Thursday, May 24, 2012

The Recall In Pieces: Send in...the Lawyers

“Yes, I’m in bed with a misogynist, son-of-a-bitch. A fraudulent bastard. And I don’t feel comfortable.  And he can come after my ass.  But it’s the process I’m defending.  It’s the process that knucklehead politicians have put in jeopardy- [they] have been taken advantage of by a charlatan.  And every anti-gay asshole…I despise his people, but I defend the process, and the process is called democracy.”  Such were the sentiments of Jesus B. Ochoa, Civil Rights attorney, Chicano activist, and friend, at the end of a long interview where he defended the recall, and took the courts to task for decisions that he felt were already penned before the legal briefs were filed. 

His main gripe here, is the vacation of a measure that received the majority of the popular vote, “The example I like to draw is, you know we’re trying to get El Segundo declared a historic district.  Let’s go the referendum route.  Let’s assume we do get the referendum passed, and the city decides, ‘What about that baby [the Plan]?’”
I have seen a lot of lawyers this month, and everyone has a strong opinion about how these cases could have meted out.  Most of the local attorneys I approached didn’t want to give their opinions on record and/or be named. Because of the highly charged environment revolving around the whole mess, I asked a friend of mine, an attorney who is licensed in another state, and has no connection to El Paso politics other than me, to provide me with unbiased legal analysis.  He was not briefed on any of the background.  Only given copies of the laws themselves and related judgments.    
There are multiple legal questions at play within the ballot initiative, the Police and Firefighter’s Union lawsuit, the recall itself, and Mayor Cook’s lawsuit against El Paso for Traditional Family Values and Pastor/Bishop Brown, which can be summarized thusly:
a)    in that they garnered petitions from within their congregations and the churches themselves.
b)   in that they never reclassified their PAC (EP4TFV) from it’s original specific use, which was to raise money, disseminate information about, and collect signatures for the original ballot initiative
Because of the highly charged environment revolving around the whole mess, I asked a friend of mine, an attorney who is licensed in another state, and has no connection to El Paso politics other than me, to provide me with unbiased legal analysis, and help me parse the arguments.  He was not briefed on any of the background.  Only given copies of the laws themselves and related judgments.     

Let’s go line by line:
1) Judge Montalvo’s decision with the Federal District Court Western District says, no.  As per the El Paso Times: the decision, essentially, was that the ordinance repealing partner benefits was so broadly written that it put an equal burden on all parties excluded from benefits.
Per JB: “The judge's observation that the ‘law technically discriminated against everyone,’ was simply dicta and not any part of the ruling. Dicta commonly being defined as not necessary to what the judge actually held in his ruling, and maybe even obiter dicta, which usually- the dicta had nothing to do with anything…
“I honestly think Montalvo saw the lawsuit as poorly framed and in asking the parties to brief the question of due process and equal protection, which was alleged but lacked legal support, since [Officer Jimenez] standing, confused with the contract issue, was up in the air - the judge was actually asking for a hand from the parties as to how he could possibly strike down the ordinance. They failed to heed his invitation…”

2) Joyce Wilson’s answer to The Times regarding council’s authority was, “The ballot initiative is an ordinance. The City Charter provides that ordinances can originate in two ways -- via the action of the City Council or via a citizens' initiative. However, ordinances can be changed or rescinded. An ordinance approved via a ballot initiative doesn't have a different status than that of a council-initiated ordinance… A City Council would decide to not proceed with issuing bonds or moving forward with projects covered by a bond election due to a host of unforeseen circumstances, like an economic downtown. A council also could decide to not impose a tax increase or roll it back at a later date. There may be political consequences for doing so, but the authority does exist.”  Charlie McNabb, City Attorney at the time of the ballot vacation, refused my requests for an interview.
It seems like there should be federal authority limiting the city's ability to do this, against a duly passed initiative. But such authority wasn’t found, after much searching. Essentially, with regards to an initiative, as long as the city council passes its amendment through a process that's valid by its own rules (in Texas, those “rules” would start with the city charter and go on from there), the vacation is valid.

However, it's possible that El Paso's powers to nullify initiative measures might also be limited by state law — which, again, would start with the city's charter.
3) Theresa Caballero insisted during our interview that the law could have been amended by the City Attorney before it made its way onto the ballot. “According to the process, the city attorney has the final word as to how things are worded.  And the City Attorney didn’t change anything.  He didn’t add anything.  He didn’t anything…and then City Council voted to adopt the wording and put it on the ballot.  Why have this wasted exercise when you’re just going to trash it.  That’s wrong.  Why let people chase their tails?” 
 Both Ortega and O’Rourke firmly denied that they or the City Attorney, Charlie McNabb, had the ability to do so.  O’Rourke said, “Not at all, categorically no.  We tried, since we were barred from changing the language we informed the public, here are the consequences.”
Ortega : “If I were to give you something to sign that proposed turning all of the city’s grass orange and you sign it and afterwards and I support changing all the city’s grass to purple I’d be in violation of a number of principles.  We had to take the language as it was given to us. Where the signatures- that’s the language that the signatures attach themselves to.  When I told you Nov. 2009 Tom Brown visited us.  I told him- get a lawyer to help craft the language, that you’re going to propose.  They chose not to do that.  They crafted the language on their own.  It was legally suspect.”
4.            a.            The petitions were invalidated by the 8th District Court of Appeals citing that they were garnered in a way that was in violation of HB No. 2539, Section 2(b), which revises Sections 253.094 of the Texas Election Code to ban corporations and unions from making contributions or circulating petitions in a recall election.
b.            Per the El Paso Times (see timeline) the PAC was organized as a single use PAC for the purpose of collecting signatures for the ballot initiative, and not for collecting petitions for the recall. 

I could not find El Paso(ans) for Traditional Family Values on either the most recent IRS rolls for Texas Tax-Exempt Organizations or on the Texas Comptroller’s online rolls, and was unable to verify the Times reporting.  But, if (b) is true, than Federal charges could also be forthcoming.

5.  During my interview with Caballero and Leeds, they repeatedly referred back to Citizens United.  As did J.B. Ochoa.  So, here’s the big question, is the Texas Law copasetic? 

Texas law's revisions to the Texas Elections Code, in a nutshell, imposes limits on two types of political speech:

- Expenditures: Which are subject to reporting requirements

- Contributions: Which are subject to reporting requirements and a ban applying to corporations and labor organizations.

The Citizens United line of cases includes many instances where reasonable recording requirements are upheld.  There are other questions to consider, like are Texas' recording requirements "reasonable"?

The ban regarding corporations and unions exists in federal law, and has been upheld as it applies to federal elections. The source of this ban in federal law is the Taft-Hartley Act of 1947, which is quite well established (and which was not touched in Citizens United). In federal law this ban applies to "direct contributions" — i.e., to candidate campaigns or to political parties.

The key question posed by the Texas law is: If the federal government can apply this ban, can states do so as well? This question is hard to verify in the Citizens United line of cases.  Similar bans do exist in a number of states. I’m not sure if there are existing court challenges to those rules, but it can be presumed that since the bans are so widespread, they must be valid or else they would have been widely challenged by now.

What would a federal court do in light of the Citizens United line of cases (not necessarily just Citizens United itself), when faced with Texas' attempt to apply this ban in state/local elections?

HB No. 2539, Section 2(b), which revises Sections 253.094 of the Texas Election Code to ban corps/unions from making contributions or circulating petitions in a recall election, would be held valid in general, and it already had a strong test regarding the 8th District decision.

JB Ochoa has strong feelings about this decision. In my interview via email:
In an email, JB answered my concerns thusly, “Clearly the Texas election code suppresses speech - you have to form a committee, treasurer, file reports - and it you don't you have committed a crime. It is as if the 8th read through blinkers.”  He then cited SCOTUS’ decision,
"'Laws that burden political speech are 'subject to strict scrutiny,' which requires the Government to prove that the restriction 'furthers a compelling interest
narrowly tailored to achieve that interest.'" slip op. at 23

“The 8th's attempt at strict scrutiny is simply to ignore this requirement of a judicial imperative mandated by Supreme Court law.

“’When Government seeks to use its full power, including the
criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the
freedom to think for ourselves.’ slip op. at 40.

“The above quotes are dicta, but they show the court's concern for robust
speech - a shame they were extending it to corporations.

        ‘. . . the Court [has] acknowledged that as-applied challenges would be

        available if a group could show a 'reasonable probability' that
        disclosure of its contributors' names 'will subject them to threats,
        harassment, or reprisals from either  Government officials or private
        parties.'" slip op. at 52, citing authority.

“The Supreme Court. wrote:

       ‘Disclaimer and disclosure requirements may burden the ability to speak,

       but they 'impose no ceiling on campaign-related activities,' /Buckley/,
       424 U.S. at 64, and 'do not prevent anyone from speaking,' /McConnell/,
       supra, at 201 (internal quotation marks and brackets omitted.).’”
There are two potential weaknesses in the Section 2(b) ban: The fact that it applies to specific types of elections (recalls), and the fact that it bars the circulation of petitions.

Limiting the ban to corps/unions' participation in recall elections: if the purpose of this narrow provision is not clear to a judge, then that's a potential source of weakness. This just means that courts will require the law's advocates to explain what public interest the ban serves.

Restricting the right to circulate a petition: The right to circulate a petition is direct political speech; that's a little more fundamental than the right to make political contributions, and thus it receives a little more constitutional protection than contributions (even after Citizens United). Within the timeframe I had to work on this article, we were unable to find any Federal cases specifically addressing the right to circulate petitions.  So we can list that here as another weakness as well.

The scope of the limit: Being for corps/unions' contributions to recall campaigns only. This is presumptively constitutional because much broader limits have been well-established in other states. But it's still oddly narrow, and inexplicably narrow limits on fundamental rights (including 1Amd rights) always raise questions of Equal Protection. If someone with more knowledge of the practical realities of recall petitions wanted to argue that there was an Equal Protection issue here, the question wouldn’t be out of bounds.

What about Citizens United? In Citizens United, the Supreme Court gave First Amendment protection to general political expenditures by corps/unions. This doesn't automatically extend First Amendment protection to corps/unions' direct campaign contributions, which are the issue we're discussing in Texas law...but it's as close as the Supreme Court has ever come to this question. If someone wants to argue that Taft-Hartley is about to be overturned, either on the federal or state level, they will unquestionably rely on Citizens United and try to argue for extending its First Amendment protections beyond general political expenditures to include direct campaign contributions. A case like this probably is kicking around somewhere in the District Courts right now.

6) Brown is currently looking at charges being filed for a third degree felony.  Theresa Caballero and Stuart Leeds have vowed to take their appeals to the Federal level, but that may be on permanent hold as they face possible disbarment. 
7) As long as the 8th District Court of Appeals decision remains valid, the Church is in violation of the Johnson Amendment, and WoL as well as the other two churches involved in petitioning could see their non-profit status’ revoked.  As to my knowledge as of today, the IRS has not started an investigation or proceedings to do so.  But as Steve Ortega put it, “If Tom Brown wants to lose tax-exempt status for his Word of Life Church, then he can collect all the signatures in the world at his place of worship, but once he is receiving his tax exempt status, the law comes in and says your abilities to get involved in politics is going to be limited.”
My deep, abiding thanks to Chris Reeder for legal analysis. 

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