In Texas, it is time to follow the money
Monday, October 03, 2011 at 9:28 am
Catherine Engelbrecht is just a suburban Houston soccer mom, an accidental activist with a cowboy hat and a dream to help get America back on track. That’s the story in a year’s worth of nationwide media hype, and in her legal defense against a suit from the Texas Democratic Party.
Engelbrecht led meetings every week to help see that dream through, she says, and she passed that cowboy hat around. And the speakers who addressed the group — conservative authors, candidates for office around Houston, even congressmen and Gov. Rick Perry himself — inspired such confidence in the cause that she raised $87,000 in that cowboy hat last year.
But Engelbrecht also has a team of lawyers both in and outside Texas hoping to cement that narrative of her and her group, the King Street Patriots, at the very same time they use it to topple Texas’ ban on direct corporate giving from corporations to candidates — an explicit attempt to extend Citizens United to Texas, one of 22 states where those contributions are still illegal.
That’s because King Street Patriots, or KSP — a frequent subject at Texas Independent, recruiter of foot soldiers in the GOP voter impersonation scare — is tied up in an Austin court case, accused by the Texas Democratic Party says the group’s activities leading up to the 2010 election put it outside the bounds of its nonprofit status, and outside Texas election law.
While KSP’s most ambitious efforts focused on training poll watchers — new effort 2012, its spinoff group True the Vote spinoff, hopes to raise $500,000 and train one million poll watchers across the country for the presidential election — it drew a challenge for its habit of attracting Republican candidates to talk party politics and thank supporters for their help, without inviting their opponents.
“King Street Patriots,” said Texas Democratic Party General Counsel Chad Dunn at the time, “evidently believes the law doesn’t apply to them.”
In October, James Bopp Jr. — the architect of the Citizens United case, and an Indianapolis attorney who’s made a crusade of loosening corporate campaign spending laws — told the Texas Independent that, in fact, the law shouldn’t have to apply to them. The limits on corporate spending shouldn’t be on the books at all, he said, because they’re not constitutional.
Bopp, who got his start as a lawyer for the National Right to Life Committee, started the nonprofit James Madison Center for Free Speech with help from Kentucky Sen. Mitch McConnell, isn’t shy about the party politics behind his work.
“The Democrats are all about shutting up their opponents because they have no message. They have nothing they are for that is popular with the American peoples, so their only recourse is lies,” he told the Independent last fall. “(KSP’s opponents) are trying use Texas law to shut up their opponents, to throw them in jail for talking about issues,” Bopp said.
At the time, he was waging corporate campaign cash battles in at least a dozen states, hoping to extend the corporations-are-people logic of Citizens United to a more fundamental level of law. It wasn’t long before he found his cause in Texas.
KSP already had backing from the Liberty Institute, the family values, pro-Christian legal center based near Dallas, which started off by denying that KSP’s actions were partisan at all. The state Democratic Party wanted a look at KSP’s books, and the group handed over its records, showing they’d taken in around $87,000, which the group said in a court filing came from passing a cowboy hat for donations.
Liberty Institute president Kelly Shackelford said the total “shows what a joke of a lawsuit this is.”
As former Texas Independent editor Patrick Brendel reported at the time:
The Transaction Reports posted on KSP’s website do not list the identities of donors or amounts of individual contributions, but does break out deposits by date. A handful of large deposits account for a significant portion of KSP’s funding, including $15,201 on April 20, $12,150 on June 1 and $7,003 on Oct. 7.
“It strains belief that this group is saying they raised $87,000 by passing the hat at their meetings,” the Texas Democratic Party’s lawyer Dunn said at the time, and the party continued calls for KSP to come out and name its donors, as Texas law requires of political committees.
Instead, KSP went on the offensive. In mid-November, the group filed a countersuit, laced with references to the Citizens United precedent, and numbering the ways in which Texas’ election code is unconstitutional. Among the lawyers listed at the bottom of the suit, along with lawyers in Houston, Austin and at the Liberty Institute, was James Bopp Jr. in Terre Haute, Ind.
The case sitting in the Travis County courthouse before District Judge John Dietz seems to have its bags all packed for a trip to higher courts, and the stakes couldn’t be higher for the campaign cash limits that have for years kept at least some forms of spending in check in the midst of Texas’ big-money politics, and even ensnarled former House Majority Leader Tom DeLay.
“Texas’s general ban on corporate political contributions violates the underlying premise of Citizens United,” KSP’s countersuit argues, because it permits noncorporate groups and individuals to make political contributions, but bans corporations from making the same speech.”
KSP’s countersuit names three sections of the Texas Election Code it says are unconstitutional (here, here and here), first of all, because they open the door to private suits over campaign spending based on language that’s too vague. Phrases like “in danger of being harmed” and “threatened violation” are all terms the suit calls “vague and ill-defined.”
Before the 2010 elections, KSP held candidate forums for Republican candidates — forums some Democratic challengers say they were never invited to join. Republican candidates used KSP’s headquarters as a campaign center. The watchdog group Texans for Public Justice filed a complaint against KSP with the Texas Ethics Commission about in-kind donations worth “what appears to be worth tens, if not hundreds of thousands of dollars.” But the countersuit argues argues the vagueness of the law because “offering a stick of gum” to a candidate could be read as assisting the campaign.
The suit saves its liveliest concerns for the third degree felony charge that comes with violating these laws, and the consequences Texas law provides for whoever has the bad luck of answering for a corporation that breaks the law.
With a prison sentence of two to 10 years, KSP argues, “Texans risk greater penalties for engaging in political speech than for” a number of serious crimes, listed at length for nearly a page but including indecent exposure, drunk driving, forgery and running a brothel.
“Evidently, the Texas legislature feels that the political speech of concerned citizens is on par with the speech of terrorists,” the suit argues, because making a serious terror threat is a third degree felony in Texas too — before helpfully adding that, “Actually, the terrorists have it easier,” because prosecutors must offer proof of their nasty intent.
It’s “cruel and unusual punishment” to send a corporation’s officer to prison for years for violating these campaign laws — a decade in prison for offering a stick of gum! — and yes, by the way, KSP is also challenging the suggestion that it needs to name its donors.
On that point, Bopp and KSP go even further than Citizens United — too far, said the nonpartisan watchdog Campaign Legal Center in a brief filed with the court in September. “KSP stretches the Supreme Court’s recent decision in Citizens United beyond the breaking point,” the center’s lawyers wrote.
“This is just one case in an aggressive nationwide litigation offensive seeking to invalidate a broad swath of state campaign finance laws in the wake of Citizens United,” said Legal Center Counsel Tara Malloy in a statement.
Sticking to the group’s folksy creation story, though, the countersuit says Engelbrecht, and her fellow King Street Patriots are just:
a group of concerned residents from the Houston area who simply decided to get involved in the political process. For so doing, they have been haled [sic] into court. They exercised their First Amendment freedoms reasonably expecting that doing so would not lead to the threat of excessive fines and even criminal punishment.
But Dunn, the Democratic Party’s lead counsel, sees them all in a very different light.
“King Street Patriots is a corporation, and it’s operating in complete defiance of state law,” Dunn said recently. “They operate in a shadow capacity, taking in money from god knows what kind of corporate business and insurance interest, and it’s all designed to try to abate the tide of overwhelming growth and voting by minority population in texas.”
Their next hearing is set for Nov. 8 in Austin, and whether or not it’s the beginning of the end for Texas’ ban on corporate campaign giving, one gets the sense that — even after decades chasing this cause — with eerily similar challenges working through courts in Minnesota, Montana and other states, it’s only the beginning for James Bopp.
Yana Kunichoff contributed reporting to this story.