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King Street Patriots v. Texas Democratic Party

Supreme Court of Texas

June 30, 2017

King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs, Petitioners,
v.
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

          Argued February 7, 2017

         On Petition for Review from the Court of Appeals for the Third District of Texas

          Justice Devine, concurring.

          John P. Devine Justice.

         Freedom 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.[1]

         In 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.

         But 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).

         I write 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.

         I

         Texas has banned corporations-large and small, rich and poor, for-profit and not-for-profit[2]-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.[3] 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.

         II

         Texas's 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.

         The 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.

         After 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, restrictions ...


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