Austin’s Campaign Contribution Restrictions a No-Go

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By Kimberly Strawbridge Robinson

Two decades-old campaign contribution restrictions overwhelmingly approved by Austin voters were struck down by the U.S. Court of Appeals for the Fifth Circuit Feb. 2.

Former city councilmember Donald Zimmerman challenged the city’s temporal restriction on campaign solicitations, prohibiting solicitation of campaign funds more than six months prior to an election, and its disgorgement provision, generally requiring candidates to return unused campaign contributions.

The city failed to prove that the limits were necessary to curb actual or perceived corruption, Judge Stephen A. Higginson wrote for the unanimous court.

The provisions are just the latest to fall after the U.S. Supreme Court limited the allowed justifications for restricting campaign finance activities, in Citizens United v. Fed. Election Comm’n. Only a desire to limit actual or perceived corruption will do, the Supreme Court said.

Clock Reset?

Although Austin argued that its solicitation restriction was intend to curb actual or perceived corruption, it didn’t prove that the restriction would actually do that, the court said.

The city offered no justification why a contribution made 12 months prior to an election would be more dangerous than one made six months prior to the election, the court said.

And Austin didn’t even attempt to justify its disgorgement provision as necessary to prevent actual or perceived corruption, the court said.

The city instead argued that there was no First Amendment right to use funds from one campaign to the next.

The “‘First Amendment clock is re-set’ if and when a new campaign begins,” the city argued.

The court disagreed. Though “a donor’s interest in voicing support for a particular candidate may end with the passing of one election cycle—for any number of reasons, the donor may no longer support that same candidate if and when the candidate runs again—that does not mean that all First Amendment rights associated with that contribution so too must end,” the court said.

Contributions, not matter when received, help a “candidate communicate a political message,” it said. Therefore the “candidate’s expenditure of that money to engage in political speech is then afforded its own constitutional protection.”

The court upheld the city’s $350 base limit on contributions from individual donors, however.

The case is Zimmerman v. City of Austin , 2018 BL 34321, 5th Cir., No. 16-51366, 2/1/18 .

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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