King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs v. Texas Democratic Party Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party And John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk

• Court: Court of Appeals of Texas
• Decided: January 16, 2015
• Docket: 03-12-00255-CV
• Status: Published

Opinion

ACCEPTED 03-12-00255-CV 3797186 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/16/2015 12:07:35 PM JEFFREY D. KYLE CLERK

Appeal No. 03-12-00255-CV FILED IN 3rd COURT OF APPEALS In the Court of Appeals for the Third Judicial District • Austin, Texas AUSTIN, TEXAS 1/16/2015 12:07:35 PM JEFFREY D. KYLE King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht, and Diane Clerk Josephs,

Appellants

v.

Texas Democratic Party; Boyd Richie, in his capacity as Texas Democratic Party chairman; and John Warren, in his capacity as Democratic nominee for Dallas County clerk,

Appellees

Appellants' Motion for En-Bane Reconsideration

Appeal from the District Court of Travis County, Texas, 261st Judicial District Cause No. D-1-GN-11-002363 (John Deitz, P.J.)

MichaelS. Hull James Bopp, Jr., Ind. No. 2838-84 Texas Bar No: 10253400 Randy Elf, New York No. 2863553 HULL HENRICKS LLP THE BOPP LAW FIRM, P.C. 221 West 6th Street, Suite 960 1 South 6th Street Austin, Texas 78701 Terre Haute, Ind. 4 7807 Telephone (512) 472-4554 Telephone (812) 232-2434 Facsimile (512) 494-0022 Facsimile (812) 235-3685 jboppjr@aol.com

Additional Counsel Listed On January 16, 2015 Following Page Brock C. Akers Kelly J. Shackelford Texas Bar No. 00953250 Texas Bar No. 18070950 THE AKERS FIRM Jeffrey C. Mateer 3401 Allen Parkway, Suite 101 Texas Bar No. 13185320 Houston, Texas 77019 Hiram S. Sasser, III Telephone: (713) 877-2500 Texas Bar No. 24039157 Facsimile: 1(713) 583-8662 Justin E. Butterfield Texas Bar No. 24062642 Margaret A. Wilson LIBERTY INSTITUTE Texas Bar No. 21704400 2001 West Plano Parkway, 807 Brazos Street, Suite 1014 Suite 1600 Austin, Texas 78701 Plano, Texas 75075 Telephone: (512) 970-9572 Telephone: (972) 941-4444 Facsimile: (512) 474-2540 Facsimile: (972) 941-4457

Jonathan M. Saenz Texas Bar No. 24041845 LIBERTY INSTITUTE 900 Congress, Suite 220 Austin, Texas 78701 Telephone: (512) 478-2220 Facsimile: (512) 478-2229

2 Identity of Counsel and Parties

Appellants: King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs

Attorneys for Appellants:

Michael S. Hull Margaret A. Wilson Texas Bar No. 10253400 Texas Bar No. 21704400 HULL HENRICKS LLP 807 Brazos Street, Suite 1014 221 West 6th Street, Suite 960 Austin, Texas 78701 Austin, Texas 78701 Telephone: (512) 970-9572 Telephone: (512) 4 72-4554 Facsimile: (512) 474-2540 Facsimile: (512) 494-0022 Kelly J. Shackelford James Bopp, Jr. Texas Bar No. 18070950 Ind. Bar No. 2838-84 Jeffrey C. Mateer Randy Elf Texas Bar No. 13185320 New York Bar No. 2863553 Hiram S. Sasser, III THE BOPP LAW FIRM, P .C. Texas Bar No. 24039157 1 South 6th Street Justin E. Butterfield Terre Haute, Indiana 4 7807 Texas Bar No. 24062642 Telephone: (812) 232-2434 LIBERTY INSTITUTE Facsimile: (812) 235-3685 2001 West Plano Parkway, Suite 1600 Brock C. Akers Plano, Texas 75075 Texas Bar No. 00953250 Telephone: (972) 941-4444 THE AKERS FIRM Facsimile: (972) 941-4457 3401 Allen Parkway, Suite 101 Houston, Texas 77019 Jonathan M. Saenz Telephone: (713) 877-2500 Texas Bar No. 24041845 Facsimile: 1(713) 583-8662 LIBERTY INSTITUTE 900 Congress, Suite 220 Austin, Texas 78701 Telephone: (512) 478-2220 Facsimile: (512) 478-2229

3 Appellees: Texas Democratic Party, Boyd L. Richie, in his Capacity as Chairman of The Texas Democratic Party and John Warren, in his Capacity as Democratic Nominee for Dallas County Clerk 55th Judicial District

Attorneys for Appellees:

Dicky Grigg State Bar No. 08487500 SPIVEY & GRIGG, LLP 48 East Avenue Austin, Texas 78701 Telephone: (512) 474-6061 Facsimile: (512) 474-1605

Chadd W. Dunn, General Counsel State Bar No. 24036507 K. Scott Brazil State Bar No. 02934050 BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, Texas 77068 Telephone: (281) 580-6310 Facsimile: (281) 580-6362

4 Table of Contents

Identity of Counsel and Parties ····························································· 3

Table of Contents ····························································· 5

Index of Authorities ····························································· 7

Motion ........................................................... 11

I. The panel applies the wrong tests for a facial challenge ................................. 11

II. The panel wrongly presumes the challenged law is constitutional ................ 17

III. Argument ........................................................... 18

A. The provisions creating a private right of action for enforcement of the

Texas Election Code are unconstitutional.. ........................................... 18

B. The Texas ban on contributions is unconstitutional.. ........................... 20

C. The Texas campaign-contribution and political-contribution definitions

are unconstitutional ··························································· 24

D. The Texas political-committee, specific-purpose committee, and

general-purpose-committee definitions are unconstitutional. ............. 25

IV. Prayer ··························································· 29

Certificate of Compliance ··························································· 30 5 Certificate of Service ··························································· 31

Addendum ··························································· 32

Second Memorandum Opinion by the Panel (Dec. 8, 2014) ....................................... 33

Accompanying Judgment (Dec. 8, 2014) ··························································· 63

6 Index of Authorities

Cases

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ......................................... 23

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) .............................. 21

Blum v. Yaretshy, 457 U.S. 991 (1988) ....................................................................... 20

Broohs v. Northglen Ass'n, 141 S.W.3d 158 (Tex. 2004) ............................................. 17

Buchley v. Valeo, 424 U.S. 1 (1976) ..................................................... 18, 23, 25, 26, 27

Buchley v. Valeo, 519 F.3d 821 (D.C. Cir.l975) (en-bane) .......................................... 27

California Med. Ass'n v. FEC, 453 U.S. 182 (1981) .................................................... 23

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir.2003) ("CPLC-f') ... 27

California Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141 (9th Cir.2001) ........ 12

Catholic Leadership Coalition of Texas v. Reisman, 764 F.3d 409 (5th Cir.2014) ... 13,

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir.2006) ............. 29

Citizens United v. FEC, 558 U.S. 310 (2010) ........................................................ 17, 21

City of Houston v. Hill, 482 U.S. 451 (1987) ............................................................... 12

Cohen v. California, 403 U.S. 15 (1971) ...................................................................... 23

Cooh v. Tom Brown Ministries, 385 S.W.3d 592 (Texas-App.-El Paso 2012) ............ 24

Doe v. City of Albuquerque, 667 F.3d 1111 (lOth Cir.2012) ....................................... 17

Dombrowshi v. Pfister, 380 U.S. 479 (1965) ............................................................... 19

Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App.2013) ...................................................... 16

FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) .................................... 17 7 FEC v. Beaumont, 539 U.S. 146 (2003) ..................................................... 21, 22, 23, 24

FEC v. Florida for Kennedy Comm., 681 F.2d 1281 (11th Cir.l982) ......................... 26

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ("MCFL") ........... 26

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ("WRTL-If') .. 22, 23, 25, 28

Fort Wayne Boohs, Inc. v. Indiana, 489 U.S. 46 (1989) .............................................. 18

Griffin v. Secretary of Veterans Affairs, 288 F.3d 1309 (Fed.Cir.2002) ..................... 12

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S.

557 (1995) ················································································································· 23

Iowa Right to Life Comm., Inc. v. Tooher, 717 F.3d 576 (8th Cir.2013) ("IRLC-Il'). 28

Jordan v. Pugh, 425 F.3d 820 (lOth Cir.2005) ........................................................... 12

Justice v. Hosemann, 771 F.3d 285 (5th Cir.2014) ..................................................... 13

Kolender v. Lawson, 461 U.S. 352 (1983) ................................................................... 12

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................................ 29

McCutcheon v. FEC, 134 S.Ct. 1434 (2014) .......................................................... 22, 24

Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir.2012)

("MCCL-III') (en-bane) ............................................................................................. 26

NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................... 18

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (lOth Cir.2010) ("NMYO'). 26

North Carolina Right to Life, Inc. v. Leahe, 525 F.3d 274 (4th Cir.2008) ("NCRL-III')

······················································································································ 27, 28, 29

Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) ............................................................... 19

Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.2010) ............................................ 18 8 Republican Party of N.M. v. King, 741 F.3d 1089 (lOth Cir.2013) ("RPNM') ........... 24

Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928) ............................................. 20

Shami v. C.I.R., 741 F.3d 560 (5th Cir.2014) ............................................................. 14

Skinner v. Railway Labor Execs. Ass 'n, 489 U.S. 602 (1989) .................................... 20

State v. Johnson, 425 S.W.3d 542 (Tex.App.-Tyler 2014) .......................................... 16

United States v. Salerno, 481 U.S. 739 (1987) ............................................................ 11

United States v. Stevens, 559 U.S. 460 (2010) ................................................ 12, 14, 16

United States v. Torres, 767 F.3d 426 (5th Cir.2014) ................................................. 14

United States v. Williams, 553 U.S. 285 (2008) .......................................................... 13

Unity08 v. FEC, 596 F.3d 867 (D.C. Cir.2010) ........................................................... 26

Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir.2013) ............................. 13, 14, 16

Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................................... 12

Wilson u. State Bar of Ga., 132 F.3d 1422 (11th Cir.l998) ........................................ 12

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir.2014) ("Barland-Il')

...................................................................................................................... 12, 24, 26

Statutes

TEX. ELEC. CODE 251.001 ..................................................................... 24, 25, 26, 27, 28

TEX. ELEC. CODE 253.081 ................................................................................. 18, 19, 20

TEX. ELEC. CODE 253.091 ............................................................................................. 20

TEX. ELEC. CODE 253.094 ............................................................................................. 20

TEX. ELEC. CODE 253.131 ....................................................................................... 18, 19

TEX. ELEC. CODE 253.132 ................................................................................. 18, 19, 20 9 Other Authorities

Robert Bauer, Breahing Bad in Albuquerque? Or: the Question of Corporate

Contributions After Citizens United, More Soft Money Hard Law, Sept. 12, 201321

Rules

TEX.R.APP.P. 9.4 ........................................................................................................... 30

10 Motion

This is a facial challenge to the constitutionality of Texas Election Code

prov1s10ns. SECOND MEM. OP. at 1.

Counter-Defendants and Appellees Texas Democratic Party; Boyd Richie, in

his capacity as Texas Democratic Party chairman; and John Warren, in his capacity

as Democratic nominee for Dallas County clerk brought suit against Counter-

Plaintiffs and Appellants King Street Patriots, Inc. ("KSP"), Catherine Engelbrecht,

Bryan Engelbrecht, and Diane Josephs alleging Texas Election Code violations. Id.

at 2-3.

The trial court rejected Appellants' facial challenge. Id. at 5-6. A panel of

this Court affirmed on October 8, 2014. FIRST MEM. OP. at 6-30. On Appellants'

previous motion for rehearing and en-bane reconsideration, SECOND MEM. OP. at 1,

the panel revised its opinion and again affirmed on December 8, 2014. Id. at 6-30.

Pursuant to Texas Rule of Appellate Procedure 49, Appellants move for

reconsideration en-bane- not panel rehearing- of the December 8, 2014, opinion

and judgment (copies attached).

I. The panel applies the wrong tests for a facial challenge.

United States v. Stevens, which the panel parenthetically cites, id. at 9, holds:

To succeed in a typical facial attack, [challengers] would have to

establish "that no set of circumstances exists under which [the law]

would be valid," United States v. Salerno, 481 U.S. 739, 745 (1987), or 11 that the [law] lacks any "plainly legitimate sweep," Washington v.

Glucksberg, 521 U.S. 702, 740n.7 (1997) (Stevens, J., concurring).

559 U.S. 460, 472 (2010) (emphasis added), quoted in Voting for Am., Inc. v. Steen,

732 F.3d 382, 387 (5th Cir.2013); see SECOND MEM. OP. at 8 (quoting a Salerno-like

standard (citations omitted)).

However, "neither Salerno nor Glucksberg is a speech case." Stevens, 559

U.S. at 472. In facial-vagueness 1 and facial-overbreadth challenges to speech law,

the test is relaxed: A court asks only whether the law "reaches a substantial

amount of constitutionally protected conduct." City of Houston v. Hill, 482 U.S. 451,

458 (1987) (citations omitted); see also Kolender v. Lawson, 461 U.S. 352, 358n.8

(1983) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494 (1982)).

In other words, the test for facial constitutionality of speech law derives from

Broadrick v. Oklahoma and asks only whether "a substantial number of [the law's]

applications are unconstitutional, judged in relation to the [law's] plainly legitimate

sweep." Stevens, 559 U.S. at 473 (quoting Washington State Grange v. Washington

State Republican Party, 552 U.S. 442, 449n.6 (2008)); see also United States v.

1 E.g., Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 835-36 (7th Cir.2014) ("Barland-If'); Jordan v. Pugh, 425 F.3d 820, 828 (lOth Cir.2005); Griffin v. Secretary of Veterans Affairs, 288 F.3d 1309, 1330 (Fed.Cir.2002); California Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1152 (9th Cir.2001); Wilson v. State Bar of Ga., 132 F.3d 1422, 1429 (11th Cir.1998).

12 Williams, 553 U.S. 285, 292-93 (2008) (citing Board of Trs. of State Univ. of N.Y. v.

Fox, 492 U.S. 469, 485 (1989); Broadrich v. Ohlahoma, 413 U.S. 601, 615 (1973)).

This is Fifth Circuit law. Voting for America, 732 F.3d at 387 (quoting

Stevens, 559 U.S. at [473]). Nevertheless, a later Fifth Circuit panel opinion on

Texas election law which the panel in this appeal cites, SECOND MEM. OP. at 2n.1, 9,

14, 26- and an even later Fifth Circuit panel opinion on Mississippi election law-

state that the test for facial constitutionality of speech law is in part whether "a

substantial number of [the law's] applications are unconstitutional, judged in

relation to the [law's] plainly legitimate sweep." Catholic Leadership Coal. of Tex. v.

Reisman, 764 F.3d 409, 426 (5th Cir.2014) (second alteration added) (quoting

Stevens, 559 U.S. at 473), quoted in Justice v. Hosemann, 771 F.3d 285, 296n.10

(5th Cir.2014) (reh'g pet. pending).

By also holding a Salerno! Gluchsberg-like unconstitutional-in-all-its-

applications or any-plainly-legitimate-sweep test can apply in facial challenges to

speech law, Catholic Leadership2 and Justice3 conflict4 with Voting for America,

2 764 F.3d at 426.

3 771 F.3d at 296.

4 Catholic Leadership holds that

Plaintiffs have two ways to prevail in their facial challenges to [law] because this is a First Amendment case. First, Plaintiffs can "establish that no set of circumstances exists under which [the law] would be valid or that the [law} lacl?-s any plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 472 (2010) (internal quotation marks and citation omitted). Second, Plaintiffs may also invalidate [law] as 13 which holds that - under Stevens, 559 U.S. at 473 - the "standard for facial

challenges" to speech law "is different" from Salerno (and, by extension,

Glucksberg). 732 F.3d at 387.

Being the earlier panel opinion, Voting for America- not Catholic Leadership

or Justice- controls. See Shami v. C.I.R., 741 F.3d 560, 569 (5th Cir.2014) ("When

panel opinions ... conflict, we ... follow the earlier opinion" (quoting H&D Tire &

Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir.2000))).

This is because one Fifth Circuit panel cannot overrule another. United

States v. Torres, 767 F.3d 426, 430 (5th Cir.2014) ("we must follow [the earlier panel

opinion] until the Supreme Court, this court sitting en[-]banc, or [the legislature]

says otherwise" (citing Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th

overbroad if they demonstrate that "a substantial number of [the law's] applications are unconstitutional, judged in relation to the [law's] plainly legitimate sweep." Id. at 473 (internal citations omitted).

764 F.3d at 426 (emphasis added; some alterations added), quoted in Justice, 771 F.3d at 296&n.10.

But this is unnecessarily complicated: Because Test (1) presents a higher hurdle for challengers to clear, those prevailing on Test (1) necessarily prevail on Test (2). See id. Being an alternative to Test (2), Test (1) is unnecessary.

More fundamentally, Stevens does not describe "two ways" to "prevail" in "facial challenges" to speech law. Id. Instead, Stevens first describes the "typical facial attack[,]" supra 11-12 (quoting 559 U.S. at 472), and then describes the test for facial challenges to speech law. Supra 12 (quoting 559 U.S. at 473). Only the latter analysis, not the former, applies to speech law. See Stevens, at 4 72-73. This is because under Stevens, id. at 473, the "standard for facial challenges" to speech law "is different" from Salerno (and, by extension, Glucksberg). Voting for America, 732 F.3d at 387.

14 Cir.2008) ("one panel ... may not overturn another ... absent an intervening change

in the law"))).

Nevertheless, the first opm10n m this appeal applied a Salerno-like

unconstitutional-in-all-its-applications test. See FIRST MEM. OP. at 1, 9, 11, 14, 26-

27, 28. When Appellants previously sought rehearing or en-bane reconsideration,

the panel changed the standard, yet not correctly.

The revised opinion quotes Catholic Leadership and conflicts with Voting for

America multiple times:

•Initially the panel says the alternative tests for facial

constitutionality of speech law are whether (1)(a) the law "lacks any

plainly legitimate sweep" or (2) "a substantial number of [the law's]

applications are unconstitutional, judged in relation to the [law's]

plainly legitimate sweep." SECOND MEM. OP. at 9 (emphasis added;

second alteration added).

•Later, in applying its tests, the panel- without mentioning Test (2)-

asks whether law (1)(a) "lacks any plainly legitimate sweep" or (1)(b)

"is unconstitutional in all circumstances[.]" Id. at 14 (emphasis

added).

15 •Still later, in applying its tests, the panel- without mentioning Test

(2)- applies only Test (1)(a). See id. at 26.

However, Test (2) is the only correct option.5 Tests (1)(a) and (1)(b) are for

"the typical facial attack" under Stevens, 559 U.S. at 472. Neither Test (1)(a) nor

Test (1)(b) applies to speech law.6 In applying only Test (2),7 this Court need not

hold that Catholic Leadership or Justice errs. 8 Rather, this Court need only

acknowledge that one Fifth Circuit panel cannot overrule another. 9

Like Voting for America, 732 F.3d at 387, recent Texas appellate courts

continue to recognize the Broadrich-based test 10 in both civil and criminal appeals

regarding speech law. See State v. Johnson, 425 S.W.3d 542, 546, 550-51 (Tex.App.-

Tyler 2014), pet. for discretionary review granted (April 9, 2014); Ex parte Lo, 424

S.W.3d 10, 18 (Tex.Crim.App.2013).

Indeed, the panel in this appeal cites other Texas appellate courts applying

the Broadrich-based test in challenges to speech law. See SECOND MEM. OP. at

5 Supra 12-13.

6 Supra 13-14&n.4.

7 Supra 11-13.

s Cf. supra 13-14n.4.

9 Supra 14-15.

IO Supra 12-13.

16 24n.7 (quoting Ex Parte Ellis, 309 S.W.3d 71, 90-91 (Tex.Crim.App.2010)

(citing/quoting, in turn, Broadrich, 413 U.S. at 615)); Commission for Lawyer

Discipline v. Benton, 980 S.W.2d 425, 436 (Tex. 1998) (quoting Houston, 482 U.S. at

458)).

Thus, the panel applies the wrong tests. This error urgently needs

correcting. Otherwise facial challenges to unconstitutional speech laws- not just in

this appeal, but in other appeals as well- will fail when they should succeed.

II. The panel wrongly presumes the challenged law is constitutional.

The panel "presum[es]" the challenged law is constitutional. Id. at 7 (quoting

Broohs v. Northglen Ass'n, 141 S.W.3d 158, 170 (Tex. 2004)).

However, Broohs is not a speech-law challenge. See 141 S.W.3d at 160-61. In

speech-law challenges, courts do not presume law is constitutional. Doe v. City of

Albuquerque, 667 F.3d 1111, 1120 (lOth Cir.2012) (citing ACORN v. Municipality of

Golden, 744 F.2d 739, 746 (lOth Cir.l984)). Deference to a legislature "cannot limit

judicial inquiry" regarding First Amendment rights. Otherwise, they "would be

subject to legislative definition"; "the First Amendment as a check on legislative

power would be nullified." FCC v. League of Women Voters of Cal., 468 U.S. 364,

387n.l8 (1984) (citing Landmarh Communications, Inc. v. Virginia, 435 U.S. 829,

843-44 (1978)). Citizens United v. FEC, for example, does not presume speech law

is constitutional, and it does not defer to a legislature. See 558 U.S. 310, 336-66

(2010). "When [a legislature] finds that a problem exists, [courts] must give that

17 finding due deference; but [a legislature] may not choose an unconstitutional

remedy." Id. at 361.

III. Argument

Appellants do not seek en-bane reconsideration on all their arguments.

Applying the correct facial-constitutionality test and declining to presume law is

constitutional, Appellants prevail.

A. The provisions creating a private right of action for enforcement of the Texas Election Code are unconstitutional.

Applying the wrong tests for facial constitutionality, see SECOND MEM. OP. at

14, the panel rejects Appellants' facial-overbreadth and facial-vagueness challenges

to Texas's private-right-of-action provisions. Id. at 14-17; TEX. ELEC. CODE 253.131,

253.132, 273.081.

Applying the right test, the private-right-of-action prov1s10ns are facially

unconstitutional, because they fail the Broadrick-based test.

Discovery can chill speech. See Bucl?ley v. Valeo, 424 U.S. 1, 68 (1976).

Texas's private-right-of-action provisions lack standards regarding what showing is

necessary to initiate discovery and what is discoverable. But the First Amendment

requires both. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62-64 (1989);

Perry v. Schwarzenegger, 591 F.3d 1147, 1163-64 (9th Cir.), cert. dismissed, 559 U.S.

1118 (2010). If one can allege wrongdoing and then commence discovery to see

whether one can prove the claim, then the protections of associational rights hardly

have any meaning. See NAACP v. Alabama, 357 U.S. 449, 462 (1958) (recognizing

18 "the vital relationship between freedom to associate and pnvacy m one's

associations"). Inadequate safeguards in enforcement proceedings threaten free

speech. See Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965). Because Texas's

private-right-of-action provisions do not delineate the showing necessary to seek

discovery in an action, they violate the First Amendment.

Although Osterberg v. Peca rejects a First Amendment challenge to the

private-right-of-action provisions, 12 S.W.3d 31, 49-50 (Tex.), cert. denied, 530 U.S.

1244 (2000), Osterberg considers only "who can seek and receive damages." Id. at

49 (emphasis in original). In addition, Osterberg considers that a political speaker

will be subject to only one enforcement proceeding. See id. ("that the person

enforcing the law and receiving damages can be a private party rather than the

State" (emphasis added)). However, Texas law allows for an unlimited number of

private parties to sue. See TEX. ELEC. CODE 253.131 ('~ach opposing candidate"),

253.132 ("each political committee"). Each candidate may sue a speaker who

violates the law. TEX. ELEC. CODE. 253.131(b). If the speech at issue in this appeal

were regarding one candidate, as in Osterberg, 12 S.W.3d at 35-36, there may be

only one private cause of action. However, when many candidates are involved,

many candidates may sue. Thus, Osterberg does not control here.ll

Moreover, the lack of standards for discovery and initiating a suit, see TEX.

ELEC. CODE 253.131, 253.132, 273.081, violates the Fourteenth Amendment's Due

11 In addition, Texas can step in and seek a treble penalty. See TEX. ELEC. CODE 253.133.

19 Process Clause. While the panel recognizes that Blum u. Yaretsl?-y holds the Due

Process Clause "erects no shield against merely private conduct, however

discriminatory or wrong[,]" SECOND MEM. OP. at 15 (quoting 457 U.S. 991, 1002

(1988)), Blum distinguishes "those cases in which the defendant is a private party

and the question is whether his conduct has sufficiently received the imprimatur of

the State so as to make it 'state' action for purposes of the Fourteenth Amendment."

457 U.S. at 1003. By undertaking a private right of action, private parties do what

the state does, which leads to enforcement of the law. This is an imprimatur for

state action. See TEX. ELEC. CODE 253.131, 253.132, 273.081. The panel holds that

the Due Process Clause applies only when there is state action, see SECOND MEM.

OP. at 15, and when law "delegate[s] legislative power to private citizens[,]" id. at

15n.4, but the Due Process Clause also applies when the state gives individuals

other powers as well, including power to enforce existing law. See Seattle Title

Trust Co. u. Roberge, 278 U.S. 116, 122 (1928).12

B. The Texas ban on corporate contributions is unconstitutional.

The panel holds Texas law bans corporate and union contributions. TEX.

ELEC. CODE 253.091, 253.094; SECOND MEM. OP. at 20.

12 The panel holds that Skinner u. Railway Labor Executives Association forecloses Appellants' Fourth Amendment challenge. See SECOND MEM. OP. at 15-16 (citing 489 U.S. 602, 624 (1989) (holding that the Fourth Amendment does not apply to a private party acting on its own initiative)). Appellants seek no en-bane reconsideration on this point here.

Appellants similarly seek no en-bane reconsideration here on the holding that this law is not a prior restraint. I d. at 17-18.

20 The panel rejects Appellants' First Amendment challenge to the corporate-

contribution ban, id., by relying on Ellis, which relies on FEC v. Beaumont, 539 U.S.

146 (2003). SECOND MEM. OP. at 20.

Although Beaumont upholds a corporate-contribution ban, 539 U.S. at 152-

63, while Citizens United rejects an independent-spending ban, 558 U.S. at 336-66,

Citizens United's reasoning supersedes Beaumont's. As a distinguished election

lawyer, leading Democrat, and former White House counsel to President Barack

Obama notes:

Reading Beaumont today, one is struck by a jurisprudence that measures up poorly to the tone and substance of Citizens United . ... [Beaumont] upheld a contributions ban with emphasis on the "special characteristics of the corporate structure." [539 U.S.] at 153, quoting National Right to Worh Committee v. [FEC], 457 U.S. 197[,] 209 (1982). Ten times, [Justice] Souter cited Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), overruled by Citizens United, and in upholding legislative authority to impose a complete contributions ban, he specifically cites the anti-distortion rationale of Austin that the Citizens United majority has rejected. Beaumont[, 539 U.S.] at 158 (the corporations enjoying the "special benefits conferred by the corporate structure ... present the potential for distorting the political process.")[.] [Justice] Souter also relied heavily on National Right to Worh Committee, which rested largely on a view of the particular dangers posed by corporations of any and all sizes to the political process. Beaumont[, 539 U.S.] at 156 ("National Right to Worh all but decided the issue" before the Court).

Robert Bauer, Breahing Bad in Albuquerque? Or: the Question of Corporate

Contributions After Citizens United, More Soft Money Hard Law, Sept. 12, 2013,

available at http://www .moresoftmoneyhardlaw .com/20 13/09/breaking-bad-in-

albuquerque-or-the-question-of-corporate-contributions-after-citizens-united

(discussing Giant Cab Co. v. Bailey, No. 13-cv-426, MEM. OP. at 8 (D.N.M. Sept. 4, 21 2013), available at http://www.nmcourt.fed.us/Drs-Web/view-file?unique-

identifier=0005525024-0000000000).

To address these points in even more detail: Post-Beaumont Supreme Court

opinions undercut Beaumont in at least seven ways.

First, the antidistortion rationale and interest on which Beaumont relies, see

539 U.S. at 154, 158, 160, is invalid after Citizens United, 558 U.S. at 349-56.

Second, Beaumont looks beyond preventing quid-pro-quo corruption (or its

appearance) to preventing "undue influence" (or its "appearance"), 539 U.S. at 156

(citation omitted), but after Citizens United, the only cognizable interest in banning

or otherwise limiting speech, including contributions, is preventing quid-pro-quo

corruption (or its appearance). McCutcheon v. FEC, 572 U.S. __, 134 S.Ct. 1434,

1441 (2014) (quoting Citizens United, 558 U.S. at 359).

Third, Beaumont looks to the dissenting-shareholder-protection rationale,

539 U.S. at 154, which is invalid after Citizens United, 558 U.S. at 361-62.

Fourth, Beaumont's assertion that First Amendment burdens of a corporate-

contribution ban are diminished because "individual members of corporations" are

"free to make their own contributions," 539 U.S. at 161n.8, is inconsistent with FEC

v. Wisconsin Right to Life, Inc., which holds that alternatives do not fix First

Amendment problems. Suggesting alternatives is like telling Cohen to wear

another jacket. See 551 U.S. 449, 477n.9 (2007) ("WRTL-II') (citing Cohen v.

22 California, 403 U.S. 15 (1971) 13). And banning joint activity because individual

activity is available vitiates the right of "like-minded persons to pool their resources

in furtherance of common political goals[,]" Buckley, 424 U.S. at 22, both in an

incorporated association and with a chosen candidate or political committee.

Fifth, Beaumont suggests that "[t]he PAC option allows corporate political

participation[.]" 539 U.S. at 163. Citizens United undercuts that by holding a

political committee that a corporation forms/has is "separate" from the corporation.

558 U.S. at 337.14 Forming/having a political committee "does not allow [a]

corporationD to speak." Id.

13 Cohen, a Vietnam era decision, holds that Paul Robert Cohen had a First Amendment right to wear a jacket saying"__ the Draft" in a courthouse. 403 U.S. at 16-26. WRTL-II relies on Cohen:

we disagree with the dissent's view that corporations can still speak by changing what they say to avoid mentioning candidates, post, at 2702- 2703. That argument is akin to telling Cohen that he cannot wear his jacket because he is free to wear one that says "I disagree with the draft," cf. Cohen v. California, 403 U.S. 15 (1971), or telling 44 Liquormart that it can advertise so long as it avoids mentioning prices, cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). Such notions run afoul of "the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573 (1995).

551 U.S. at 477n.9.

14 When an organization forms/has a political committee, and the political committee speaks, the speech is the speech of the political committee, not the organization, because such a political committee is "separate" from the organization. Citizens United, 558 U.S. at 337; California Med. Ass'n v. FEC, 453 U.S. 182, 196 (1981).

23 Sixth, as for preventing circumvention of valid contribution bans and other

limits, Beaumont, 539 U.S. at 155 (citation omitted), "valid" is the key word, id.,

because preventing "circumvention" cannot justify otherwise unconstitutional law.

McCutcheon, 134 S.Ct. at 1452-60; Republican Party of N.M. v. King, 741 F.3d 1089,

1102 (lOth Cir.2013) ("RPNM') ("there can be no freestanding anti-circumvention

interest").

Seventh, Beaumont expressly defers to a legislature. 539 U.S. at 157, 159,

162n.9. But under Citizens United, the First Amendment overrides deference:

"When [a legislature] finds that a problem exists, we must give that finding due

deference; but [a legislature] may not choose an unconstitutional remedy." 558 U.S.

at 361.

C. The Texas campaign-contribution and political-contribution definitions are unconstitutional.

"Campaign contribution" is defined as: "a contribution to a candidate or

political committee that is offered or given with the intent that it be used m

connection with a campmgn for elective office or on a measure." TEX. ELEC.

CODE 251.001(3) (emphasis added).

By contrast, when an organization itself must be a political committee or a political- committee-like organization to speak, the organization itself speaks and bears political-committee(-like) burdens. Barland-11, 751 F.3d at 812-16.

Cook v. Tom Brown Ministries conflates forming/having and being a political committee. See 385 S.W.3d 592, 601, 604 (Texas-App.-El Paso 2012) (holding that law banning an organization's speech and letting the organization "create its own political committee," which then speaks, does not ban the organization's speech), review denied, (Tex. Dec. 14, 2012).

24 This definition is circular, because the campaign-contribution definition

depends on the political-committee definition, id., which depends on the political-

contribution definition, id. 251.001(12), which depends on the campaign-

contribution definition. 1d. 251.001(5).

Furthermore, the definition is intent based, contrary to WRTL-11, 551 U.S. at

466-69. An intent-based test affords "no security for free discussion" and "blankets

with uncertainty whatever may be said." 1d. at 467-68. "It compels the speaker to

hedge and trim," and places the speaker "wholly at the mercy of the varied

understanding of his hearers and consequently of whatever inference may be drawn

as to his intent and meaning." Buckley, 424 U.S. at 43.

Section 251.001(5) then defines a "political contribution" as "a campmgn

contribution or an officeholder contribution." Since the campaign-contribution

definition is vague, see id., the political-contribution definition is also vague.I5

D. The Texas political-committee, specific-purpose committee, and general-purpose-committee definitions are facially unconstitutional.

Appellees contend that "based upon its political activities," KSP itself must be

a "political committee." 16 SECOND MEM. OP. at 2.

15 Appellants seek no en-bane reconsideration on other points regarding the contribution and expenditure definitions here. See SECOND MEM. OP. at 21-24.

16As opposed to having to fonnlhave a political committee, and let only such a political committee speak. Supra 23-24n.14.

25 The proper challenge to law reqmrmg an organization to be a political

committee or a political-committee-like organization is to the political-committee, or

the political-committee-like, definition.l7

Applying the wrong test for facial constitutionality, see id. at 26, the panel

rejects Appellants' facial-overbreadth and facial-vagueness challenges to Texas's

political-committee, specific-purpose-committee, and general-purpose-committee

definitions. Id. at 27-28; TEX. ELEC. CODE 251.001.

•Applying the right test, Appellants prevail.

Registration, recordkeeping, and extensive, ongoing reporting are "onerous"

political-committee(-like) burdens. Citizens United, 558 U.S. at 337-40.18

To counter as-applied and facial overbreadth, Barland-II, 751 F.3d at 839; see

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252n.6, 262 (1986)

("MCFL"), Bucl:dey allows government to trigger political-committee(-like) burdens

only for "organizations" that are (a) "under the control of a candidate" or candidates

17 See Buckley, 424 U.S. at 79 (addressing how "'political committee' is defined" and holding what "the words 'political committee' ... need only encompass" to be constitutional); Barland-II, 751 F.3d at 811, 812, 832-33, 834, 838, 839-40, 843-44; Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 872 (8th Cir.2012) ("MCCL-IIl') (en-bane); New Mexico Youth Organized v. Herrera, 611 F.3d 669, 676 (lOth Cir.2010) ("NMYO') ("classified as political committees"); Unity08 v. FEC, 596 F.3d 861, 867 (D.C. Cir.2010) (quoting FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 392, 395-96 (D.C. Cir.), cert. denied, 454 U.S. 897 (1981)); NCRL-III, 525 F.3d at 288-89; FEC v. Florida for Kennedy Comm., 681 F.2d 1281, 1287 (11th Cir.l982).

18 The reporting on Citizens United pages 366-71 is non-political-committee, one- time/event-driven reporting. Barland-Il, 751 F.3d at 824, 836-37, 839, 841; MCCL- III, 692 F.3d at 875n.9.

26 in their capacities as candidates, or (b) have "the major purpose" of "nominat[ing] or

elect[ing] a candidate" or candidates. 424 U.S. at 79, followed in MCFL, 479 U.S. at

252n.6, 262.19

Buckley applies not only to federal law but also to state law. E.g., North

Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 287-90 (4th Cir.2008) ("NCRL-

Ill'). Because Texas's political-committee, specific-purpose-committee, and general-

purpose-committee definitions, TEX. ELEC. CODE 251.001, trigger political-committee

and political-committee-like burdens beyond when Bucldey allows government to

trigger them, the Texas definitions are facially unconstitutional. See NCRL-III, 525

F.3d at 287-90.

Rather than limiting such burdens to organizations with "the major purpose"

under Buckley, Texas reaches organizations with "a principal purpose" of accepting

contributions or making expenditures. SECOND MEM. OP. at 27. Yet "a principal

purpose" - or even "the principal purpose" - are not the same as "the major

purpose" under Buckley, see NCRL-III, 525 F.3d at 287-90, because "principal"

means "first, highest, or foremost in importance, rank, worth, or degree; chief[,]"

19 This goes to the tailoring part of constitutional scrutiny, not the government- interest part. See Barland-II, 751 F.3d at 841-42; Buckley v. Valeo, 519 F.3d 821, 869 (D.C. Cir.1975) (en-bane), aff'dlrev'd on other grounds, 424 U.S. 1 (1976).

In this appeal, it is unnecessary to consider whether ballot-measure speech allows government to trigger political-committee(-like) burdens, cf California Pro-Life Council v. Getman, 328 F.3d 1088, 1101n.16 (9th Cir.2003) ("CPLC-l') (quoting MCFL, 479 U.S. at 252-53), because no ballot-measure speech is at issue.

27 SECOND MEM. OP. at 27 (brackets omitted), while "major" in "the major-purpose

test" means "majority." 20 What is "principal" is not necessarily the majority. See id.

•As to vagueness: The panel's definition of "principal" in effect turns "a

principal" in the statute, id., into "the principal" and removes vagueness from "a

principal." See id. It also in effect means that organizations without "the principal"

purpose - as effectively defined - of accepting contributions or making expenditures

need not comply with political-committee or political-committee-like burdens under

Texas law. See id.

While this removes facial vagueness from "a principal" in the law, see id., it

does not resolve the facial-overbreadth of the law. See NCRL-III, 525 F.3d at 287-

90.21

Nor does it remove other vagueness. The general-purpose-political-

committee definition is vague because it refers to "supporting or opposing"

candidates or measures. TEX. ELEC. CODE 251.001(14); see WRTL-II, 551 U.S. at

2o See Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d 576, 584 (8th Cir.2013) ("IRLC-II') (quoting Colorado Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1152 (lOth Cir.2007) ("CRLC') (citing/quoting, in turn, MCFL, 479 U.S. at 252n.6, 262), followed in NMYO, 611 F.3d at 678), cert. denied, 572 U.S. __, 134 S.Ct. 1787 (2014).

21The panel holds the 30- and 60-day blackout periods are not at issue here. SECOND MEM. OP. at 28-29. Appellants seek no en-bane reconsideration on this point here.

Addressing Appellants' Eighth Amendment challenge, the panel holds Appellees are not entitled to seek criminal penalties. Id. at 30. Appellants seek no en-bane reconsideration on this point here.

28 493 (Scalia, J., concurring) (calling the appeal-to-vote test vague and saying it

"seem[s] tighter" than, inter alia, promote-support-attack-oppose in federal law);

Center for Individual Freedom v. Carmouche, 449 F.3d 655, 663-66 (5th Cir.2006)

(upholding "for the purpose of supporting, opposing, or otherwise influencing the

nomination or election of a person to public office" after holding it reaches only

BucJdey express advocacy), cert. denied, 549 U.S. 1112 (2007); NCRL-111, 525 F.3d

at 289, 301 (approving "support or oppose" when- after id. at 281-86- its reaches

only Buckley express advocacy); but see McConnell v. FEC, 540 U.S. 93, 170n.64

(2003) (rejecting a pre-Carmouche facial-challenge to promote-support-attack-

oppose in federal law), overruled on other grounds, Citizens United, 558 U.S. at 336-

66.

IV. Prayer

The court should grant en-bane reconsideration.

Respectfully submitted,

THE AKERS FIRM 3401 Allen Parkway, Suite 101 Houston, Texas 77019 Telephone (713) 877-2500 Facsimile 1(713) 583-8662

By: /s/ Brock C. Akers Brock C. Akers Texas State Bar No. 00953250

Attorneys for Counter-Plaintiffs and Appellants

29 Certificate of Compliance

I certify that this filing has 4500 words not counting the parts exempt from the word count. Cf TEX.R.APP.P. 9.4(i)(2)(D), 9.4(i)(3).

Is/ Randy Elf Randy Elf January 16, 2015

30 Certificate of Service

I hereby certify that a true copy of the foregoing document has been served upon all counsel of record and to court personnel via electronic filing and/or first- class mail on this 16th day of January 2015.

Chad W. Dunn General Counsel 4201 FM 1960 West, Suite 530 Houston, Texas 77068 Email: chad@brazilanddunn.com

K. Scott Brazil 4201 FM 1960 West, Suite 530 Houston, Texas 77068 Email: scott@brazilanddmm.com

Dicky Grigg Spivey & Grigg, LLP 48 East A venue Austin, Texas 78701 Email: dicky@grigg-law .com

Jeffrey D. Kyle, Clerk Third Court of Appeals 209 West 14111 Street, Room 101 Austin, Texas 78701

Is/ Brock C. Akers Brock C. Akers

31 Addendum

32 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-12-00255-CV

King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, Appellants

Texas Democratic Party; Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party; John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk; and Ann Bennett, in her Capacity as the Democratic Nominee for Harris County Clerk, 55th Judicial District, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. D-1-GN-11-002363, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

OPINION

We withdraw our opinion issued on October 8, 2014, and substitute this one in its

place. We overrule appellants' motion for rehearing.

This appeal is limited to facial challenges to the constitutionality of various Election

Code provisions. See Tex. Elec. Code§§ 251.001,253.003,253.031,253.037,253.091,253.094,

253.095,253.101,253.102,253.103,253.104,253.131,253.132, 273.081; Act of June 19, 1987,

70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3009 (former sections 253.062 and

253.097, repealed 2011 ). Facing cross-motions for summary judgment, the trial court ruled against

appellants King Street Patriots (KSP), Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs, 33 the parties facially challenging the constitutionality of the Election Code provisions. The trial court

concluded that it did not have jurisdiction to consider some of appellants' constitutional challenges

and, as to the remaining challenges, the trial court upheld the constitutionality of the Election Code

provisions at issue. For the reasons that follow, we affirm the trial court's judgment. 1

BACKGROUND

The Texas Democratic Party, Boyd Richie/ in his capacity as Chairman of the Texas

Democratic Party, John Warren, in his capacity as Democratic nominee for Dallas County Clerk, and

Ann Bennett, in her capacity as the Democratic nominee for Harris County Clerk, 55th Judicial

District (collectively "TDP"), brought suit against appellants seeking damages and injunctive relief

based upon alleged Election Code violations. See Tex. Elec. Code§§ 253.131,253.132,273.081.

Their allegations included that KSP made unlawful political contributions to the Texas Republican

Party and its candidates (collectively "TRP") with regard to the 2010 general election by training poll

watchers in coordination with the TRP and then offering the poll watchers' services only to the TRP.

TDP also alleged that, based upon its political activities, KSP was "a sham domestic nonprofit

corporation" and "an unregistered and illegal political committee." TDP asserted claims against KSP

1 To the extent appellants assert as-applied constitutional challenges in the severed suit, we express no opinion as to the merits of those challenges. See Combs v. STP Nuclear Operating Co., 239 S.W.3d 264, 272 (Tex. App.-Austin 2007, pet. denied) (noting that "party making an as-applied challenge need only show that the statute is unconstitutional because of the manner in which it was applied in a particular case" and that as-applied challenge is "fact specific"); see also Catholic Leadership Coal. ofTex. v. Reisman, 764 F.3d 409,426 (5th Cir. 2014) (noting that facial and as-applied challenges "have different substantive requirements" and comparing as-applied and facial constitutional challenges in context of challenges to Texas Election Code). 2 Gilberto Hinojosa replaced Boyd Richie as the Chairman of the Texas Democratic Party following Hinojosa's election at the Texas Democratic Party State Convention.

2 34 for Election Code violations based upon KSP's status as a political committee and its status as

a corporation.

Appellants answered and filed a counterclaim. They asserted that KSP was formed

as a non-profit Texas corporation on December 30, 2009, to "provide education and awareness" to

the "general public on important civic and patriotic duties." They stated that they "decided that a

good way to participate was to help ensure that elections are free and fair" and that they "assisted

anyone who was interested in this project in becoming a poll watcher." Their counterclaim sought

declaratory relief challenging the constitutionality ofElection Code provisions. Appellants claimed

that the Election Code provisions at issue violated the First, Fourth, Eighth, and/or Fourteenth

Amendments to the United States Constitution. See U.S. Const. amends. I, IV, VIII, XIV, § 1.

The parties entered into a rule 11 agreement to sever appellants' counterclaim

challenging the facial constitutionality ofthe Election Code provisions into a separate cause number

by agreed order and to abate the remaining claims until the new cause was resolved. Per that

agreement, the trial court severed KSP's counterclaim into this cause and realigned the parties. The

parties then filed cross-motions for summary judgment. See Tex. R. Civ. P. 166a.

In their motion for summary judgment, TDP urged that the applicable provisions of

the Election Code were facially constitutional. See Tex. Elec. Code§§ 251.001,253.031,253.094,

253.104, 253.131, 253.132,273.081. Among the grounds asserted to support summary judgment,

TD P argued that sections 251.001, 253.094, and 253.131 had already been determined constitutional.

To support this ground, TDP cited the opinions in Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App.

3 35 2010), Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000), and Castillo v. State, 59 S.W.3d 357 (Tex.

App.-Dallas 2001, pet. ref d).

Appellants countered in their motion for summary judgment that the applicable

Election Code provisions were facially unconstitutional. Among the grounds asserted to support

summary judgment in their favor, appellants urged that: (i) the sections creating private rights of

action for Election Code violations, see Tex. Elec. Code §§ 253.131, 253.132, 273.081, violated the

First, Fourth, and Fourteenth Amendments; (ii) the sections prohibiting corporate contributions and

expenditures, see id. §§ 253.091, .094, were unconstitutional under Citizens United v. Federal

Election Commission, 558 U.S. 310 (2010), and violated the First and Fourteenth Amendments;

(iii) the definitions of contributions and expenditures, see Tex. Elec. Code § 251.001 (2)-(1 0), were

unconstitutionally overbroad and vague; (iv) the definitions of political committees, see id.

§ 251.001 ( 12), ( 14), were unconstitutionally overbroad and vague and violated the First Amendment;

(v) the direct expenditure sections, see id. former§§ 253.062, .097, violated the First Amendment;

(vi) the sections with "thirty and sixty day blackout periods," see id. §§ 253.031(c), .037(a), violated

the First Amendment; and (vii) the sections providing criminal penalties, see id. §§ 253.003, .094,

.101, .102, .103, .104, violated the Eighth Amendment.

Appellants did not offer summary judgment evidence to support their motion. TDP's

evidence included affidavits, documents, and videos concerning KSP's recruitment and training of

poll watchers. 3 The parties also stipulated to the following facts:

3 TDP presented affidavits from the Chair ofthe Harris County Democratic Party, the Deputy Executive Director for the Texas Democratic Party, and Bennett. They testified regarding KSP's "assistance" and "support" ofthe TRP during the 2010 general election cycle and KSP' s poll watcher

4 36 a. King Street Patriots, during and in advance of the 2010 General Election for State and County Officers, conducted, at its own expense, a training and recruitment program for poll watchers. Many of these KSP located and trained poll watchers were subsequently appointed to serve under Texas Election Code §§ 32.002-.003 by the Harris County Republican Party Chairman and/or Republican Nominees with regard to the 2010 General Election for State and County Officers.

b. Plaintiffs, the Texas Democratic Party, Boyd Richie, John Warren, and Ann Bennett, using the private right of action found in Tex. Elec. Code §§ 273.081, 253.131, and 253.132, intend to enforce Texas Election Code sections 251.001(2), (3), (4), (5), (6), (7), (8), (9), (10), (12), (14), 253.031(c), 253.037(a)(1) and (b), 253.062, 253.094, 253.097, and 253.104 against Defendants-Counterclaimants, King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, based on alleged political speech the Defendants-Counterclaimants have engaged in, and intend to continue to engage in, in the future.

The trial court granted summary judgment against appellants and in favor ofTDP. The

trial court declared that Election Code sections 251.001(2), (3), (5), (6), (7), (8), (10), (12), and (14),

253:031,253.037,253.094,253.104,253.131,253.132, and273.081 andformersections253.062 and

253.097 were facially constitutional. The trial court also concluded that it did not have jurisdiction

to grant declaratory relief with respect to sections 251.001 (4) and (9), the officeholder definitions,

sections 253.031(c) and 253.037(a), the "blackout" periods, and the criminal penalties contained in

program. The Chair of the Harris County Democratic Party testified:

The poll watchers recruited and trained by KSP for service in Harris County were all appointed by Republican nominees or the Harris County Republican Party. The KSP never offered to provide poll watchers for or on behalf of the Harris County Democratic Party. I attended at least one meeting at the Harris County Attorney General's Office at which the representative of the Harris County Republican Party discussed and acknowledged the coordinated efforts between the KSP and the Harris County Republican Party in connection with training and assigning poll watchers.

5 37 sections 253.094(c), 253.003(e), 253.101,253.102,253.103, and 253.104. The trial court concluded

that it did not have jurisdiction with respect to those provisions because they were not at issue in the

case. This appeal followed.

ANALYSIS

Appellants bring six issues on appeal, primarily tracking the grounds raised in their

motion for summary judgment. Appellants challenge the constitutionality of the sections of the

Election Code that create a private right of action, the sections that allegedly "ban" corporate

contributions and expenditures, the section defining various terms, the sections allegedly creating

"blackout" periods, and the sections containing criminal penalties for violations ofthe Election Code.

Appellants contend that the trial court erred by concluding that it did not have jurisdiction with

respect to some of these challenged Election Code provisions and that it erred by declaring the

remaining Election Code provisions facially constitutional.

Standards of Review

We review a trial court's summary judgment rulings de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for summary

judgment, the movant must show that there are no genuine issues of material fact and that it is entitled

to judgment as amatteroflaw. Tex. R. Civ. P. 166a(c); Provident Life &Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215-16 (Tex. 2003). When, as is the case here, both parties move for summary

judgment and the trial court grants one motion and denies the other, we review the

summary-judgment evidence presented by both sides, determine all questions presented, and render

6 38 the judgment the trial court should have rendered. Texas Workers' Camp. Comm 'n v. Patient

Advocates ofTex., 136 S.W.3d 643, 648 (Tex. 2004).

We also review matters of statutory construction de novo. See Texas Mun. Power

Agency v. Public Uti/. Comm 'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Of primary concern in

construing a statute is the express statutory language. See Galbraith Eng 'g Consultants, Inc.

v. Pochucha, 290 S.W.3d 863,867 (Tex. 2009); Osterberg, 12 S.W.3d at 38. "We thus construe the

text according to its plain and common meaning unless a contrary intention is apparent from the

context or unless such a construction leads to absurd results." Presidio Indep. Sch. Dist. v. Scott,

309 S.W.3d 927,930 (Tex. 2010) (citing City ofRockwall v. Hughes, 246 S.W.3d 621,625-26 (Tex.

2008)). We consider the entire act, not isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392,396

(Tex. 2008).

We also interpret statutes, if possible, in a way that makes them constitutional. See

City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009). "A statute is presumptively

constitutional." Brooks v. Northglen Ass 'n, 141 S.W.3d 158, 170 (Tex. 2004) (citing Barshop

v. Medina Cnty. Underground Water Conservation Dist., 925 S.W .2d 618,625 (Tex. 1996)); see also

Tex. Gov't Code§ 311.021(1).

Declarations Addressing Constitutionality of Statutes

Declaratory relief is available to resolve constitutional challenges to statutes. See Tex.

Civ. Prac. & Rem. Code§§ 37.001-.011 ("UDJA"). The separation of powers article of the Texas

Constitution, however, prohibits courts from issuing advisory opinions. Tex. Const. art. II, § 1; see

Brown v. Todd, 53 S. W .3d 297, 302 (Tex. 2001) (advisory opinion decides "abstract questions oflaw

7 39 without binding the parties"). An advisory opinion addresses a "theoretical dispute," a dispute that

does not involve "a real and substantial controversy involving a genuine conflict of tangible interests."

Texas Health Careirifo. Councilv. Seton Health Plan, Inc., 94 S.W.3d 841,846 (Tex. App.-Austin

2002, pet. denied). Accordingly, the UDJA has been interpreted "to be merely a procedural device

for deciding cases already within a court's jurisdiction rather than a legislative enlargement of a

court's power, permitting the rendition of advisory opinions." Texas Ass 'n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see also Texas Health Care Info. Council, 94 S.W.3d

at 846 ("A declaratory judgment action does not vest a court with the power to pass upon hypothetical

or contingent situations, or to determine questions not then essential to the decision of an actual

controversy, although such questions may in the future require adjudication."). As such, a party

seeking declaratory relief must show that a requested declaration will resolve a live controversy

between the parties. See Texas Health Care Info. Council, 94 S.W.3d at 846.

The constitutional challenges at issue here are limited to facial challenges. To sustain

a facial challenge, a party generally '"must establish that the statute, by its terms, always operates

unconstitutionally.'" City ofCorpus Christi v. Public Uti!. Comm 'n ofTex., 51 S.W .3d 231, 240-41

(Tex. 2001) (citing Bars hop, 925 S.W.2d at 627 (citing Texas Workers' Comp. Comm 'n v. Garcia,

893 S.W.2d 504,518 (Tex. 1995))); see Combs v. STP Nuclear Operating Co., 239 S.W.3d 264,272

(Tex. App.-Austin 2007, pet. denied) (comparing facial and as-applied constitutional challenges and

noting that "[a] party seeking to invalidate a statute 'on its face' bears a heavy burden of showing that

the statute is unconstitutional in all of its applications").

8 40 Among their constitutional challenges, appellants claim that the Election Code

provisions at issue violate their free speech and associational rights under the First and Fourteenth

Amendments. See U.S. Const. amends. I, XIV,§ 1. In a facial challenge to a statute based on the

First Amendment, even if the challenged statute is constitutional in some of its applications, a

plaintiff may prevail by establishing "'that the statute lacks any plainly legitimate sweep."' Catholic

Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir. 2014) (quoting United States

v. Stevens, 559 U.S. 460,472 (2010) (internal quotation marks and citation omitted)). "Plaintiffs may

also invalidate a statute as overbroad if they demonstrate that 'a substantial number of [the law's]

applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" Id.

(quoting Stevens, 559 U.S. at 473 (internal citations omitted)).

The United States Supreme Court has stated the importance ofFirstAmendmentrights

in the electoral context on many occasions. In Citizens United, the Supreme Court explained:

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment "'has its fullest and most urgent application' to speech uttered during a campaign for political office." ... For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence.

558 U.S. at 339-40 (internal citations omitted).

The Supreme Court, however, has applied differing standards in the electoral context

depending on whether the statute at issue addresses political expenditures, contributions, or disclosure

requirements. For example, when reviewing statutes governing corporate contributions and

9 41 disclosure requirements, the Supreme Court has articulated the test as whether the statute is closely

drawn to match a sufficiently important governmental interest. See Doe v. Reed, 561 U.S. 186, 196

(20 10) (noting that "exacting scrutiny" review applies when considering First Amendment challenges

to disclosure requirements in the electoral context); Citizens United, 558 U.S. at 366-67 (noting that

disclosure requirements are subject to "'exacting scrutiny,' which requires a 'substantial relation'

between the disclosure requirement and a 'sufficiently important' governmental interest" (quoting

Buckley v. Valeo, 424 U.S. 1, 64,66 (1976))); Federal Election Comm 'n v. Beaumont, 539 U.S. 146,

161 (2003) (noting that challenges to limits on corporate contributions pass constitutional muster if

"'closely drawn' to match a 'sufficiently important interest"' (citation omitted)).

In contrast, when reviewing statutes governing corporate independent expenditures

in the electoral context, the Supreme Court used a strict-scrutiny review. See Citizens United,

558 U.S. at 340 ("Laws that burden political speech are 'subject to strict scrutiny."'). Strict-scrutiny

review "requires the Government to prove that the restriction 'furthers a compelling interest and is

narrowly tailored to achieve that interest."' !d. (quoting Federal Election Comm 'n v. Wisconsin

Right to Life, Inc., 551 U.S. 449, 464 (2007)); Buckley, 424 U.S. at 39 (noting that restrictions on

political expenditures "limit political expression 'at the core of our electoral process and ofthe First

Amendment freedoms"' (quoting Williams v. Rhodes, 393 U.S. 23, 32 ( 1968))); see also McCutcheon

v. Federal Election Comm 'n, 134 S.Ct. 1434, 1444--45 (2014) (plurality op.) (declining to revisit

distinction in Buckley between contributions and expenditures and corollary distinction in applicable

standards of review). Within this framework, we tum to appellants' issues.

10 42 Private Right of Action

In their first issue, appellants challenge the constitutionality of the sections creating

a private right of action for Election Code violations. See Tex. Elec. Code §§ 253.131, 253.132,

273.081. Appellants contend that these provisions on their face violate the First Amendment, the

Fourth Amendment, and the Due Process Clause of the Fourteenth Amendment. See U.S. Const.

amends. I, IV, XIV, § 1. They assert that the provisions infringe upon speech and associational rights:

that they "lack guidelines regarding what showing is necessary to initiate an investigation," "lack

sufficient standards to protect discovery abuse," and have "enormous potential for abuse." They also

urge that the injunction section, section 273.081, is an improper prior restraint on speech.

a) Sections 253.131 and 253.132

Section 253.131 creates a private right of action for opposing candidates, and section

253.132 creates a private right of action for political committees, to bring actions against a

corporation or labor organization to recover statutory damages for violations of the Election Code.

See Tex. Elec. Code§§ 253.131, .132. Sections 253.131 and 253.132 state:

§ 253.131. Liability to Candidates

(a) A person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation of this chapter is liable for damages as provided by this section.

(b) If the contribution or expenditure is in support of a candidate, each opposing candidate whose name appears on the ballot is entitled to recover damages under this section.

(c) Ifthe contribution or expenditure is in opposition to a candidate, the candidate is entitled to recover damages under this section.

11 43 (d) In this section, "damages" means:

( 1) twice the value of the unlawful contribution or expenditure; and

(2) reasonable attorney's fees incurred in the suit.

(e) Reasonable attorney's fees incurred in the suit may be awarded to the defendant if judgment is rendered in the defendant's favor.

§ 253.132. Liability to Political Committees

(a) A corporation or labor organization that knowingly makes a campaign contribution to a political committee or a direct campaign expenditure in violation of Subchapter Dis liable for damages as provided by this section to each political committee of opposing interest in the election in connection with which the contribution or expenditure is made.

(b) In this section, "damages" means:

(1) twice the value of the unlawful contribution or expenditure; and

(c) Reasonable attorney's fees incurred in the suit may be awarded to the defendant if judgment is rendered in the defendant's favor.

!d.§§ 253.131, .132. Appellants focus on the lack of standards within the private-right-of-action

sections regarding what showing is necessary to initiate investigation or discovery and what is

discoverable, arguing that discoverable evidence must satisfy a heightened showing of relevance in

the context of the First Amendment.

The trial court upheld the constitutionality ofthese sections based in part on the Texas

Supreme Court's opinion in Osterberg. In that opinion, the Texas Supreme Court faced a

constitutional challenge to section 253.131 based on the First Amendment's free speech and

associational rights. 12 S.W.3d at 48. The supreme court held that the private right of action created

12 44 in section 253.131 was constitutional, reasoning that private enforcement advanced a "sufficient

state interest":

Section 253.131 is designed to "deter violators and encourage enforcement by candidates and others directly participating in the process, rather than placing the entire enforcement burden on the government." . . . Because state resources for policing election laws are necessarily limited, in many cases section 253.131 is likely to provide the only viable means of enforcing reporting requirements. Preventing evasion of these important campaign finance provisions is a legitimate and substantial state interest. . . . Furthermore, that the person enforcing the law and receiving damages can be a private party rather than the State does not mean that section 253.131 adds additional restrictions on First Amendment rights.

!d. at 49 (internal citations omitted). Although the court did not address section 253.132, the rationale

for concluding that section 253.131 does not violate First Amendment rights applies equally to

section 253.132.

Appellants urge that Osterberg does not control here. They distinguish the issue

before this Court from the one addressed in Osterberg because, in that case, the challenge concerned

who could recover damages and only one opposing candidate brought the suit. Appellants argue that

the issue here is different because their focus is on the language in sections 253.131 and 253.132 that

allows multiple parties to seek damages for the same Election Code violation. For example, they urge

that multiple candidates may sue and recover damages when the challenged speech is about issues.

However, the dispute here concerns alleged improper contributions by KSP to the TRP and its

candidates, not issue advocacy by KSP. Declaratory relief is only available if the declaration will

resolve a live controversy that binds the parties, Texas Ass 'n of Bus., 852 S.W.2d at 444, therefore,

we decline to consider appellants' constitutional challenge based upon speech concerning issues.

13 45 Further, whether the statute is unconstitutional as-applied to a particular circumstance, such as

multiple candidates suing to recover damages for the same speech about issues, is not the dispositive

question before us, given that appellants' facial challenge requires them to prove the statute is

unconstitutional in all circumstances or, in the First Amendment context, "that the statute lacks any

plainly legitimate sweep." See Reisman, 764 F.3d at 426.

Appellants urge that the private-right-of-action sections do not provide necessary

safeguards to avoid chilling the First Amendment fundamental right of privacy in association,

"particularly where one must divulge such information to political opponents." In the context of

as-applied challenges, courts have found that the constitution provides protection from disclosure of

a person's identity in the context of associational rights if there is a "reasonable probability" that the

disclosure will subject the person to "threats, harassment, or reprisals from either Government

officials or private parties." Citizens United, 558 U.S. at 367; Buckley, 424 U.S. at74;Jn reBayArea

Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 376, 380-82 (Tex. 1998) (orig. proceeding). But

appellants only bring a facial challenge to the statutes at issue. See Citizens United, 558 U.S. at 367

(acknowledging as-applied challenge may be available based upon showing that there was reasonable

probability that disclosure would subject persons to threats, harassment, orreprisals). Appellants also

did not offer summary judgment evidence that would support a finding that there is a "reasonable

probability" that disclosure via discovery would subject them to "threats, harassment, or reprisals."

See id. As such, precedent does not support appellants' argument that subjecting a person to suit and

discovery under the Election Code facially violates First Amendment associational rights.

14 46 Appellants' arguments also focus on the lack of standards for discovery and initiating

a suit within the private-right-of-action provisions to support their position that the provisions violate

the Due Process Clause and the Fourth Amendment. See U.S. Canst. amends. IV, XIV,§ 1. They

urge that the private-right-of-action provisions violate the Fourth Amendment because they do not

require a showing of probable cause prior to allowing discovery. They contend that discovery

initiated by a person acting under color of state law is a Fourth Amendment search and, therefore, that

probable cause is required. Otherwise, they urge, the government could circumvent probable cause

requirements by awaiting discovery in a civil proceeding. As to the Due Process Clause, appellants

urge that the sections fail to provide the necessary "procedural safeguards" to prevent '"unbridled

discretion' via discovery to seize constitutionally protected documents and communications, even if

the private enforcers lose on their claims."

The Due Process guarantees, however, only provide protection against state action.

See Tulsa Prof'! Collection Servs., Inc. v. Pope, 485 U.S. 478,485 (1988); Jackson v. Metropolitan

Edison Co., 419 U.S. 345,349 (1974);Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (noting that since

1883, "principle has become firmly embedded in our constitutional law that the action inhibited by

the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of

the States" and that the Fourteenth Amendment "erects no shield against merely private conduct,

however discriminatory or wrong"). 4 Similarly, the Fourth Amendment protections generally only

4 We also are not persuaded by the cases cited by appellants to support their position that the private-right-of-action provisions violate the Due Process Clause. Unlike the statutes at issue here, those cases involved laws that delegated legislative power to private citizens. See, e.g., Eubank v. City ofRichmond, 226 U.S. 137, 141-44 (1912); General Elec. Co. v. New YorkDep 'tofLabor, 936 F.2d 1448, 1454-55 (2d Cir. 1991) (collecting similar cases). For example, an ordinance

15 47 apply to state action. Skinner v. Railway Labor Executives' Ass 'n, 489 U.S. 602, 614 (1989).

Although the Fourth Amendment provides protection against a search or seizure by a private party

if the private party is acting as an instrument or agent of the government, there was no evidence that

TDP was acting as an agent or instrument of the government here, see id., and, even if there were such

evidence, that would not satisfy appellants' burden to show that the statute is facially unconstitutional.

See City of Corpus Christi, 51 S.W.3d at 240-41.

In any case, a private suit brought under the Election Code has procedural safeguards

in place to protect defendants from unnecessary or overly intrusive discovery. Such suits are subject

to the laws that apply to civil suits generally, such as the Texas Rules of Civil Procedure and the

Texas Rules ofEvidence. The Texas Rules of Civil Procedure provide guidelines for discovery and

allow trial courts to limit discovery to protect confidential information. See Tex. R. Civ. P. 192.6.

The rules, as well as statutes, also allow trial courts to award sanctions for discovery abuse and

remedies for frivolous suits. See, e.g., Tex. Civ. Prac. & Rem. Code§§ 10.001-.006; Tex. R. Civ.

P. 13,215. And sections 253.131 and 253.132 allow the recovery of attorney's fees for a successful

defendant. See Tex. Elec. Code§§ 253.131(e), .132(c).

We conclude that the trial court did not err by granting summary judgment in

favor of TDP with respect to sections 253.131 and 253.132 and by declaring those sections

facially constitutional.

allowing boundaries to be fixed by a vote of two thirds of a particular group of property owners was found to be unconstitutional because it allowed a majority of private citizens to determine the rights of the minority without fixing a standard under which the decision was made. Eubank, 226 U.S. at 141-44.

16 48 b) Section 273.081

Section 273.081 states that "[a] person who is being harmed or is in danger ofbeing

harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief

to prevent the violation from continuing or occurring." I d. § 273.081. Appellants argue that section

273.081 is "a prior restraint" on speech. See Alexander v. United States, 509 U.S. 544, 550 (1993);

Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W .3d 387,393 (Tex. App.-Austin 2000, no pet.).

"A prior restraint is an administrative or judicial order forbidding certain communications when

issued in advance of the time that such communications are to occur." Minton, 33 S.W.3d at 393.

Appellants also argue that the section fails strict-scrutiny review and that it is not narrowly tailored

to an important governmental interest. Appellants focus on the language in section 273.081 that

allows injunctive relief to a "person," not just a political opponent, based upon "threatened" harm.

Appellants argue that no compelling interest justifies enjoining political speech.

The plain language of section 273.081, however, does not support appellants' assertion

that the section on its face violates the prohibition on prior restraints. See Scott, 309 S.W.3d at 930.

The section applies to the entire Election Code, allowing injunctions in many different contexts. See

Tex. Elec. Code § 273.081; In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002) (orig. proceeding)

(discussing injunctive relief provided by section 273.081 in context of violation of section 141.032

by party chair); Cookv. Tom Brown Ministries, No. 08-11-00367-CV, 2012 Tex. App. LEXIS 1318,

at *43-45 (Tex. App.-El Paso Feb. 17,2012, pet. denied) (mem. op.) (reversing trial court's denial

of injunctive relief for Election Code violation and ordering city clerk to decertify and return recall

petitions); Ramirez v. Quintanilla, Nos. 13-10-00449-CV, 13-10-00450-CV, 13-10-00454-CV,

17 49 2010 Tex. App. LEXIS 6861, at *43-44 (Tex. App.-Corpus Christi Aug. 20, 2010, pet. denied)

(mem. op.) (affirming temporary injunction enjoining special election). The section also limits the

scope of injunctive reliefto "appropriate injunctive relief." Tex. Elec. Code§ 273.081. And an order

granting a temporary injunction is subject to interlocutory appeal. See Tex. Civ. Prac. & Rem. Code

§ 51.014(4). Given the scope and limits of the injunctive relief available under section 273.081, we

conclude that this section is not facially unconstitutional or a "prior restraint" on speech. See Minton,

33 S.W.3d at 393.

We conclude that the trial court did not err by granting summary judgment in favor

of TDP with respect to section 273.081 and by declaring the section facially constitutional. We

overrule appellants' first issue.

Corporate Contributions and Expenditures

In their second issue, appellants argue that sections 253.091 and 253.094 are

unconstitutional because they "ban" corporate contributions and expenditures. See Tex. Elec. Code

§§ 253.091, .094. They argue that the corporate "ban" on contributions and expenditures fails

strict-scrutiny review under Citizens United. As part of this issue, appellants also argue that the

restrictions are content based and violate the equal protection clause and that speech restrictions that

differentiate among speakers are subject to strict scrutiny. Content-based restrictions have been held

to raise equal protection concerns "because, in the course of regulating speech, such restrictions

differentiate between types of speech." Burson v. Freeman, 504 U.S. 191, 197 n.3 (1992). "Under

either a free speech or equal protection theory, a content based regulation of political speech in a

public forum is valid only if it can survive strict scrutiny." Id.

18 50 Section 253.091 sets forth the types of entities that are subject to subchapter D, the

subchapter addressing corporations and labor organizations. Tex. Elec. Code § 253.091. The section

includes non-profit corporations-such as KSP-as entities subject to subchapter D. See id. Prior

to its amendment in 2011, section 253.094(a) limited corporate political contributions and

expenditures to those expressly allowed in the subchapter. See Act of June 19, 1987, 1987 Tex. Gen.

Laws at 3009. In 2011, section 253.094(a) was amended to delete corporate political expenditures.

It now reads:

A corporation or labor organization may not make a political contribution that is not authorized by this subchapter.

Tex. Elec. Code§ 253.094(a). Section 253.094 was amended after the Citizens United opinion in

which the Supreme Court held that the government may not prohibit corporate independent political

expenditures. 558 U.S. at 365. 5

At this stage of the parties' dispute, TOP's claim as to section 253.094 is not based

on alleged political expenditures by KSP, but alleged contributions made by KSP. 6 As to the

contribution limitations that section 253.094 places on the entities specified in section 253.091,

appellants ask this Court to expand the holding in Citizens United. We decline to do so. The

5 We disagree with appellants' contention that the trial court failed to address the expenditure component of former section 253.094. In the final summary judgment, the trial court expressly referenced the 2011 amendment to section 253.094 that removed expenditures. 6 TDP's counsel confirmed at oral argument that TDP's claim for statutory damages based upon a violation of section 253.094 was limited to alleged political contributions made by KSP. See Tex. Elec. Code § 253.094. Their fourth amended original petition conforms with counsel's statements at oral argument.

19 51 Supreme Court in Citizens United continued to distinguish between expenditures and contributions

and expressly stated that it was not reconsidering corporate contribution limits. 558 U.S. at 358-60;

see McCutcheon, 134 S.Ct. at 1444-45 (discussing Buckley and reasons for distinguishing between

political expenditures and contributions in context of First Amendment). Further, we are guided by

the Supreme Court's analysis in Beaumont and the Texas Court of Criminal Appeals' analysis in

Ex parte Ellis. In Beaumont, the Supreme Court rejected an as-applied challenge to corporate

contribution limitations. 539 U.S. at 163. Upholding the constitutionality of the corporate

contribution regulation at issue, the Supreme Court found that the regulation served compelling

governmental interests, preventing "war chest" corruption and serving to prevent individuals from

using the corporate form to circumvent contribution limits. !d. at 154-55. The Texas Court of

Criminal Appeals in Ex parte Ellis concluded that the opinion in Citizens United did not have any

effect on its jurisprudence relating to corporate contributions and upheld section 253.094 as facially

constitutional, guided in part by the Beaumont opinion. 309 S.W.3d at 83-85, 92.

Appellants also urge that section 253.094 violates the equal protection clause because

it bans contributions by corporations but not labor unions. But, as previously stated, section 253.094

also applies to labor organizations. See Tex. Elec. Code § 253.094. Guided by the directives in

Beaumont and Ex parte Ellis, we conclude that the trial court did not err by granting summary

judgment in favor of TDP with respect to appellants' constitutional challenges to the corporate

contribution limitations and by declaring section 253.094 facially constitutional. We overrule

appellants' second issue.

20 52 Contribution and Expenditure Definitions

In their third issue, appellants argue that the definitions of contribution, campaign

contribution, officeholder contribution, political contribution, expenditure, campaign expenditure,

direct campaign expenditure, officeholder expenditure, and political expenditure are

unconstitutionally vague. See Tex. Elec. Code§ 251.001(2)-(10).

A law is unconstitutionally vague if it fails to give those affected by it a reasonable

opportunity to know what is required or when it is so indefinite that any enforcement is necessarily

arbitrary or discriminatory. City of Chicago v. Morales, 527 U.S. 41, 52 (1999); Commission for

Lawyer Discipline v. Benton, 980 S.W.2d 425, 437-38 (Tex. 1998). In the context of statutes that

impose criminal penalties and impact First Amendment interests, "[c]lose examination of the

specificity of [a] statutory limitation is required." Buckley, 424 U.S. at 40-41. "In such

circumstances, vague laws may not only 'trap the innocent by not providing fair warning' or foster

'arbitrary and discriminatory application' but also operate to inhibit protected expression by inducing

'citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were

clearly marked.'" !d. at 41 n.48 (internal citation omitted). "Because First Amendment freedoms

need breathing space to survive, government may regulate in the area only with narrow specificity."

National Ass 'nfor Advancement of Colored People v. Button, 371 U.S. 415,433 (1963).

Appellants focus on the words "direct" and "indirect" and the phrase "any other thing

of value" in the definitions of contribution and the phrase "any other thing of value" in the definitions

of expenditure to support their position that the general definitions are unconstitutionally vague. See

Tex. Elec. Code § 251.001(2), (6). For purposes of this appeal, the Election Code defines a

21 53 contribution to mean "a direct or indirect transfer of money, goods, services, or any other thing of

value" and an expenditure to mean "a payment of money or any other thing of value." Id.

§ 251.001 (2), (6). Appellants also raise additional concerns with the definitions of the different types

of contributions and expenditures. Focusing on the phrases "contribution," "political committee,"

"the intent," and "in connection with ... a measure," they contend that the definition of campaign

contribution is circular and vague. Section 251.001 (3) defines a "campaign contribution" to mean

"a contribution to a candidate or political committee that is offered or given with the intent that it be

used in connection with a campaign for elective office or on a measure." See id. § 251.001(3).

Appellants argue that "in connection with a campaign . . . on a measure" cannot be construed to

exclude "general issue advocacy'' and, therefore, is vague and unconstitutional.

Appellants make similar arguments as to the definition of an officeholder contribution.

Section 251.001 (4) defines an "officeholder contribution" to mean a "contribution to an officeholder

or political committee that is offered or given with the intent that it be used to defray expenses that:

(A) are incurred by the officeholder in performing a duty or engaging in an activity in connection with

the office; and (B) are not reimbursable with public money." See id. § 251.001 (4 ). Appellants make

the same argument and address intent, as well as contending that the words "defray" and "in

connection with" are vague. Finally, because a "political contribution" is defined as a "campaign

contribution" or an "officeholder contribution," appellants urge that this definition is also vague for

the reasons stated above. See id. § 251.001(5).

Turning to the definitions of different types of expenditures, the Election Code defines

a "campaign expenditure" to mean "an expenditure made by any person in connection with a

22 54 campaign for an elective office or on a measure. Whether an expenditure is made before, during, or

after an election does not affect its status as a campaign expenditure." !d.§ 251.001(7). "A 'direct

campaign expenditure' means a campaign expenditure that does not constitute a campaign

contribution by the person making the expenditure." !d. § 251.001 (8). Appellants contend that the

words "in connection with" are vague when considering their impact on political speech about a

measure, especially because the definition includes political speech after an election. Appellants

further urge that the definitions include "general issue advocacy" and, therefore, are unconstitutional.

Appellants make the same vagueness argument as to the definition of "officeholder expenditure" as

they make as to the definition of"officeholder contribution." See id. § 251.001(9). The definition

of officeholder expenditure also includes the word "defray'' and the phrase "in connection with."

Finally, appellants urge that the definition of political expenditure is vague because it uses the terms

"campaign expenditure" and "officeholder expenditure." See id. § 251.001(10).

As an initial matter, the trial court concluded that it did not have jurisdiction to

consider the challenged officeholder definitions. See id. § 251.001(4), (9). We agree. Because the

officeholder definitions were not at issue between these parties, any declaratory relief as to their

constitutionality would be advisory. See Todd, 53 S.W.3d at 302 (noting that courts do not have

jurisdiction to render advisory opinions). For the same reason, we decline to address appellants'

arguments addressing the word "measure" in the various definitions. See id. The parties' dispute

concerns KSP's activities in connection with campaigns for elective office, not their activities in

connection with a measure. See id.

23 55 Appellants' remaining arguments challenging the definitions are controlled by the

analysis and reasoning in Ex parte Ellis. In the context of alleged improper corporate contributions

and a criminal prosecution, the Texas Court of Criminal Appeals considered vagueness and

overbreadth challenges to the contribution definitions and found the definitions to be facially

constitutional. See 309 S.W.3d at 82-92. The Ellis court found that the definitions were "sufficiently

clear to afford a person of ordinary intelligence a reasonable opportunity to know what [was]

prohibited" and that the definitions provided appropriate guidelines for enforcement. !d. Although

the Ellis court did not address the expenditure definitions, the same rationale for concluding that the

contribution definitions are facially constitutional applies to the expenditure definitions. Following

the Ellis court's analysis, we conclude that appellants failed to establish that the definitions at issue

are facially unconstitutional and that the trial court did not err in its summary judgment rulings as to

these definitions. We overrule appellants' third issue. 7

7 On rehearing, appellants focus on the overbreadth doctrine. To the extent appellants challenge the definitions based upon this doctrine, we also reject that challenge. "An overbroad statute 'sweeps within its scope a wide range of both protected and non-protected expressive activity."' Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425,435 (Tex. 1998) (citation omitted). "To vindicate First Amendment interests and prevent a chilling effect on the exercise of First Amendment freedoms, the overbreadth doctrine allows a statute to be invalidated on its face even if it has legitimate application, and even if the parties before the court have suffered no constitutional violation." Ex parte Ellis, 309 S.W.3d 71, 90-91 (Tex. Crim. App. 2010) (citing Broadrickv. Oklahoma, 413 U.S. 601,612 (1973)). "The overbreadth doctrine is 'strong medicine' that should be employed 'sparingly' and 'only as a last resort."' !d. (quoting Broadrick, 413 U.S. at 613). "'[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."' !d. (quoting Broadrick, 413 U.S. at 615). "Only if the statute 'reaches a substantial amount of constitutionally protected conduct' may it be struck down for overbreadth." Benton, 980 S.W.2d at 436 (quoting City ofHouston v. Hill, 482 U.S. 451, 458 (1987)). On this record, we decline to strike down the challenged definitions as facially unconstitutional based on the overbreadth doctrine. See id.; see also Clements v. Fashing, 457 U.S. 957, 972 n.6 ( 1982) (overbreadth exception to traditional requirement of standing may not

24 56 Political Committee Definitions

In their fourth issue, appellants contend that the definitions of political committee,

specific-purpose committee, general-purpose committee, and the now-repealed direct expenditure

sections are facially unconstitutional because they violate the First Amendment and are

unconstitutionally vague. See Tex. Elec. Code§§ 251.001(12), (13), (14), 253.062, 253.097; Act of

June 19, 1987, 1987 Tex. Gen. Laws at 3009.

a) Political Committee Definitions

The Election Code defines a political committee to mean "a group of persons that has

as a principal purpose accepting political contributions or making political expenditures." Tex. Elec.

Code § 251.001(12). A specific-purpose political committee supports or opposes identified

candidates or measures, id. § 251.001 (13), and a general-purpose political committee "has among its

principal purposes . . . supporting or opposing" two or more unidentified candidates or one or more

unidentified measures or "assisting two or more officeholders who are unidentified." !d.

§ 251.00 1( 14). Appellants focus on the phrases "supporting or opposing" and "assisting two or more

officeholders" and the inclusion of "unidentified" measures, candidates, and officeholders and

"unknown" offices in the general-purpose committee definition. See id.

Appellants argue that strict scrutiny applies, but that, even if exacting scrutiny applies,

the statutes are facially unconstitutional. Appellants focus on the analysis by the Supreme Court in

Citizens United and Buckley concerning regulation of political committees. The Supreme Court in

apply where First Amendment rights may be litigated on a case by case basis).

25 57 Citizens United observed that political committee status is "burdensome," "onerous," "expensive to

administer and subject to extensive regulation." See 558 U.S. at 337. In Buckley, the Supreme Court

construed the federal definition of"political committee" to encompass only organizations "under the

control of a candidate[s]"or organizations with the "major purpose" to nominate or elect candidates.

424 U.S. at 79; see Federal Election Comm 'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,

253 n.6 (1986).

Appellants argue that because the definitions of political committee in the Election

Code do not have a "major purpose" or "under the control of a candidate" test that they are facially

unconstitutional. Appellants urge that allowing an organization to speak only if it becomes a political

committee equates with banning the organization's speech when the organization decides that the

speech is "simply not worth it." See Massachusetts Citizens for Life, Inc., 479 U.S. at 255. They also

urge that the political committee definitions are unconstitutional because they have a zero-dollar

threshold and that they are unconstitutionally vague because "[a] speaker cannot know when it has

this 'principal purpose."' They urge that the definitions do not provide fair warning and subject

speakers to "arbitrary and discriminatory application," thereby chilling speech. See Buckley, 424 U.S.

at 41 n.48.

Mindful that appellants' challenge to the definitions is a facial challenge, we cannot

conclude that these definitions violate the First Amendment, that they are unconstitutionally vague,

or that they lack any plainly legitimate sweep. See Morales, 527 U.S. at 52; Reisman, 764 F.3d at

426; compare Massachusetts Citizens for Life, Inc., 479 U.S. at 263-65 (holding that federal statute

prohibiting corporate expenditures "as applied" to newsletter by nonprofit, nonstock corporation

26 58 formed to promote "pro life" causes was unconstitutional as a violation of First Amendment). The

plain language of section 251.001 (12) limits "political committee" status to groups with "a principal

purpose of accepting political contributions or making political expenditures." The Election Code

does not define the words "principal purpose" so we apply their common meaning. "Purpose" means

"[t]he object toward which one strives or for which something exists; goal; aim." American Heritage

Dictionmy ofthe English Language 1062 (1973 ). "Principal" means"[ f]irst, highest, or foremost in

importance, rank, worth, or degree; chief." Id. at 1041. Applying the phrase's common meaning

limits the reach of the definition, and the definition also expressly encompasses the definitions of

political contributions and expenditures, further defining and narrowing the classification. See Tex.

Elec. Code § 251.001(5), (10). The definitions of specific-purpose and general-purpose also

distinguish between and narrow the different types of political committees on the basis of whether

the measure or candidates at issue are identified and known or unidentified and unknown.

Viewing the definitions as a whole and in context with each other, they are

"sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what

[was] prohibited" and provide appropriate guidelines for enforcement. See Ex parte Ellis,

309 S.W.3d at 82-92; see also Buckley, 424 U.S. at 41 n.48; Parker, 249 S.W.3d at 396. We

therefore conclude that the challenged definitions are not unconstitutionally vague or facially

unconstitutional under the First Amendment.

b) Former Sections Addressing Direct Expenditures

As part of their fourth issue, appellants argue that the direct expenditure requirements

contained in former sections 253.062 and 253.097 are unconstitutional because they force political

27 59 committee burdens on individuals. See ActofJune 19, 1987, 1987 Tex. Gen. Laws at 3009. Former

section 253.062 required an individual to comply with reporting requirements when the individual

made a direct campaign expenditure exceeding $100, and former section 253.097 required a

corporation or labor organization to comply with former section 253.062 as an individual when the

corporation or labor organization made direct expenditures in connection with an election on a

measure. See id. As previously stated above, the parties' dispute concerns KSP's activities in

connection with campaigns for elective office, not its activities in connection with a measure, and

TDP's claim concerns alleged contributions by KSP, not expenditures. See id. We therefore decline

to address appellants' arguments addressing these two sections. See Todd, 53 S.W.3d at 302. We

overrule appellants' fourth issue.

30 and 60 day periods

In their fifth issue, appellants argue that the 30 and 60 day "blackout" periods in

sections 253.031 and 253.037 are unconstitutional. See Tex. Elec. Code§§ 253.031(c), .037(a).

Section 253.031(c) prohibits a political committee from making a campaign contribution or

expenditure supporting or opposing specified candidates unless its campaign treasurer appointment

has been on file for at least 30 days. Id. § 253.031(c). Section253.037(a) prohibits a general-purpose

committee from making a political contribution or expenditure unless its campaign treasurer

appointment has been on file for at least 60 days and it has accepted political contributions from at

least 10 persons. Id. § 253.037(a). Appellants argue that the State does not have an interest in

prohibiting speech for a period of time after a group is formed or in prohibiting expenditures and

contributions by groups of fewer than 10 people. They contend that the 10-person minimum is

28 60 unconstitutional because the government has no interest in ensuring that political speech has a base

of support and violates the right of association of any group of persons smaller than 10 persons.

The trial court concluded that it did not have jurisdiction to grant declaratory relief

with respect to these provisions because they were not at issue in this case and, therefore, any relief

would be advisory. See Todd, 53 S.W.3d at 305. Appellants argue that the trial court's conclusion

that it did not have jurisdiction was in error because appellants must abide by the deadlines in these

provisions to engage in political speech. The parties also stipulated that TDP "intended to enforce"

sections 253.031(c) and 253.037(a) against appellants. TDP's petition, however, does not raise

section 253.037, and limits the alleged violation of section 253.031 to the failure to appoint a

campaign treasurer at all. We therefore agree with the trial court that it did not have jurisdiction to

consider appellants' constitutional challenges to these provisions. On this basis, we overrule

appellants' fifth issue.

Criminal Penalties

In their sixth issue, appellants argue that the criminal penalties in the Election Code

violatetheEighthAmendment. See Tex. Elec. Code§§ 253.003(e), 253.094(c),253.095, 253.101(b),

253.1 02(c), 253.1 03(c), 253.1 04(c). The specified offenses under the Election Code are third-degree

felonies and subject to punishment by imprisonment "not more than 10 years or less then 2 years."

Tex. Penal Code§ 12.34. In addition to imprisonment, a corporate officer "may be punished by a fine

not to exceed $10,000." !d. The Eighth Amendment states that "[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const.

amend. vm.

29 61 The trial court did not address appellants' constitutional challenges to the criminal

penalties in the Election Code because it concluded that it did not have jurisdiction to do so. In its

order, the trial court reasoned that the State is not a party and that TDP was not entitled to seek

criminal penalties and, therefore, that any ruling would be an improper advisory opinion. See Todd,

53 S.W.3d at 305. We agree and, on this basis, overrule appellants' sixth issue.

CONCLUSION

Having overruled appellants' Issues, we affirm the trial court's final

summary judgment.

Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed on Motion for Rehearing

Filed: December 8, 2014

30 62 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED DECEMBER 8, 2014

King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, Appellants

Texas Democratic Party; Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party; John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk; and Ann Bennett, in her Capacity as the Democratic Nominee for Harris County Clerk, 55th Judicial District, Appellees

APPEAL FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY BEFORE CHIEF JUSTICE JONES, JUSTICES ROSE AND GOODWIN AFFIRMED ON MOTION FOR REHEARING -- OPINION BY JUSTICE GOODWIN

This is an appeal from the judgment signed by the trial court on March 27, 2012. Having

reviewed the record and the parties' arguments, the Court holds that there was no reversible error

in the trial court's judgment. We therefore order that the motion for rehearing filed by appellants

is overruled; that the opinion and judgment dated October 8, 2014, are withdrawn; and that the

Court affirms the trial court's judgment. The appellants shall pay all costs relating to this appeal,

both in this Court and in the court below.