Summary

Zimmerman v. City of Austin is a First Amendment challenge to Austin’s municipal campaign finance law, including its contribution limits for city council candidates. For decades, the Supreme Court has acknowledged that the contribution limits serve the important goal of preventing corruption and the appearance of corruption, while at the same time only minimally burdening First Amendment rights.

UPDATE: On February 1, the Fifth Circuit panel issued a unanimous opinion, upholding the city's contribution limits. But the fight to protect contribution limits is not over, as we expect the decision to be appealed.

What’s at Stake?

Thirty-nine states and countless local governments limit the amount of money donors can contribute to candidates. Courts have long recognized that these laws are effective tools at preventing corruption and its appearance. If the Fifth Circuit Court of Appeals adopts Zimmerman’s proposed rigorous standard of review, contribution limits across the country will be opened up to new scrutiny and decades of settled law will be called into question. This would hamstring the ability of state and local governments to fight corruption in government.

Background

In 1997, voters in Austin, Texas enacted a campaign finance reform law that, among other things, capped the amount donors could give to candidates for city council, created a black-out period during which candidates could not receive campaign donations, and required that unused campaign funds be spent or donated to charity shortly after the election. In 2006, the Austin City Council revised the contribution limits and pegged them to inflation; in 2016, the contribution limit was $350.

An incumbent city council member, Donald Zimmerman, filed a federal lawsuit against the city in 2015 arguing that these campaign finance regulations violated the First Amendment. The district court upheld the contribution limits, but invalidated the black-out period and dissolution requirements.

Zimmerman appealed the district court’s decision upholding the contribution limits to the Fifth Circuit, and the city cross-appealed the invalidation of the black-out period provision and the dissolution requirement. Throughout the litigation, Zimmerman has advocated that longstanding precedent upholding contribution limits be set aside and replaced with a far more demanding standard that would jeopardize similar contribution limits across the country.

On July 20, 2016, the district court upheld the contribution limits, but invalidated other provisions of the law. On appeal, Zimmerman, the former city council member who brought the suit, is asking the Fifth Circuit to reject the longstanding precedent upholding contribution limits as constitutional, and instead adopt a rigorous standard of review that would eliminate decades of deference courts have granted to legislatures in determining whether to adopt contribution limits and which dollar level to choose.

CLC, along with Dēmos, filed an amicus brief on May 8, 2017, arguing that Austin’s contribution limits should be upheld. CLC’s brief emphasizes the Supreme Court resolved this issue long ago—that Austin has the right to employ contribution limits as a means of preventing corruption and its appearance and that the court should defer to its judgment in setting the right amount for those limits.

Petitioners from the state of Maryland have brought a partisan gerrymandering case claiming their First Amendment rights were violated and they were discriminated against because of their political party affiliations when the state drastically redrew the sixth congressional district to unseat the incumbent Republican member of congress and ensure the election of a Democrat. Maryland's redistricting process happened in 2011, and the result was a severe partisan bias.

The U.S. Supreme Court will hear oral arguments for this case on March 26, 2019.

League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania is a challenge to the state’s 2011 congressional district map. The challengers argue that the map is an extreme partisan gerrymander, in violation of the Pennsylvania Constitution’s Free Expression and Association Clauses, as well as its Equal Protection guarantees and the Free and Equal Clause.

The challengers have proposed a judicially manageable test for identifying such gerrymanders, including evidence that social science metrics, such as the efficiency gap, show that the plan’s partisan skew is large and likely to remain throughout the decade regardless of the will of the electorate. 

The map was drawn and enacted by a Republican-led legislature in a rushed process, excluding the public or Democratic legislators, and allowing no meaningful opportunities for input. In the first election under the map in 2012, Republicans won 72 percent of Pennsylvania’s congressional seats despite winning only 49 percent of the popular statewide vote. In the 2014 and 2016 election cycles, Republicans were able to maintain this lopsided advantage, despite receiving only a slim majority of the total votes.

In its friend-of-the-court brief to the Supreme Court of Pennsylvania, CLC argues that Pennsylvania’s gerrymandered congressional map penalizes voters on the basis of their political views and the practice of gerrymandering nationwide is incompatible with a healthy democracy. CLC further argues that the challengers’ proposed test for identifying when a partisan gerrymander should be struck down is judicially manageable and easily applied by courts.

What’s at stake?

The Pennsylvania case is unique, because it challenges a map under the state Constitution, rather than the federal Constitution. This allows the Pennsylvania Supreme Court to set a standard for determining how much partisanship is too much, independent of any standard the U.S. Supreme may decide to put in place.

The risk that partisan gerrymandering poses to our democracy is intensifying over time. This is due to many factors, including technological advances. The practice, designed to entrench the party in power, undermines our republican form of government and causes citizens to lose faith in the accountability of democratic institutions. That is why CLC is litigating cases about partisan gerrymandering in Wisconsin and North Carolina as well.

Most importantly, citizens lose the capacity to change the institutions that are designed to represent them through elections. Democrats in Pennsylvania are essentially shut out of the political process due to the manipulation of congressional districts by the party in power. In order to restore fair representation to all citizens in Pennsylvania, this issue must be rectified by the courts.

On Jan. 22, 2018, the Pennsylvania Supreme Court struck down the Pennsylvania congressional map as an unconstitutional partisan gerrymander. A remedial plan was approved by the Pennsylvania Supreme Court on Feb. 19 and will be used for the 2018 congressional elections.

Schickel v. Dilger is a challenge to several pillars of Kentucky’s legislative ethics laws that prevent lobbyists from corrupting state legislators with gifts and campaign contributions. The suit challenges laws that 1) prohibit lobbyists from contributing to the campaigns of Kentucky state legislators and legislative candidates during the legislative session; 2) prohibit such contributions at other times; 3) prohibit legislators from accepting gifts from lobbyists, and; 4) prohibit lobbyists from serving as campaign treasurers or soliciting, receiving, or otherwise directing—i.e., “bundling”—campaign contributions.

The challenged laws were passed in the wake of an infamous public corruption scandal in Kentucky, “Operation BOPTROT,” which led to charges against fifteen Kentucky legislators and lobbyists connected with the horse-racing industry. In response, Kentucky’s legislature passed strong ethics laws to protect its legislative and electoral processes from rampant corruption, as well as to restore Kentuckians’ faith in their government.

A federal trial court upheld the ban on campaign contributions during the legislative session, but struck down the other aspects of the law as insufficiently tailored to the state’s anticorruption goals. The Kentucky Legislative Ethics Commission (“KLEC”) is appealing to the Sixth Circuit Court of Appeals to preserve all elements of the law as crucial efforts to protect the integrity of its government.[1]

CLC filed a friend-of-the-court brief in support of Kentucky’s appeal. CLC is arguing that Kentucky has numerous reasons that justify its stringent efforts to maintain strong ethical boundaries between its legislators and the lobbyists who are paid to influence them. Kentucky’s own history, as well as experience elsewhere, demonstrates the validity and vital importance of strong ethics laws like Kentucky’s, both to prevent corruption and to ensure that public servants actually serve the public’s interest.

What’s at stake

Many states and municipalities have laws regulating the relationship between lobbyists and legislators, including laws limiting or prohibiting lobbyist campaign contributions and bans on lobbyist gift-giving to legislators.

Courts have long recognized that large campaign contributions can create the risk of actual corruption, or at least the appearance of corruption. That risk is heightened when the contributor’s job is to influence the very legislator to whom he or she contributes. States and municipalities are entitled to address those concerns by imposing reasonable restraints on lobbyists’ ability to seek favors from the legislators they lobby with campaign contributions, or to collect cash for their campaigns.

Moreover, lobbyist gift bans are used widely at all levels of government to ensure the integrity of public officeholders. These bans prevent corruption and preserve the public’s confidence that its government is working for the general welfare and is not influenced by lavish gifts.

Similar corruption concerns have prompted more and more states to consider laws comparable to Kentucky’s. As well-financed lobbying of state legislatures increases, it is as important as ever to equip states with the regulatory tools needed to protect against the clear opportunities for abuse presented by a lobbying system that gives narrow interests inordinate sway over both electoral and legislative processes.

[1] Plaintiffs also challenged several aspects of the state’s campaign finance laws, including its contribution limits. See Schickel v. Dilger, No. 2:15-cv-155 (WOB-JGW) (E.D. Ky. June 6, 2017), https://www.courthousenews.com/wp-content/uploads/2017/06/KentuckyLobbyists.pdf. Most of those claims, which are being separately defended by the Kentucky Registry of Election Finance (“KREF”) were either upheld or mooted by intervening legislative action, but they remain at issue on appeal. CLC’s brief focuses on the ethics provisions.

Facts of the Case             

Fair Districts Colorado, a redistricting reform group, proposed a series of ballot initiatives that seek to establish independent redistricting commissions (IRCs) to draw Colorado’s state legislative and congressional district lines. The IRCs are designed to promote a more democratic process for Colorado redistricting, which happens every ten years with the census. In order to achieve this goal, the initiatives lay out criteria for drawing district lines meant to protect voters of color and to prevent one political party from unilaterally controlling the redistricting process. One such criterion calls for the protection of  communities of interest, defined as groups that share ethnic, cultural, economic, trade area, geographic, demographic, racial or linguistic ties.

The initiatives were submitted to the Colorado Title Board, which reviews proposed ballot initiative language. At the Title Board, the initiatives were challenged by a group of petitioners for violating the Colorado Constitution’s “single subject” requirement for ballot initiatives. The single-subject rule applies to many states, including Colorado, and limits the scope of ballot initiatives to one issue. Specifically, the challengers argued that the initiatives “authoriz[ed]—as a substantive matter and for the first time—‘communities of interest’ based on voters’ race or language group” which would “fundamentally alter the purpose” of state legislative and congressional representation in Colorado. Petitioners argued that including race and language groups in the community of interest criterion would allow a “new form of race-based districting [to be] authorized in Colorado.” The Title Board denied the challenge and set titles for the initiatives, and petitioners appealed to the Colorado Supreme Court in December 2017.

What’s at stake

CLC submitted a friend-of-the-court brief on Jan. 4, 2018 in support of those seeking to get the redistricting reform initiatives on the ballot. CLC’s brief outlines the importance of allowing IRCs to be advanced through ballot initiatives, especially where there is no incentive for incumbents to relinquish their control over redistricting. The brief next explains the benefits of IRCs, and highlights evidence from social and political science that points to the improvements in democracy that have resulted from the introduction of IRCs in other states. Next, the brief argues that the initiatives’ protections for racial, ethnic, and language minorities do not address multiple subjects, but instead, accurately reflect existing federal and Colorado law with respect to communities of color. CLC’s brief further explains that including race as one of many redistricting criteria to be considered when drawing maps does not require an IRC to engage in racial gerrymandering.

The Colorado Supreme Court’s decision in the case will determine whether the ballot initiatives can be included on the ballot in 2018.