Candidates for Austin City Council can start raising campaign cash anytime they want, a federal judge ruled this week in Council Member Don Zimmerman’s unprecedented lawsuit against the city, making campaign season year-round.
The ruling Wednesday by Judge Lee Yeakel, coming seven months after the case went to trial, upheld limits on how much a donor can give. His ruling amounted to a split decision on the campaign finance rules that Austin voters first approved nearly two decades ago:
• The judge overturned the blackout period that prohibited candidates from fundraising until six months before Election Day (this year, for instance, that period ended May 12 for the Nov. 8 election). Yeakel found the restriction violated Zimmerman’s freedom of association and the city did not demonstrate why it was necessary.
• Yeakel also struck down a “dissolution requirement” that said elected officials could keep only $20,000 of their leftover campaign money for officeholder expenditures, requiring anything beyond that to be given to contributors or charities. That rule also said leftover money could not be saved for future campaigns. Yeakel found that violated Zimmerman’s freedom of speech.
• The judge upheld a contribution limit of $350 per donor in an election cycle. Zimmerman argued that amount was so low that it would hurt communication with voters. But the court concluded that “interest in preventing quid pro quo corruption” justified the limit.
• Yeakel also kept the rule saying a candidate cannot receive more than $36,000 from donors who are not eligible Austin voters. Because Zimmerman received only $8,000 from non-Austin voters in 2014, the court ruled he was not able to demonstrate the $36,000 cap hurt him, and therefore he was ineligible to challenge the limit.
Zimmerman called himself pleased, but said he would likely appeal the judge’s decision on the contribution limits.
“It’s two down and two to go,” he said.
Appeals to come?
Austin’s campaign finance rules were first approved in a 1997 election by 72 percent of voters. In 2006, voters approved adjusting the campaign limits for inflation and shifting the requirements for the use of campaign dollars after the election.
The city defended those rules in the two-day trial over Zimmerman’s lawsuit in December. Now officials will have to decide whether to appeal the judge’s ruling. Mayor Steve Adler’s spokesman, Jason Stanford, had no immediate comment on the case Thursday.
Jimmy Flannigan, who is running against Zimmerman for the District 6 seat and has frequently criticized him as too litigious, said he would continue to make a campaign issue of the suit and ruling.
Overturning the blackout period will allow council members to be “on the take year-round,” Flannigan said.
“The city has a duty to appeal these rulings,” he said. “Voters approved these restrictions that, in my opinion, are good for democracy.”
Zimmerman, who also sued the city last month over the Proposition 1 election on rules for ride-hailing companies, said he would like to know whether the city plans to appeal Yeakel’s decision before he makes a decision about whether to appeal himself. But he said he still believed he was right about the limits on donor contributions.
“A popular vote can’t overturn your First Amendment rights to political speech,” Zimmerman said.
A mixed victory
During the December trial, Zimmerman’s lawsuit drew testimony from consultants for city campaigns who said before the restrictions were adopted, large donations from developers corrupted the system and led citizens to view the City Council as a “pay-for-play” body.
David Butts, one of the consultants who testified, said he saw Wednesday’s ruling as more of a victory than a loss on the more important points of the challenge.
“The major thing was to protect the $350” limit per donor, he said. “I do not interpret (the decision) as a very severe blow, and far short of what Mr. Zimmerman wanted to accomplish.”
Zimmerman’s attorney, Jerad Najvar, called the $350 limit arbitrary and, because it was restricted to campaign contributions and not officeholder money, discriminating in favor of incumbents. He said he was optimistic about an appeal.
Local political consultant Mark Littlefield noted that the decision won’t impact this year’s election — unless candidates decide to raise a lot more money in anticipation of keeping it — but it will substantially change things from here onward.
“If I’m Steve Adler or (Council Members) Ellen Troxclair or Ann Kitchen, I start raising money today for my (2018) race,” Littlefield said. “That’s something we haven’t had in 20 years. If someone takes a contribution and the next week there’s a council vote, everyone is going to question everyone’s motives.”
Genevieve Van Cleve, another local political consultant, emphasized that she hated to appear to agree with Zimmerman on anything, but said the limits on fundraising timing and maximum contributions hurt less-wealthy candidates and encouraged dark money.
She’s had to turn down money in campaigns from people who now live in Pflugerville but remain connected to their former South Austin neighborhoods, she said. Complex city financing rules are difficult to understand, except for professional consultants whose fees often exceed fundraising ability, she said.
“Zimmerman, ugh,” she said. “But the extended period of time is helpful for candidates who are not able to self-fund a campaign.”
Check out the key points in Don Zimmerman’s political career in an interactive timeline with this story at mystatesman.com.