contributions and making political expendi tures [,] they are a pol it ical committee under Texas Law. ,,110 See also Catholic Leadership, 2014 WL 3930139, at n.27 ("Texas does not make the political committee label voluntary -- groups wishing to engage in collective political burdens imposed by Texas law. H) speech must comply with the "Thus the Plaintiffs, who only want to speak out in support of even one measure, would be forced to incur the burdens of becoming a political committee under Texas law. III II Since Plaintiffs have refrained from engaging in their intended conduct because of the perceived burdens of being deemed a political committee under Texas law, the court concludes that Plaintiffs have established standing to challenge 252.001, and 253.031(b). decision to 251.001(12), See, e.g., Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990, 1001 (9th Cir. 2010) Life's §§ refrain from implementing ("Because Human its educational I09S econd Amended Complaint, Docket Entry No. 36, p. 30 10.45; see also id. ~ 10.46 ("Imposing political committee status on groups wanting to make political expenditures and/or accept political contributions for a measure unconstitutionally burdens speech. ") . ~ lloId. at 30 lllId. ~ ~ 10.42. 10.43. -48- program was based on a reasonable fear of enforcement of the Disclosure Law, we conclude that Human Life has established a case or controversy."). Plaintiffs contend that "[p]olitical committee status and its attendant burdens -- which follow from the [treasurer] appointment requirement (I) contained facially with in respect are 252.001 § to political unconstitutional committees active on (ii) as applied to groups with minimal financial measures and . acti vi ty such as Plaintiffs." 112 1. The Level of Scrutiny to be Applied Because § provisions of applied to § 251.001 the simply defines Election Code, the the terms used in other level of scrutiny to be 251.001 depends upon the level of scrutiny to be applied to those other challenged statutes. See Vermont Right to Life Comm., 137 Inc. v. Addressing a Sorrell, challenge to 758 F.3d 118, Vermont's definition (2d Cir. of 2014). "political committee," the Second Circuit explained in Vermont Right to Life: A defined term such as "political committee" is simply a useful drafting tool. The definition sets out the domain of a series of separate statutory provisions. For example, the statute currently defines "pol i tical committee" in section 2901 (13), then subjects every "political committee" to disclosure requirements in section 2964. The statute could be rewritten to dispense with the defined term "political committee" by making the disclosure requirements a standalone provision. The same process could be followed with every other provision, including the contribution limitations in section 2941(a) (4). This process would not alter the substance 1121d. ~ 10.44. -49- of the statute and the resulting statute likely would be unwieldYi it would be more difficult to apply and review. But it would lack a "political committee definition that could be sUbjected to the type of challenge envisioned by [the plaintiffs] . I ll It is the challenged regulation not the [political committee] definition l therefore that determines what level of scrutiny should apply. l I rd. Here, the challenge are Code. 113 conduct-regulating §§ 252.001 provisions and 253.031 (b) of that Plaintiffs the Texas Election Section 252.001 states that "[e]ach candidate and each political committee shall appoint a campaign treasurer as provided by [Chapter 252 of the Texas Election Code].11 § 252.001 (West 2012). committee political contributions Tex. Elec. Code Ann. Section 253.031 (b) may totaling more not provides knowingly than $500 or accept make or that "[a] political authorize political expenditures totaling more than $500 at a time when a campaign treasurer appointment for the committee is not in effect. Tex. Elec. Code Ann. § 253.031(b) serves as committee the cornerstone campaign-finance of (West 2012). Texas/s disclosure II "[T]he treasurer entire general-purpose regime. Catholic II Leadershipl 2014 WL 3930139, at *24. Plaintiffs argue that the treasurer-appointment requirements of §§ 252.001 and 253.031 are a prior restraint on speech.1l4 argument was considered 113Id. at 29 ~ ~~ and rejected by the This Fifth Circuit in 10.37-10.38 i 36-37. 114Second Amended Complaint 10.47. I Docket Entry No. -50- 36 1 pp. 30-31 Catholic Leadership. Id. at *21-23. Instead, the Fifth Circuit analyzed "the treasurer-appointment requirement" of § 253.031(b) "as a disclosure and/or organizational requirement." Id. at *22. The Fifth Circuit provided two justifications for its conclusion: First, and foremost, the treasurer-appointment requirement is a disclosure requirement: all that the provision requires is that a general-purpose committee take simple steps to formalize its organizational structure and divulge additional information to the government. And . . . general-purpose committees remain fully in control of their compliance with the treasurer-appointment requirement. No external factor limits the Committee's ability to speak Accordingly, a lower level of scrutiny is appropriate because any limit on speech created by the requirement arises solely from the committee's own choice to not provide information to the government. Second, to the extent we still have concerns regarding prior restraints in the campaign-finance context, those concerns can be addressed through the existing constitutional test for disclosure requirements. Id. at *22-23 (footnote omitted) (citations omitted) i see also Vermont Right to Life, 758 F.3d at 137 (" [The plaintiff] highlights the following obligations that apply to an organization once it is defined as a political committee: registration, recordkeeping necessary for reporting, and reporting requirements. It asserts these are the very burdens that are onerous as a matter of law. These requirements amount to the establishment of a disclosure regime. II (citations omitted) (internal quotation marks omitted)). "Disclosure and organizational requirements receive a further lessened level of scrutiny [than either expenditure limitations or contribution limitations]." Catholic Leadership, 2014 WL 3930139, -51- at *11. "To defend disclosure and organizational requirements, the government must show a 'sufficiently important interest that bears a substantial relation' Id. (quoting SpeechNow.org v. 2010) FEC, governmental to the requirement." 599 F.3d 686, 696 (D.C. Cir. (en banc)) . 2. Sufficiently Important Governmental Interest The Fifth Circuit has recognized that "Texas has a sufficiently important interest to justify the constitutionality of the treasurer-appointment requirement," explaining that the public has an interest in knowing who is speaking about a candidate and who is funding that speech, no matter whether the contributions were made toward administrative expenses or independent expenditures. Further, requiring disclosure of such information deters and helps expose violations of other campaign finance restrictions such as those barring contributions from foreign corporations or individuals. These are sufficiently important governmental interests to justify requiring [the plaintiffs] to organize and report . as a political committee. Id. at *23 (quoting SpeechNow.org, 599 F.3d at 698). The Fifth Circuit also recognized Texas's "informational interest in ensuring the smooth functioning of its campaign finance disclosure scheme." Id. at *24. In holding that the treasurer-appointment requirement was properly tailored, the Fifth Circuit observed that "any burden created by the treasurer-appointment requirement filling out and putting a essentially three-page form that asks for basic information in the mail - - appears to be exceedingly minimal." at *23 (footnote omitted) . -52- Id. Plaintiffs involved in allege that measures-only Plaintiffs argue, recall are no candidates Accordingly, elections.,,1l5 "imposing political committee status on groups wanting to make political satisfy "[t] here 'exacting' expenditures scrutiny as it does for a measure does not have a not substantial relation to a 'sufficiently important' governmental interest. ,,116 Defendants argue that "[b] y its very nature, advocating for an elected official to be recalled entails advocating in opposition of an identified person, for the purpose of holding an election to recall that person from his or her position" and that "[t]his type of political committee advocacy is precisely the type of activity that courts have found may be regulated through political committee disclosure requirements. ,,117 The court is not convinced that the State's informational interest in disclosure is limited to advocacy for or against an identified candidate. See, e.g., Buckley v. Am. Constitutional Law Found., Inc., 119 S. Ct. at 647 ("[T]he State and supporting amici stress the importance of disclosure as a control or check on domination of the initiative process by affluent special interest groups. Disclosure of the names of initiative sponsors, and of the amounts they have spent gathering support for their initiatives, 115Id. at 31 ~ 10.51. 116Id. ~ 10.53. 117Defendants' No. 52, Motion for Summary p. 29. -53- Judgment, Docket Entry responds to that substantial state interest." (internal quotation marks omitted)); F.3d 800, 806 (9th Cir. 2012) (citations omitted) Family PAC v. McKenna, 685 ("We have repeatedly recognized an important (and even compelling) informational interest in requiring ballot measure committees to disclose information about contributions. ") ; Human Life of Washington Inc., 624 F.3d at 1005 (upholding disclosure requirements in the context of ballot initiatives, noting that the considerations justifying disclosure requirements in candidate elections "'apply just as forcefully, if not more so, for voter-decided California Pro-Life Council, ballot measures' II (quoting Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir. 2003))). Moreover, Texas has a sufficient "informational interest in ensuring the smooth functioning of its campaign finance disclosure scheme. Catholic Leadership, II 2014 WL 3930139, at *24; see also Doe v. Reed, 130 S. Ct. 2811, 2819-20 (2010) ("The State's interest in preserving the integrity of the electoral process is undoubtedly important. States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally. [T]he State's interest in preserving electoral integrity extends more generally to promoting transparency and accountability in the electoral process, which the State argues is essential to the proper functioning of a democracy.H); Buckley v. Valeo ("Buckley"), 96 S. Ct. 612, -54- 658 (1976) (" [N]ot least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect . . "). violations of the contribution limitations the court concludes that Texas has a Accordingly, sufficiently important governmental interest for its treasurer-appointment and concomitant disclosure requirements. 3. Substantial Relation to the Government's Interest In determining substantial whether relation to a a disclosure sufficiently requirement important bears a governmental interest, the court looks to the burden imposed by the requirement. See Buckley, 96 S. Ct. at 658 (" [D] isclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufficient to justify the requirements [the court] must look to the extent of the burden that they place on individual rights."). "This inquiry is 'one of degree, not kind, for it is well established that, in the ordinary case, a state informational interest is sufficient to justify the mandatory context No. reporting of ballot expenditures Helena, and initiatives.'" 3:11-CV-138-SA-SAA, Sept. 30, 2013) "The of 2013 WL contributions Justice 5462572, at the Hosemann, v. *9 in (N.D. Miss. (quoting Canyon Ferry Road Baptist Church of East Inc. v. Unsworth, informational 556 F.3d 1021, interest contributions decrease, weakens and at 1034 as (9th Cir. the size 2009)). of the some point contributions are so -55- small that disclosure may provide voters with little relevant information. When that point is reached, a court presumably should ask the whether burdens imposed by informational interests served by it." (footnotes omitted) i disclosure outweigh the Family PAC, 685 F.3d at 809 see also Justice, 2013 WL 5462572, at *17 ("As held by numerous circuits, in the context of a ballot-initiative, the State's interest That interest, is in turn, limited to the informational interest. is proportionately related to the amount spent or raised by Plaintiffs in furtherance of their speech.") . Plaintiffs presented evidence to support their contention that the disclosure treasurers are requirements onerous imposed on and burdensome. 118 political committee Plaintiffs cite the various reports that a political committee treasurer is required to file. 119 of Plaintiffs also produced a witness to testify to the costs complying requirements Plaintiffs 1 with the various imposed on political federal and state committees .120 reporting The thrust of argument appears to be that Texas/s $500 threshold for appointing a treasurer and complying with the various disclosure requirements imposed on political committees is simply too low "as ~ 118Second 10.44. 119Id. § 254.031 Amended Complaint 1 Docket Entry No. 36 1 p. 30 at 18-22 ~~ 6.15-6.21 (citing Tex. Elec. Code Ann. (West Supp. 2014) §§ 254.121 254.124 (West 2012» 1 1 12°Transcript of Inj unction Hearing, pp. 38-64 (testimony of Chris Gober) -56- Docket Entry No. 26, applied to groups with minimal financial activity such as Plaintiffs. ,,121 Defendants committee contend that Plaintiffs' treasurer-appointment "claim that requirement is Texas' [s] burdensome is meritless and belied by a review of what is required to actually 'register. ,/1122 According to Defendants, This registration consists of appointing a person (who does not have to be a lawyer, accountant or any other professional) as a treasurer of the committee; this requirement (and any attendant disclosure requirements) is triggered only if the committee expends or contributes more than $500. Depending on whether a committee is required to register as a specific- or general-purpose committee, this registration process requires completion of a simple 2 or 3 page form available on [the Texas Ethics Commission]' s website. [The Texas Ethics Commission] charges no fee to file the treasurer appointment and any person, regardless of whether they are a lawyer or lay person, can complete and submit the form.123 Defendants argue "regarding what that he the testimony personally charges committees as a 'set up' charge of Plaintiffs' sophisticated witness political . is no evidence of a burden caused by the Texas registration requirement. 11124 Defendants point 121Second Amended Complaint, Docket Entry No. 36, p. 30 10.44. Plaintiffs suggest that the $500 threshold is especially low when most of a committee's political contributions will be in the form of in-kind contributions. See Plaintiffs' Reply, Docket Entry No. 61, p. 19. ~ 122Defendants' No. 52, p. 31. 123rd. Motion for Summary at 31-32. 124Id. at 32 n.20. -57- Judgment, Docket Entry out that much of the testimony "concerned costs and burdens associated with the federal tax consequences associated with acting as a political committee. ,,125 Drawing all reasonable inferences in favor of Plaintiffs, the court is not persuaded that the requirements are so burdensome as First, to fail constitutional scrutiny. "disclosure thresholds, like contribution limits, are inherently inexact; courts therefore owe substantial deference to legislative judgments fixing these amounts." at 1251 Family PAC, 685 F.3d at 811; see also Worley, 717 F.3d ("Supreme Court and Circuit precedent has 'consistently upheld organizational and reporting requirements against facial challenges,' in part because crafting such disclosure schemes is better left to the legislature." (quoting SpeechNow.org, 599 F.3d at 696)). "In Buckley, the Supreme Court upheld a disclosure threshold after observing that it was not Vermont Right to Life, S. Ct. at 665). 'wholly without 758 F.3d at 138-39 rationality. '" (quoting Buckley, 96 The challenged statutory provisions in Buckley required that records "be kept by political committees of the names and addresses of those who make contributions in excess of $10" and that "[i]f a person's contributions to a committee or candidate aggregate more than $100, his name and address, occupation and principal place of business, as well as his [were] to be included 125Id.; see also Transcript of Injunction Hearing, Docket Entry No. 26, pp. 38-64 (testimony of Chris Gober) . -58- in reports filed by committees and candidates with the Commission and made available for public (citations omitted). 96 inspection." S. Ct. at 665 The appellants in Buckley contended "that the monetary thresholds in the record-keeping and reporting provisions a lack [ed] substantial nexus with the claimed governmental interests, for the amounts involved [were] too low even to attract the attention influence." of Id. the candidate, much less have a corrupting The Court upheld the challenged provisions: The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910. But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality. Id.; see also Nat'l Org. for Marriage v. McKeel (1st Cir. 2011) ("Following BuckleYI we have 649 F.3d 34 granted 1 60 judicial deference to plausible legislative judgments as to the appropriate location of a reporting threshold, and have upheld such legislative determinations unless they are wholly (quoting Vote Choice, Inc. v. DiStefano 1993)) (internal quotation marks -59- l without 4 F.3d 26 omitted)); rationality." 1 33 Canyon (1st Cir. Ferry Rd. Baptist Church of E. Helena, "wholly without rationality" 556 F. 3d at 1031-34 (applying the standard of deference to determine whether a threshold reporting requirement was substantially related to the State's informational interest in "providing its citizenry with information about the constituencies supporting and opposing ballot issues"). In light of the considerable deference afforded to legislative judgments in setting disclosure thresholds, and the fact that several courts have upheld similar thresholds, the court does not conclude that Texas's $500 treasurer-appointment and political committee disclosure requirements are wholly without rationality. Cf. Buckley, 96 S. Ct. at 665-66i Vermont Right to Life,758 F.3d at 137-39 i Worley, 717 F. 3d at 1249-53 i 808-11i Nat'l Org. for Marriage, Family PAC, 685 F. 3d at 649 F.3d at 59-61. Moreover, even without applying the wholly without rationality standard of deference, Plaintiffs' as-applied challenge to Texas's treasurer-appointment and political committee disclosure requirement fails. Cf. Worley, 717 F. 3d at 1240, 1249-53 (holding that Florida's political committee disclosure requirements applicable to political committees consisting of "two or more individuals who accept contributions of -- or spend -- more than $500 in a year to expressly advocate the election or defeat of a candidate or the passage or defeat of a ballot issue" survived exacting scrutiny, but "nevertheless find [ing] disclosure thresholds the discussion in [under the wholly without -60- -------------------,-----",. ,.----, [McKee] ------------ assessing rationality standard] to be instructive" (analyzing Nat'l Org. for Marriage, 649 F.3d at 60)); Justice, 2013 WL 5462572, at *8-13 (suggesting that exacting scrutiny demands more than the deferential wholly without rationality standard) . The Fifth Circuit has observed that "Texas has excerpted small-scale general-purpose committee political activity from its registration requirements." at *24. groups Here, with Catholic Leadership, 2014 WL 3930139, although presented as a challenge "as applied to minimal financial activity," Plaintiffs have not limited the scope of their proposed activities and instead have consistently alleged that they intend to engage in additional recall elections 126 as well as "other measures-only efforts." 127 Worley, they 717 F. 3d at 1252 seek Plaintiffs to raise ("Here, more specifically money allege cf. Challengers openly acknowledge in that the future. ") . "they plan to Moreover, engage in 126Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53, p. 11 ("Plaintiffs intend to engage in recalls in the future as well, as these issues are sure to arise in additional cities and even with respect to new officials who may take office in San Antonio later."); Joint Heirs' Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-19, p. Ii Houston's First Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-20, p. Ii Faith Outreach International's Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-21, p. 1. 127Second Amended Complaint, Docket Entry No. 36, pp. 11-16 5.1-5.3; see also Plaintiffs' First Amended Reply, Docket Entry No. 9-1, p. 15 ("An injunction is also needed to protect Plaintiffs who seek to circulate recall petitions in the future and engage in measures-only issues (that are not coordinated with a candidate or political committee that coordinates with candidates) .") . ~~ -61- acti vi ty implicating a value easily in excess of" $500. 128 Plaintiffs Reply, connection with $1,148.48. 129 F.3d at estimate the San that their Antonio proposed recall In their activity efforts may in exceed Cf. Canyon Ferry Rd. Baptist Church of E. Helena, 556 1029 (holding Montana's '" zero dollar' threshold for disclosure" unconstitutional under the wholly without rationality standard as applied to an incorporated church's "de minimis in-kind expenditures," which consisted merely of allowing a church member to photocopy a few dozen petitions on the Church's copy machine using her own paper, placing petitions in the Church's foyer, and a pastor's "exhortation to sign the petition during a regularly scheduled sermon") . Because Plaintiffs have expressed an intention to engage in recurring, and perhaps even ongoing, political activity that they acknowledge will contributions, challenge rationality the fails entail court even standard of substantial concludes without that applying deference to in-kind political Plaintiffs' as-applied the Texas's wholly $500 without disclosure 128Plaintiffs' Reply, Docket Entry No. 61, p. 19. 129See id. ("Estimating a cost of ten cents per page, simply printing 5,000 pages for recall petitions, flyers, schedules, etc., will cost $500.") i id. n.8 ("A single vehicle traveling 386 miles (round trip) from Houston's First Church of God to San Antonio City Hall as part of a coordinated effort with Plaintiffs would result in a $216.16 in-kind contribution to Plaintiffs' de facto committee, based on the IRS's standard mileage reimbursement rate for 2014 (56 cents per mile). The use of three vehicles would amount to a $648.48 contribution." (citation omitted)). -62- Considering the relative burden of compliance, threshold. court further political concludes committee that Texas's disclosure treasurer-appointment requirements related to Texas's informational interests. to § 252.001 §§ 253.031 (b) , and and are the and substantially Plaintiffs' challenges their challenge to 251.001(12) 's definition of "political committee" based on the alleged burdens imposed by 252.001 and 253.031(b), §§ therefore fail as a matter of law. E. Plaintiffs' Challenge to Section § 251.001(2) 251.001(2) defines "contribution" to mean a direct or indirect transfer of money, goods, services, or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a transfer. The term includes a loan or extension of credit, other than those expressly excluded by this subdivision, and a guarantee of a loan or extension of credit, including a loan described by this subdivision. The term does not include: (A) a loan made in the due course of business by a corporation that is legally engaged in the business of lending money and that has conducted the business continuously for more than one year before the loan is made; or (B) an expenditure required to be reported under Section 305.006(b), Government Code. Tex. Elec. already § Code Ann. concluded 253.031 (b), § that which 251.001(2) (West 2012). Plaintiffs have incorporates § standing 251.001 (2) 's The court has to challenge "contribution" definition to trigger Texas's treasurer-appointment requirement. Because § 253.031(b) requires a political committee to appoint a -63- treasurer before it "accept[s] political contributions totaling more than $500,11 and the term "political contribution incorporates ll § 251.001(2) 's definition of "contribution,1I the court concludes Plaintiffs that have standing established to challenge §251.001(2). Plaintiffs allege that § 251.001 (2) vague and overbroad. 11130 "In the "is unconstitutionally First Amendment context, the doctrines of vagueness and overbreadth overlap; both are premised on concerns about chilling constitutionally protected speech. Wisconsin Right To Life, Inc. v. Barland, 751 F.3d 804, 835 II (7th Cir. 2014); see also Kolender v. Lawson, 103 S. Ct. 1855, 1859 n.8 (1983) ("[W]e have traditionally viewed vagueness and overbreadth as logically related and similar doctrines. II) ; Ctr. for Individual 13°Second Amended Complaint, Docket Entry No. 36, p. 37; see also id. at 9 ~~ 4.3-4.4, 32-33 ~~ 10.55-10.65. Plaintiffs also ask the court to "enjoin[] the Defendants from enforcing § 251.001 (6) "in such a way as to violate Plaintiffs' constitutional right to circulate or submit recall petitions, encourage others to do the same, and from otherwise making a political contribution concerning a recall effort or measures-only effort.1I rd. at 36; see also id. at 18 ~ 6.12, 29 ~ 10.39. Section 251.001(6) defines "expenditure as "a payment of money or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a payment. II Tex. Elec. Code Ann. § 251.001 (West 2012). Plaintiffs make no argument, however, that § 251.001(6)'s definition of "expenditure is vague, overbroad, or operates to prohibit any of their proposed political activity. Plaintiffs' argument regarding § 251.001(6) appears to be focused on the perceived burdens of complying with Texas's treasurer-appointment and political committee disclosure requirements, which are addressed in § IV.D above. See Second Amended Complaint, Docket Entry No. 36, pp. 29-31 ~~ 10.35-10.54; Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53, pp. 40-43; Plaintiffs' Reply, Docket Entry No. 61, pp. 19-23. ll ll ll -64- Freedom v. Madigan, 697 F.3d 464, 479-80 (7th Cir. 2012) ("In the First Amendment context, vagueness and overbreadth are two sides of the same coin, and the two sorts of challenges are often conceived of as 'alternative and often overlapping' theories for relief on the same claim." Cir. 2005)). (quoting Jordan v. Pugh, 425 F.3d 820, 827 (10th Normally, [i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 102 S. Ct. 1186, 1191 (1982); see also United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009) core free-speech zone "But campaign-finance laws operate in a and Wisconsin Right To Life, directly target protected 751 F.3d at 836. speech." "In this context, we don't need to ask whether the challenged law reaches a substantial amount of protected speech; by definition, it does, political Accordingly, speech is overbreadth in the protected." campaign-finance context is a because all alleged "more-focused inquiry," because the" 'government may regulate in th [is] area only -65- .. ------------~~ ---~--~~~~~-~- ------....-----_. with narrow specificity. 'II Id. (quoting Buckley, 96 S. Ct. at 645 n. 48) . "The first step ln overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." United States v. Williams, 128 S. Ct. 1830, 1838 (2008). by Defendants, the definition of "contribution" in not prohibit, Like § As noted 251.001 does limit, or regulate Plaintiffs' proposed conduct. 131 the definition of "political committee," it "is simply a 131Defendants argue that "it is entirely unclear what injury Plaintiffs even seek to redress through their attempt to enjoin the statutory definition of 'contribution,' such that it is unclear whether Plaintiffs even have standing to make such a claim." Defendants' Response, Docket Entry No. 58, p. 16 n.8. According to Defendants, It should be readily apparent that a statutory definition does not and cannot, in and of itself, prohibit activity or cause any injury. Rather, it is only statutes that contain the term 'contribution' that could be seen as actually imposing any possible injury on Plaintiffs. As such, it is unclear what, if anything, would be accomplished or redressed by simply enjoining the statutory definition challenged by Plaintiffs. For example, if the statutory definition was declared invalid, rules of construction would require that statutes containing the term 'contribution' would be construed based on the common usage of the term. Given this, it is unclear how a declaration that a statutory definition is invalid would redress any of Plaintiffs' claimed injuries. Id. (citations omitted) (citing Tex. Gov't Code Ann. § 311.011(a) (West 2013». Nevertheless, since Plaintiffs challenge the definition of "contribution" as it is utilized in particular conduct-regulating provisions of the Texas Election Code, the court will address the merits of Plaintiffs' arguments in the context of those provisions. -66- ------------------ ------------------------ useful drafting tool" that "sets out the domain of a series of separate statutory provisions." 137. The court will statutes § challenged Vermont Right to Life, 758 F. 3d at therefore by look to the conduct-regulating Plaintiffs to determine the scope of 251.001(2)'s definition of the term "contribution." Of the conduct-regulating statutes challenged by Plaintiffs that utilize § 251.001(2)'s "contribution" definition, § 253.094 and § 253.031 regulate "political contributions," while § 253.096 regulates "campaign contributions."132 In each instance, the term "contribution" is narrowed by a consideration of the nature of the recipient and the intent of the contributor. See Tex. Elec. Code Ann. see also Hoyt, 878 contributions and F. §§ Supp. 251.001(3), 2d at 735 251.001(5) n.16 (West 2012); ("[B]oth campaign campaign expenditures are characterized by a payment or transfer of money or other thing of value with campaign contributions being distinguished by (1) political committee), the nature of the recipient and (2) (a candidate or the contributor's intent that the recipient of the contribution use it in connection with an election (as opposed election')" to its (quoting simply being made Ex parte Ellis, 'in connection with 279 S.W.3d 1, 8 an (Tex. App.-Austin 2008), aff'd, 309 S.W.3d 71 (Tex. Crim. App. 2010»). 132See Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 37 ("Plaintiffs' vagueness challenge to the § 251.001(2) definition of 'contribution' is unfounded because it is based on Plaintiffs ignoring the fact that the statu [t] es that serve to regulate conduct, such as § 253.094, do not prohibit simply 'contributions,' but rather use the term 'political contributions,' which is given a specific definition in the Election Code.") . -67- Thus, although Plaintiffs allege that the conduct-regulating statutes that they challenge "reach[] all expressive activity of Plaintiffs and parties not before the Court that encourages people to sign or otherwise support recall petitions,"133 in fact, these statutes reach only those activities that (1) constitute a transfer (2) of a thing of value (3) to a candidate or political committee (4) given with the requisite intent that the recipient use it in recall election. 134 connection with a §§ 251.001(3), (West Supp. (5), 2014). 253.031(b), See Tex. 253.096 Elec. (West 2012), Code Ann. § 253.094 Courts have found that knowledge or intent requirements reduce the potential for vagueness. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2720 (2010) ("[T]he knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect containing a similar requirement.") (Tex. Crim. require App. that a 2010) to other statutes Ex parte Ellis, 309 S.W.3d 71 i ("The Election Code provisions at issue contributor have a certain intent before the contribution is deemed illegal, and it requires that a recipient know that a contribution is in fact illegal, which entails knowing ~ 133Second 10.65. Amended Complaint, Docket Entry No. 36, p. 33 134Defendants argue that Plaintiffs' claim "that the term ['contribution'] operates to prohibit 'all expressive activity of Plaintiffs,' is simply incorrect because a church's independent use of its own funds or resources in support of election activity (including recalls) would constitute a 'direct campaign expenditure' that is not barred by § 253.094(b)." Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 30. -68- -.---- - - - - - - - - - - - ---------------------------------~--.- .. - .. -.--... the intent of the contributor, before imposing criminal liability. The State has the burden to prove the applicable culpable mental states, and if it cannot, then a defendant charged under these provisions is entitled to an acquittal."). The thrust of Plaintiffs' challenge to 251.001(2) is their § argument that the statute is overbroad because the phrase "indirect transfer any of other thing 0 f value is II vague, and Plaintiffs cannot determine whether their proposed conduct would constitute a prohibited political or campaign contribution. l35 "Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment." S. Ct. at provide Williams, 128 "The Due Process Clause requires 1845. sufficient guidance such that a man that a of law ordinary intelligence would understand what conduct is being prohibited." Munn v. City of WL 4066202, at *2 S. Ct. at 1845) focus upon the Ocean Springs, Miss., (5th Cir. Aug. 18, 2014) No. 13-60806, 2014 (citing Williams, 128 However, the court's vagueness analysis "cannot marginal cases in which an ordinarily plain statutory command can nonetheless yield some mote of uncertainty." Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 580 (5th Cir. 2012). "[S]peculation about possible vagueness in hypothetical situations not before the [c]ourt will not support a facial attack on a statute when it is surely valid in the vast ~~ l35S ee Second Amended Complaint, Docket Entry No. 36, pp. 32-33 10.55-10.65. -69- majority of its intended applications." Colorado, 120 S. Ct. 2480, 2498 (2000) Id. (quoting Hill v. (internal quotation marks omitted) ) Plaintiffs argue , lrect trans f er 'In d' 0 f that "[n]o money ' l' S one can or how far be l' t certain what ml' ght reach. an 11136 Pointing to the Texas court of appeals' opinion in Cook, Plaintiffs allege that "[t]he phrase [indirect transfer of money] has been held to include postings of speech on corporate websites, even when nothing of value was transferred from the corporation to a recall committee. 137 Plaintiffs base their characterization of the Cook court's holding on the following language in its opinion: The Election Code does not define goods, services, or "thing of value. It is clear that [Word of Life Church ("WOL Church as a corporation, through the use of its website, promoted the circulation of recall petitions, created a portal whereby volunteers could register through WOL Church to circulate petitions, provided the 1I ll 136Id. at 32 ~ )], 10.61. 137Second Amended Complaint, Docket Entry No. 36, p. 32 10.62; see also id. ~ 10.60 ("By defining 'contribution' as including an 'indirect transfer of money,' Texas has created a situation in which the posting of speech in support of a recall petition on a corporation's website (i.e. an incorporated church's website) without doing it through a recall committee, has been found to be an impermissible 'contribution. '" (citing Cook, 385 S.W.3d at 602-03)). Although Plaintiffs use the phrase "indirect transfer of money" in their Second Amended Complaint, their allegations focus on the regulation of in-kind contributions. See 1 Tex. Admin. Code § 20.1(8) (defining in-kind contribution to mean "[a] contribution of goods, services, or any other thing of value, except money, and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make such a contribution. The term does not include a direct campaign expenditure. II) ¢ ~ -70- facility and personnel to assist in the signing and circulation of the recall petitions, and notified the public that recall petitions were available for signing at WOL Church. The evidence establishes that WOL Church made campaign contributions from its own property in connection with a measure-only recall election without properly making the contributions to a measure-only committee, Tex. Elec. Code Ann. § 253.096 (West 2010), and that WOL Church, a corporation, made a political contribution in connection with a recall election, including the circulation and submission of petitions to call an election, and failed to make such contribution to a political committee in violation of Sections 253.096 and 253.094(b) of the Election Code. Tex. Elec. Code Ann. §§ 253.096 (West 2010), 253.094 (b) (West Supp. 2011). Cook, 385 S.W.3d at 603.138 Plaintiffs appear to argue that the Cook court held "postings of speech on corporate websites" to be a 138It is unclear what the court in Cook meant when it stated that "WOL Church, a corporation, made a political contribution in connection with a recall election, including the circulation and submission of petitions to call an election, and failed to make such contribution to a political committee." 385 S.W.3d at 603. The opinion makes no mention of any candidates and, therefore, in order for any "contribution" to represent a "political contribution" it would have to have been made to a political committee. Plaintiffs appear to argue that the Cook court interpreted the language of § 253.094 (b) to define "the circulation and submission of a petition to call an election" as a "political contribution" regardless of the recipient or the intent of the contributor in making the contribution. Defendants contend that the cited language "constitutes a misinterpretation of § 253.094 (b) ." Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 18. "The misinterpretation of § 253.094 (b) in Cook can be contrasted with a more proper reading of the statutory scheme" in Hoyt, where the court held that § 253.094 (b) "only prohibits the circulation of recall petitions when such circulation constitutes a political contribution." Id. at 18-19 (quoting Hoyt, 878 F. Supp. 2d at 736). The court agrees with the Hoyt court's interpretation of § 253.094(b). Accordingly, in analyzing Plaintiffs' claims, the court construes the circulation and submission of recall petitions as a "political contribution" only when that activity constitutes a transfer of a thing of value to a political committee with the intent that it be used on a measure. See Tex. Elec. Code §§ 251.001 (3), (5) (West 2012), § 253.094 (b) (West Supp. 2014). -71- "contribution" despite the fact that they have no value, 139 and that it is impossible to determine when such a posting constitutes an "indirect transfer" to a political committee. 14o The documents produced by Plaintiffs reflect that the parties in Cook were specifically concerned with the value derived from use of the incorporated church's website. alleged that WOL Church, In Cook the mayor of El Paso a corporation, coordinated with other churches and an already existing political committee to promote a 139Second Amended Complaint, Docket Entry No. 36, p. 9 ~ 4.4 ("The phrase 'any other thing of value' is not defined in the statute but has been interpreted broadly in Cook v. Tom Brown Ministries to include speech occurring on an incorporated church's website or in its facilities if such speech promotes the circulation of a recall petition." (citation omitted»; id. at 17 ~ 6.3 ("The Texas court in Cook interpreted the term 'contribution,' under § 251.001(2), to include a Church expressively encouraging by speech on its website its parishioners to get involved in supporting recall petitions." (citation omitted». The "thing of value" language is also used in the definition of "contribution" under federal law. See 52 U.S.C. § 30101 (8) (A) (2014) (formerly codified at 2 U.S.C. § 431 (8) (A» ("The term 'contribution' includes. . any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office .") . Plaintiffs have not cited any vagueness or overbreadth challenges to this language as used in federal campaign finance law. 14°Second Amended Complaint, Docket Entry No. 36, p. 32 ~ 10.62; see also id. ~ 10.60. Because Plaintiffs' arguments are specifically addressed at § 251.001(2) 's definition of "contribution," rather than the more restrictive definitions of "political contribution" or "campaign contribution," it is unclear whether their critique of Cook's holding is premised on its statement that WOL Church "made a political contribution in connection with a recall election. . and failed to make such contribution to a political committee." -72- '--------------------------'--------------- recall election.141 The political committee was "El Pasoans for Traditional Family Values (EPTFV)11f "a specific-purpose political . created for the specific purpose of supporting a committee . measure described as 'traditional family values election on November 21 2010. Cookl 1f proposed measurel Ordinance Number 016456 to be decided by I 385 S.W.3d at 594. 1 passed. Id. The In July of 2011 the El Paso City Council effectively reversed Ordinance Number 017456 by amendment. Id. at 595. An effort to recall the mayor and certain members of the city council was organized in response. Thereafter l in a posting on WOL Church/s website l the pastor of WOL Church commi t tee I "stated that he and EPTFV I the specific-purpose had decided to join in the recall efforts ll although EPTFV had not filed any forms "to 'repurpose l the committee. for the purpose of supporting a measure to recall officeholders. 11142 Id. The WOL Church website was also used to "promote [] the 14ISee Plaintiffl s Third Amended Petition l Application for Temporary Restraining Order l Request for Temporary Injunction and Permanent Injunction l and for Declaratory Judgment ("Cook Complaintll) attached to Plaintiffs Motion for Leave to File Amended ReplYI Docket Entry No. 9-9 pp. 4-9 ~~ 5-12 pp. 12-13 ~~ 22-25; see also Cookl 385 S.W.3d at 602-03. I I 1 1 I42See also Brief of Appellant John F. Cookl attached to Plaintiffs l Motion for Leave to File Amended ReplYI Docket Entry No. 9-10 p. 19 ("In a June posting [to the incorporated church/s website] entitled l 'A Message from Pastor Tom Brown l l Pastor Brown called for a recall petition campaign and stated that' [i]t was not an easy decision to recall the mayor. I along with El Pasoans for Traditional Family Values (EPTFV) have decided to join in the recall of Mayor John Cookl and help in any way we can to recall Steve Ortega and Susie Byrd. III) 1 I I -73- circulation volunteers of recall could petitions, register petitions, provide[] through create [] WOL portal a Church to whereby circulate the facility and personnel to assist in the signing and circulation of the recall petitions, and notif[y] the public that recall petitions were available for signing at WOL Church. II Id. at 603. The mayor alleged that "WOL Church . furnished or transferred to the recall effort the value of updated websites, social media, furnished facilities and premises for circulation of petitions, meetings, copies of petitions, and other things of value,lI and contended that "[a]lthough the exact cost of such 'things of value' will be better known in discovery, they are not insubstantial. II143 Based on the limited facts before the court it appears that the parties and the court in Cook were concerned with the value that WOL Church provided through the use of its corporate website. The court cannot conclude, as Plaintiffs apparently contend, that "postings of speech on corporate websites thing of value. ll can never constitute a Nor can the court conclude that it is impossible to determine whether particular postings constitute an indirect transfer of a thing of value to a political committee. Indeed, 143Cook Complaint, attached to Plaintiffs' Motion for Leave to File Amended Reply, Docket Entry No. 9-9, p. 19 ~ 39; see also id. at 12 , 23 ("WOL Church/TBM provided the value of the website and its updates, the advertising, the value of the church premises and facilities for circulating petitions, meetings, and distribution of petitions, along with providing copies of petitions to recall all three objects of the effort.lI) -74- ----------------------------_ ----_ .. ... __ _. ... _ _----- - - - - - - .. when a corporation coordinates with a political committee, use of the corporation's website either by or for the committee means that the committee may forego the cost of establishing and maintaining its own website. 144 As noted by Defendants, absent coordination with a political committee, however, promotion of recall efforts on a website does not constitute a political contribution. 145 878 F. Supp. 2d at 735. church's See Hoyt, As the Supreme Court explained in the context of in-kind contributions to candidates, The expenditure of resources at the candidate's direction for a fundraising event at a volunteer's residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food. Similarly, travel undertaken as a volunteer at the 144Indeed, Plaintiffs appear to acknowledge that website design and maintenance often entails some cost. See Joint Heirs' Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53 -19, p. 4 (" [W] e also want to ask . . . interested individuals, whether members of the church or not, to pay for certain items in furtherance of recall efforts, which could range from things like, among other things, paper and toner (for printing petitions, research, communications, etc.) to payments for professional design of a dedicated recall advocacy website, payments for online announcements and information ¢ It); see also Houston's First Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-20, p. 4; Faith Outreach International's Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-21, p. 4. 145Defendants' No. 52, p. 18. Motion for Summary -75- Judgment, Docket Entry direction of the candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate's campaign or at the direction of the candidate or his staff forecloses an avenue of abuse without limiting actions voluntarily undertaken by citizens independently of a candidate's campaign. Buckley, 96 S. Ct. at 643. Similarly, the hallmark for determining whether a particular activity constitutes an indirect transfer to a political committee is coordination with that committee. Tex. Ethics Comm'n, Ethics Advisory Op. No. 503 (2012) Cf. ("Whether the expenditure constitutes a prohibited contribution depends on whether the expenditure is made with the prior consent or approval of the candidate. consent and An expenditure that is not made with the prior approval of the candidate contribution to the candidate.") is not a campaign Whether any particular posting constitutes a transfer of a thing of value to a political committee necessarily depends on the specific facts. Cf. id. ("It is a fact question whether any particular expenditure is made with the prior consent or approval of a candidate.") . Plaintiffs have not identified how their proposed political committee would be similar to or different purpose committee in Cook. from information on beyond "[p]romot[e] ~ intention specific- Nor have they identified the substance of their intended "posting of their the to [their] recall 146Second Amended Complaint, Docket Entry No. 5.1(d), p. 13 ~ 5.2(d), p. 14 ~ 5.3(d) -76- 36, websites" efforts. "146 pp. 11-12 Moreover, Plaintiffs activity has a acknowledge that readily determinable much of fair-market their proposed value .147 Cf. Catholic Leadership, 2014 WL 3930139, at *25 (noting in the context of "an in-kind donation of an email mailing list" mailing lists, that "email and the email addresses that comprise them, have actual monetary value and can be sold") ; Tex. Ethics Comm' n, Ethics Advisory Op. No. 262 (1995) petition constitutes a (discussing whether a signature on a thing of value and concluding that \\ [a] signature on a candidate's petition for a place on the ballot does not, by itself, constitute a transfer of a thing of value to the candidate and is not a political contribution" but that "any goods or services that are used or provided to obtain a signature on a candidate's petition, such as paper or personal services, would constitute a political contribution to the candidate") . For these reasons the court concludes that persons of ordinary intelligence can understand whether their activities constitute a "thing of value" in the particular circumstances and whether they might, through coordination with a political committee, indirect transfer with the specific intent that make an it be used in connection with a recall. Plaintiffs further attempt to illustrate § 251.001(2)'s alleged vagueness through a litany of hypothetical questions: 147Plaintiffs' Reply, Docket Entry No. 61, p. 19. -77- Does an "indirect transfer" include a speech given by a corporation's chief executive officer? Does it include a speech given by a corporation's employee? Does it reach a notice posted on a bulletin board in a corporation's break room that encourages employees to support or oppose a recall effort? Does it matter who authored the notice? Does it matter whether the corporation gave permission for the notice to be posted? No one knows, because while a "direct" transfer has an obvious meaning, the meaning of "indirect" transfer is unknown. 148 However, "[s]peculation about possible vagueness in hypothetical situations not before the [c]ourt will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications." (quoting Hill, omitted) ) 120 Texas Med. S. "Indeed, Ct. at 2498 hypothetical theoretical possibilities are Providers, (internal situations, 667 F.3d at 580 quotation speculation, 'of no due process unless they ripen into prosecution." marks and significance' Magee v. City of S. Padre Island, 463 F. App'x 377, 379-80 (5th Cir. 2012) (quoting Village of Hoffman Estates, 102 S. Ct. at 1196 n.21) . Because the conduct-regulating Plaintiffs only regulate (3) to candidates or (1) transfers political statutes (2) challenged by of a thing of value committees (4) made with the specific intent that the recipient use it in connection with a recall, and because a person of ordinary intelligence can generally ~ 148Second 10.62. Amended Complaint, Docket Entry -78- _._-------_._------------ No. 36, p. 32 understand whether they are making an indirect transfer to a political committee by examining whether they coordinated with that committee with regard to a particular activity, the court concludes that § 251.001(2) 's definition of "contribution" is neither vague nor overbroad. v. Conclusions and Order For the reasons explained in §§ IV.A, B, and C above, the court concludes that Plaintiffs have failed to meet their burden to standing establish to challenge §§ 253.094(b), 253.096, or Plaintiffs challenges to §§ 253.094(b), 253.096, and 253.094(a) are 253.094 (a) therefore DISMISSED for lack of subj ect matter jurisdiction. For the reasons explained in § IV.D and E above, the court concludes that Plaintiffs' challenges to §§ 251.001(12), 252.001, 253.031(b), 251.001(2), and 251.001(6) fail as a matter of law. Defendants are therefore entitled to summary judgment on those claims. Accordingly, Defendants' Motion for Summary Judgment (Docket Entry No. 52) Judgment is GRANTED IN PART, (Docket Entry No. 53) Plaintiffs' Motion for Summary is DENIED, -79- and Plaintiffs' Motion for Temporary Restraining Order and Expedited Preliminary Injunctive Relief (Docket Entry No.2) is DENIED.149 SIGNED at Houston, Texas, on this 9th day of September, 2014. UNITED STATES DISTRICT JUDGE 149The court has allowed the parties extraordinary leeway in submitting lengthy briefs and other written materials in connection with the pending motions and has twice allowed the Plaintiffs to amend their complaint. As the length of this Memorandum Opinion and Order indicates, the court has expended considerable time reading these papers and performing a significant amount of independent research to be as fully informed as possible when addressing the parties' arguments. While, because of the sheer volume of information presented, it is not impossible that some arguments were overlooked, the parties should assume that failure to expressly address a particular argument in this Memorandum Opinion and Order reflects the court's judgment that the argument lacked sufficient merit to warrant discussion. Accordingly, the court strongly discourages the parties from seeking reconsideration based on arguments they have previously raised or that they could have raised. In addition, Plaintiffs have already had multiple opportunities to amend their pleadings. -80-

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