King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs, Petitioners,
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, Respondents
February 7, 2017
Petition for Review from the Court of Appeals for the Third
District of Texas
Justice Devine, concurring.
P. Devine Justice.
of speech is the great bulwark of liberty; they prosper and
die together: And it is the terror of traitors and
oppressors, and a barrier against them.
recognition of this truth, the First Amendment to the United
States Constitution enshrines the freedom of speech in our
law, U.S. Const. amend. I, which includes the right to
participate in the democratic process by contributing to
political candidates, McCutcheon v. Fed. Election
Comm'n, 134 S.Ct. 1434, 1441 (2014). This right
protects natural persons and corporations like the King
Street Patriots. See Citizens United v. Fed. Election
Comm'n, 558 U.S. 310, 342 (2010) ("First
Amendment protection extends to corporations."). When
individuals with a common goal incorporate under state law,
government cannot exact as the price of incorporation those
individuals' First Amendment rights. Id. at 351.
that is what Texas's ban on corporate contributions does.
Under Texas law, no corporation, regardless of its size or
purpose, may contribute any amount of money to any candidate
for public office. I concur in the Court's judgment
because the Court has correctly applied Fed. Election
Comm'n v. Beaumont, 539 U.S. 146 (2003) and because
Texas law says we must apply a Supreme Court case, even if
called into doubt by later cases, until the Supreme Court
itself overrules the case. Bosse v. Okla., 137 S.Ct.
1, 2 (2016); Owens Corning v. Carter, 997 S.W.2d
560, 571 (Tex. 1999).
separately to emphasize two things. First, Beaumont
does violence to the First Amendment and is inconsistent with
Citizens United and McCutcheon. The Supreme
Court must overrule Beaumont to bring its caselaw in
line with the First Amendment. Second, schemes like
Texas's that ban corporate contributions to political
candidates violate the First Amendment.
has banned corporations-large and small, rich and poor,
for-profit and not-for-profit-from contributing to political
candidates. Any contribution to a candidate would be a
"campaign contribution" or an "officeholder
contribution." Tex . Elec . Code § 251.001(3), (4).
A "campaign contribution" is 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. Whether a
contribution is made before, during, or after an election
does not affect its status as a campaign contribution."
Id. § 251.001(3). And an "officeholder
contribution" is a "contribution to an officeholder
or political committee that is offered or given with the
intent that it be used to defray expenses that" are
"incurred by the officeholder in performing a duty or
engaging in an activity in connection with the office; and
[are] . . . not reimbursable with public money."
Id. § 251.001(4). Every campaign contribution
and every officeholder contribution is a "political
contribution." Id. § 251.001(5). But the
Election Code allows corporations to make only political
contributions allowed by law. Id. § 253.094(a).
Nowhere does the Election Code authorize corporations to make
political contributions to candidates-even through political
committees. A person who makes an unauthorized
political contribution commits a felony of the third degree.
Id. § 253.094(c). Thus, the Election Code
prohibits corporations from contributing to candidates.
corporate-contribution ban violates the First Amendment. The
government can regulate protected political speech in certain
circumstances. McCutcheon, 134 S.Ct. at 1441. Courts
therefore use a balancing test to determine whether
restrictions on speech violate the First Amendment. See
id. at 1445 ("[W]e must assess the fit between the
stated governmental objective and the means selected to
achieve that objective."). Applying such tests involves
assessing the government's interest in limiting speech
and determining whether the government's means are
sufficiently tailored to the government's interest.
Id. The Supreme Court has left unclear the level of
scrutiny that applies to government regulation of political
contributions. In Buckley v. Valeo, the Court did
not apply to political contributions the exacting scrutiny it
applies in cases involving "core First Amendment Rights
of political expression." 424 U.S. 1, 44-45 (1976).
Rather, the Court applied a lesser but "still
rigorous" standard of review under which the government
must demonstrate a "sufficiently important
interest" to which its means must be "closely
drawn." Id. at 25-26. Under the "exacting
scrutiny" the Court applies in cases involving core
First Amendment speech, including political expenditures, the
government must demonstrate a compelling interest and that
the means chosen to further that interest are the least
restrictive means possible. McCutcheon, 134 S.Ct. at
1444. In other words, if the government wants to regulate
political speech, it must have a good reason to do so, and it
must not prevent more protected speech than necessary to
achieve its goal.
Court most recently discussed political contributions in
McCutcheon. There, the Court struck down the federal
aggregate contribution limits. Id. at 1442. Whereas
the federal base limits, which are constitutional, cap the
amount an individual may contribute to a single candidate,
the aggregate limits capped how much an individual could
donate overall during an election cycle. Id. The
Court did not say what standard of scrutiny applied.
Id. at 1445. Rather, it found "substantial
mismatch" between the government's ends and means
and therefore held the aggregate limits unconstitutional
"even under the 'closely drawn' test."
Id. at 1446.
Citizens United and McCutcheon, only one
interest justifies states' restrictions on political
speech: preventing quid pro quo corruption or its appearance.
Id. at 1450-51. Quid pro quo corruption entails
contributions to candidates in exchange for political favors.
Id. at 1451. However, "spending large sums of
money in connection with elections, but not in connection
with an effort to control the exercise of an
officeholder's official duties, does not give rise to
such quid pro quo corruption." Id. at 1450. Nor
does the mere "possibility that an individual who spends
large sums may garner influence over or access to elected
officials or political parties." Id. at 1451
(internal quotations and citations omitted). Thus,