Former City Council Member Don Zimmerman’s mixed victory in his fight against Austin campaign finance rules will stand, an appeals court ruled Thursday.
The 5th U.S. Circuit Court of Appeals agreed with the lower court’s ruling from 2016 that struck down two provisions of Austin’s campaign finance rules and left two others in place. Most notably, the decision held that Austin could not justify a blackout period that prohibited candidates from fundraising until a certain period of time before an election.
Previously, Austin’s rules disallowed any fundraising earlier than six months before an election day. After the lower court overturned that in July 2016, City Council members passed a new ordinance allowing fundraising only within one year before an election.
In its ruling, the appellate court noted that Austin conducts business year-round and does not change its consideration of votes based on when elections are, so candidates are no more susceptible to bribes six months before an election than they are a year or two before.
“Austin needed to establish that even if a $350 contribution near the time of an election is not likely to lead to actual corruption or its appearance, the same contribution made at another time is,” the court wrote.
Zimmerman’s attorney, Jerad Najvar, said the court’s arguments clearly apply to the new one-year window the council approved in October, just as the six-month window it struck down. Najvar won a similar case against Houston that overturned a nine-month fundraising window there.
“The new one-year fundraising window (in Austin) is just as unconstitutional as the six-month window, and this ruling just reinforces that,” he said. “The sooner Austin learns the lesson of how the First Amendment applies to these rules, the better for taxpayers.”
Last August, the council put an additional $75,000 toward the legal bills on the case, bringing the total tab to $255,000.
It’s unclear whether anyone in Austin will challenge the new time period. Previously, Council Member Leslie Pool said she hoped a longer fundraising window would be less susceptible to lawsuits.
“A year is … twice as long,” she said in October. “It’s unseemly for people to be raising money when they’re also passing judgments on issues that have very real consequences to the community.”
The appeals court also sided with Zimmerman over a “dissolution requirement” that said elected officials could not use campaign money for future races, rejecting Austin’s argument that Zimmerman lacked standing to challenge it, and finding that use of the money for campaigns amounted to freedom of speech.
The court sided with the city of Austin in upholding a campaign contribution limit of $350 per donor in an election cycle and a rule that a candidate cannot raise more than $36,000 total from donors who live outside of Austin’s city limits.
Najvar plans to continue fighting on those fronts. Zimmerman intends to file a motion for the entire 5th Circuit to rehear the case, he said.
On the $350-per-donor limit, the court noted that the Supreme Court has held that contribution limits are different than expenditure limits — and less of a burden on free speech.
“We decline Zimmerman’s invitation to blur the line that the Supreme Court has drawn,” the court wrote.
It added that the limit was on par with others that have been upheld—such as Missouri’s $275 contribution limit in 2002 for candidates for any office representing fewer than 100,000 people. It also took into account testimony from Zimmerman’s former council colleagues, and it shot down arguments that the policy favored incumbents.
“Zimmerman himself, an incumbent, was defeated when he ran for re-election in 2016,” the court wrote.
It agreed with the lower court ruling that Zimmerman did not have standing to challenge a maximum total of $36,000 to be raised from outside the district, because he had raised nowhere near that much.
Zimmerman told the court in a signed declaration that, if he could have raised more, he would have paid $5,000 to purchase a list of conservative donors from outside his area. But the court wasn’t persuaded that was enough of an injury to give Zimmerman standing.