Joint Heirs Fellowship Church v. Ashley
Joint Heirs Fellowship Church v. Ashley
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Plaintiffs Joint Heirs Fellowship Church, Houston’s First Church of God, and Faith Outreach International Center (collectively, “Plaintiffs”) brought this action against the Executive Director and members of the Texas Ethics Commission, in their official capacities (collectively, “Defendants”) challenging certain provisions of the Texas Election Code. Pending before the court are Plaintiffs’ Motion for Temporary Restraining Order and Expedited Preliminary Injunctive Relief (“Motion for Preliminary Injunction”) (Docket Entry No. 2), Defendants’ Motion for Summary Judgment (Docket Entry No. 52), and Plaintiffs’ Motion for Summary Judgment and Memorandum in Support (“Plaintiffs’ Motion for Summary Judgment”) (Docket Entry No. 53). For the reasons explained below, Plaintiffs’ Motion for Summary Judgment will be denied, Defendants’ Motion for Summary Judgment will be granted in part, Plaintiffs’ Motion for Preliminary Injunction will be denied, and this case will be dismissed.
I. Background
Plaintiffs are incorporated churches that wish to become involved in efforts to recall certain elected officials.
When Plaintiffs filed their Motion for Preliminary Injunction, there was “a recall effort under way in San Antonio, Texas, to recall Mayor Julián Castro and council members Diego Bernal, Rebecca Viagran, Rey Saldaña, Shirley Gonzales, Ray Lopez, Cris Medina and Ron Nirenberg.”
Plaintiffs allege that under certain provisions of the Texas Election Code they “cannot be involved in supporting the recall efforts through raising money, donating money, coordinating people’s activities, promoting the recall effort on church websites, allowing petitions to be signed and distributed on church grounds, speech supporting the effort, or in any way public[ly] supporting recall efforts.”
A. Plaintiffs’ Intended Conduct
Plaintiffs allege that they intend to engage in the following conduct:
a. Circulating recall petitions,
b. Submitting recall petitions,
c. Obtaining signatures and support for recall petitions or in opposition to recall petitions,
d. Promoting recall efforts in communications to the public, including but not limited to the posting of information on the Plaintiffs’ websites, church commu*603 nications, bulletins, in the media, in interviews, and in other communications;
e. Encouraging others to circulate, support, or oppose recall petitions,
f. Utilizing or providing facilities, equipment, supplies, or personnel to assist in the signing and circulation of recall petitions and in connection with recall petitions,
g. Notifying the public that recall petitions are available for signing at their church[es] or other locations,
h. Raising and spending funds in support of recall petitions or in opposition to recall petitions,
i. Sending out emails and other communications to church members and to the public encouraging them to get involved in matters regarding recall petitions, including, without limitation, circulating and signing recall petitions,
j. Speaking from the pulpit and other venues in support of or in opposition to recall efforts,
k. Coordinate with the two other Plaintiff churches in this matter, and with other individuals and organizations, for the principal purpose of circulating and submitting recall petitions and otherwise advocating recalls, including through the raising and spending of funds, and the other actions mentioned above.
l. [Each Plaintiff] intends to contribute funds from its regular budget to support the recall or other measures-only efforts. Also, when raising funds for a recall effort or a measures-only effort, they intend to inform potential contributors that the funds will be used in connection with the recall effort or measures-only effort.
m. Doing any of the above activities in connection with a measures-only issue in addition to recall petition matters.9
B. Procedural History
Plaintiffs filed their Original Complaint and Motion for Preliminary Injunction on January 17, 2014.
On February 4, 2014, Plaintiffs filed their proposed findings of fact and conclusions of law related to the preliminary injunction hearing.
On February 19, 2014, Defendants filed their proposed findings of fact and conclusions of law, and their supplemental briefing on Plaintiffs’ Motion for Preliminary Injunction.
On March 18, 2014, Plaintiffs filed their Second Amended Complaint.
On June 13, 2014, the parties submitted the pending motions for summary judgment.
II. Standard of Review
Rule 56 of the Federal Rules of Civil Procedure mandates summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party moving for summary judgment “bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). When the nonmoving party would bear the ultimate burden of proof at trial, the moving party may satisfy its summary judgment burden by “ ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Rule 56 does not require such a movant to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). Where the moving party would bear the burden of proof at trial, it must present evidence that would require “a directed verdict if the evidence went un-controverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
Once the movant has carried this burden the nonmovant must show that material facts exist over which there is a genuine issue for trial. Reyna, 401 F.3d at 349 (citing Celotex, 106 S.Ct. at 2553-54). The parties may support the existence or nonexistence of a genuine fact issue by either (1) citing to particular parts of the record, including depositions, documents, electronically stored information, affidavits or declarations, admissions, and interrogatory answers, or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(e)(l)(A)-(B). In reviewing this evidence “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000).
III. Article III Standing
“Article III of the Constitution limits federal ‘Judicial Power,’ that is, federal-court jurisdiction, to ‘Cases’ and ‘Controversies.’ ” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). “[T]he require
“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’ ” Babbitt, 99 S.Ct. at 2309 (quoting Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973)). “But ‘persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.’ ” Id. (quoting Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971)); see also Hoyt, 878 F.Supp.2d at 730 (“An injury for standing purposes must be (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” (citing Lujan, 112 S.Ct. at 2136)). “In determining whether a threat is credible or speculative, the Fifth Circuit ‘look[s] to the practical likelihood that a controversy will become real.’ ” Hoyt, 878 F.Supp.2d at 731 (quoting Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002)). “In all cases, however, a plaintiff must intend to engage in statutorily proscribed activity.” Id. “Specifically, plaintiffs must demonstrate a serious [] interest [ ] in acting contrary to a statute.” Nat’l Fed’n of the Blind, 647 F.3d at 209 (quoting Miss. State Democratic Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008) (internal quotation marks omitted)). Because Defendants do not contest that Plaintiffs’ proposed conduct is affected by a constitutional interest, the court will look to whether such conduct is proscribed by statute and whether there is a credible threat of prosecution. Cf. Hoyt, 878 F.Supp.2d at 733-34 (acknowledging that “[i]t is well-established that ‘[petition circulation ... is ‘core political speech[ ]’ ” for which “First Amendment protection ... is ‘at i[t]s zenith’ ” and assuming without deciding that such activity is affected with a constitutional interest (quoting Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 119 S.Ct. 636, 639-40, 142 L.Ed.2d 599 (1999))).
IV. Analysis
Plaintiffs challenge the constitutionality of eight provisions of the Texas Election Code: (1) § 253.094(b), (2) § 253.096, (3) § 253.094(a), (4) § 251.001(12), (5) § 252.001, (6) § 253.031(b), (7)
Plaintiffs’ Second Amended Complaint raises both facial and as-applied challenges. “[F]acial and as-applied challenges have different substantive requirements.” Catholic Leadership Coal. of Texas v. Reisman, 764 F.3d 409, 425 (5th Cir. 2014) (citing Doe v. Reed, 561 U.S. 186, 130 S.Ct. 2811, 2817, 177 L.Ed.2d 493 (2010)). “[T]o categorize a challenge as facial or as-applied [the court] look[s] to see whether the ‘claim and the relief that would follow reach beyond the particular circumstances of the [ ] plaintiffs.’ ” Id. (quoting Reed, 130 S.Ct. at 2817). If so, then the claim must “ ‘satisfy [the] standards for a facial challenge to the extent of that reach.’ ” Id. (quoting Reed, 130 S.Ct. at 2817).
Plaintiffs have two ways to prevail on a facial challenge. Id.; see also United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010). “First, Plaintiffs can ‘establish that no set of circumstances exists under which [the law] would be valid or that the statute lacks any plainly legitimate sweep.’ ” Catholic Leadership, 764 F.3d at 426 (quoting Stevens, 130 S.Ct. at 1587). “Second, Plaintiffs may also invalidate a statute as overbroad if they demonstrate that ‘a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’.” Id. (quoting Stevens, 130 S.Ct. at 1587).
A. Plaintiffs’ Challenge to § 253.094(b)
Plaintiffs argue that § 253.094(b) “is a categorical ban on corporate contributions to recall matters and is still the law of Texas.”
1. Plaintiffs’ Standing to Challenge § 258.094(b)
Section 253.094(b) states that “[a] corporation or labor organization may not make a political contribution in connection with a recall election, including the circulation and submission of a petition to call an election.” Tex. Elec.Code Ann. § 253.094(b) (West Supp. 2014). Defendants point out that § 253.094(b) only prohibits the circulation and submission of a petition to call an election when such activity constitutes a “political contribution.”
“The Texas Election Code distinguishes political contributions from political expenditures.” Hoyt, 878 F.Supp.2d at 735; see also Catholic Leadership, 764 F.3d at 415
A “measure” is “a question or proposal submitted in an election for an expression of the voters’ will and includes the circulation and submission of a petition to determine whether a question or proposal is required to be submitted in an election for an expression of the voters’ will.” Tex. Elec.Code Ann. § 251.001(19) (West 2012). It is undisputed that the term “measure” “includes a recall election as well as any effort to circulate petitions in support of holding a recall election.”
“Whether a particular activity constitutes a political contribution depends on the specific facts of the situation.” Hoyt, 878 F.Supp.2d at 735. “[A] political contribution requires contributions be made ‘to a ... political committee’ and be given with the ‘intent that it be used ... on a measure.’” Id.
Defendants allege that “to the extent each church wishes to engage in [efforts related to recall elections] on its oum and without coordinating with a candidate or political committee—such as by funding their own ads to support a recall effort, or by advertising a recall effort on a church website” such activity would constitute a “direct campaign expenditure,” rather than a political contribution, “and therefore would not be activity implicated by [§ 253.094(b) ].”
However, Plaintiffs allege that they also intend to coordinate with each other “and with other individuals and organizations, for the principal purpose of circulating and submitting recall petitions and otherwise advocating recalls, including through the raising and spending of funds, and the other actions” identified in their Second Amended Complaint.
are Texas corporations and want to engage in the circulation and submission of petitions to call for a recall election, by working in concert with each of the other plaintiffs and other interested individuals and organizations, to circulate and submit petitions, and publicly advocate the recall petition efforts, including through the concerted raising and spending of funds and contribution of facilities and resources.43
Defendants acknowledge that Plaintiffs’ proposed coordination will render the three churches a “political committee” under Texas law.
Defendants acknowledge that such activity is barred by § 253.094(b)
(a) The Texans for Free Enterprise Injunction
The injunction at issue arose out of a challenge to § 258.094(a) and states:
Defendants TEXAS ETHICS COMMISSION, DAVID A. REISMAN, and their commissioners, agents, servants, employees, any other persons or entities in active concert or participation with Defendants are permanently enjoined from:
1. Enforcing or attempting to enforce the contribution restrictions of Sections 258.008(b) and 253.094(a) of the Texas Election Code, and any applicable rules and regulations regarding those provisions when applied to contributions to Texans for Free Enterprise and all other similarly situated corporations for the purpose of making direct campaign expenditures; and,
2. Enacting or attempting to enforce any other laws, rules, or regulations that violate the First Amendment rights of Texans for Free Enterprise and all other similarly situated corporations by directly or indirectly prohibiting contributions to a direct campaign expenditure-only committee for the purpose of making direct campaign expenditures.49
Defendants argue that because Plaintiffs “disclaim any intention to coordinate their activities with any person who is a candidate for, or who plans to be a candidate for, the offices for which they plan to seek a recall,” any political committee that they form could register as a “direct campaign expenditure only” committee, and Defendants would be barred from enforcing § 253.094(b) to prohibit Plaintiffs’ proposed political contributions to that committee.
Plaintiffs argue that the Texans for Free Enterprise Injunction does not protect them from prosecution for their intended conduct. Plaintiffs point out that the injunction arose out of a challenge to § 253.094(a), that “Free Enterprise did not involve a challenge to subsection (b), and the resulting injunction does not mention subsection (b).”
(b) Direct Campaign Expenditure Only Committees
Plaintiffs argue that any political committee they form by coordinating their ef
Regulations issued by the Texas Ethics Commission state:
(5) A campaign expenditure is not a contribution from the person making the expenditure if:
(A) it is made without the prior consent or approval of the candidate or officeholder on whose behalf the expenditure was made; or
(B) it is made in connection with a measure, but is not a political contribution to a political committee supporting or opposing the measure.
1 Tex. Admin Code § 20.1. Plaintiffs contend that because their political committee “plans to coordinate its recall activity with other committees ‘supporting or opposing the measure,’ this results in a contribution to the other committee.”
However, as Defendants explain in their Reply, under Texas law a “direct campaign expenditure only committee” is not a political committee that only makes “direct campaign expenditures.”
(c) Plaintiffs’ Proposed Political Committee
Although it appears that Plaintiffs’ proposed political committee may organize and register as a “direct campaign expenditure only committee,” whether it will do so is unclear. Plaintiffs have disclaimed any intention to coordinate their activities with any person who is a candidate for, or who plans to be a candidate for, the offices for which they plan to seek a recall.
2. Plaintiffs Have Not Established Standing to Challenge S 253.09Mb)
Because the court cannot discern the nature of Plaintiffs’ proposed political committee, the court cannot determine whether political contributions to that committee would fall within the realm of activity that Defendants are barred from enforcing under the Texans for Free Enterprise Injunction. Moreover, although
§ 253.094(b) prohibits political contributions in connection with a recall election, without any indication from Plaintiffs that their committee would organize and register as a “direct campaign expenditure only committee” the court cannot determine whether political contributions to that committee would be permissible under Texans for Free Enterprise or would be lawfully proscribed in furtherance of Texas’s interest in preventing circumvention of its ban on corporate contributions to candidates.
Accordingly, the court concludes that Plaintiffs have failed to plead a justiciable controversy with regard to their claims that § 253.094(b) prohibits them from-lawfully “raising and spending funds in support of recall petitions”
Plaintiffs also allege that § 253.094(b) is overbroad.
Even if the court were to accept Plaintiffs’ argument that the Texans for Free Enterprise Injunction does not enjoin Defendants from enforcing § 253.094(b), in light of Plaintiffs’ failure to indicate whether they will engage in their proposed conduct if required to comply with Texas’s political committee disclosure requirements, the court is not convinced that Plaintiffs have demonstrated a “ ‘practical likelihood that a controversy will become real.’ ” Hoyt, 878 F.Supp.2d at 731 (quoting Shields, 289 F.3d at 835). As explained in § IV.A.l(c) above, Plaintiffs have testified that they are opposed to registering their proposed political committee in any form and have suggested that they may not organize a political committee at all if required to comply with Texas’s treasurer-appointment and disclosure requirements.
In light of Plaintiffs’ equivocation about whether they would in fact engage in their proposed conduct if doing so would subject them to Texas’s political committee disclosure requirements, and because Plaintiffs have not developed the factual basis for standing with sufficient particularity, the court is not convinced that Plaintiffs have met their burden to demonstrate either a serious interest in acting contrary to § 253.094(b) or a threat of enforcement beyond mere speculation. See Lujan, 112 S.Ct. at 2136-37 (holding that “[t]he party invoking federal jurisdiction bears the burden of establishing” each of the elements of standing “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation,” which, “[i]n response to a summary judgment motion,” requires the plaintiff to “set forth by affidavit or other evidence specific facts” to establish standing); cf. Eyikogbe v. Texas State Dep’t of Highways & Pub. Transp., 990 F.2d 1252 (5th Cir. 1993) (“Under Rule 56, a district court is not required to scour the record in search of evidence to support the non-movant; nor is the district court required to concoct arguments in opposition to the movant.”). Accordingly, the court concludes that Plaintiffs have not
B. Plaintiffs’ Challenge to § 253.096
Plaintiffs bring facial and as-applied challenges to § 253.096.
Plaintiffs allege that under § 253.096, “[i]f an incorporated church desires to circulate recall petitions or otherwise speak in favor of a recall election or against a recall election, it can only do so by forming a measures-only political committee.”
1. Plaintiffs’ Standing to Challenge § 253.096
Defendants argue that Plaintiffs lack standing to challenge § 253.096 because it does not apply to Plaintiffs’ proposed conduct.
(a) The Applicability of § 253.096 to Plaintiffs’ Proposed Recall-Related Activities
Emphasizing the interplay of §§ 253.094(a), 253.096, and 253.094(b) in the Texas Election Code’s regulatory scheme, Defendants state that § 253.094(a) “prohibits all political contributions by a corporation,” unless “the contribution is authorized by some other section of the Election Code.”
Relevant here, Election Code § 253.096 permits corporations to make political contributions “in connection with an election on a measure only to a political committee for supporting or opposing measures exclusively.” Because corporations are authorized under § 253.096 to make contributions to political committees in connection with a “measure,” and because a recall election is a type of “measure,” contributions to political committees in connection with a recall election would, at first glance, appear to be authorized by § 253.096. However, the more specific statute, § 253.094(b), which expressly prohibits corporate political contributions in connection with a recall, trumps the more general authority corporations are given in § 253.096 to make political contributions to support measures.76
Plaintiffs appear to acknowledge that § 253.094(b), rather than § 253.096, is the controlling provision in this case.
(b) Cook v. Tom Brown Ministries
In Cook a Texas appellate court instructed the El Paso City Clerk to decertify recall petitions after concluding that an incorporated church had made prohibited political and campaign contributions in connection with a recall election. 385 S.W.3d at 601-03, 608. The court in Cook found that an incorporated church “made campaign contributions from its own property in connection with a measure-only recall election without properly making the contributions to a measure-only committee” in violation of § 253.096.
Defendants have disavowed the Cook court’s interpretation of §§ 253.094(b) and 253.096.
Plaintiffs argue that “[t]he Attorney General wants this Court to accept his opinion on how the law should be interpreted and ignore binding precedent in Texas as to how the law is actually being
2. Plaintiffs’ have not established that they have standing to challenge § 253.096.
As noted above, Plaintiffs acknowledge that because they are prohibited from making corporate political contributions under § 253.094(b), they cannot take advantage of § 253.096’s authorization of campaign contributions “in connection with an election on a measure.”
Plaintiffs also allege that they intend to coordinate their “activities in connection with a measures-only issue in addition to recall petition matters.”
In addition, because Plaintiffs have presented no evidence or made any affirmative representation that they would file the affidavit necessary to designate their proposed political committee as a “direct campaign expenditure only committee,” the court need not consider whether, in light of the Fifth Circuit’s opinion in Texans for Free Enterprise, § 253.096 might apply to any “direct campaign expenditure only committee” Plaintiffs might form. Moreover, Plaintiffs have not alleged whether any political committee they might form by coordinating their efforts will constitute a “committee for supporting or opposing measures exclusively” under Texas law. See Tex. Elec.Code Ann. § 253.096 (West 2012); see also id. § 251.001(4) (defining “general-purpose committee” under Texas law); id. § 251.001(3) (defining “specific-purpose committee” under Texas law). Plaintiffs have simply failed to show that § 253.096 proscribes any of their proposed activity. The court therefore concludes that Plaintiffs have not met their burden to establish standing to challenge § 253.096.
C. Plaintiffs’ Challenge to § 253.094(a)
Plaintiffs allege that § 253.094(a) “is facially unconstitutional under the First Amendment to the United States Constitution to the extent it prohibits corporations from making political contributions in connection with a recall election or, in the alternative, § 253.094(a) is unconstitutional as applied to Plaintiffs.”
1. Plaintiffs’ Standing to Challenge § 25S.09ffa)
Section 253.094(a) was recently declared unconstitutional by the Fifth Circuit to the extent that it barred political contributions to a “direct campaign expenditure only committee.” Texans for Free Enterprise, 732 F.3d at 537-38. The resulting injunction, discussed in § IV.A above, enjoins Defendants from enforcing § 253.094(a) “by directly or indirectly prohibiting contributions to a direct campaign expenditure-only committee for the purpose of making direct campaign expenditures.”
Defendants argue that because Plaintiffs “disclaim any intention to coordinate their activities with any person who is a candi
Moreover, as Defendants point out, the Texas Ethics Commission has promulgated rules to conform with the holding in Texans for Free Enterprise.
2. Plaintiffs have not met their burden to establish standing to challenge § 253.09f (a).
As explained in §§ IV.A.l(c), PV.A.2, and IY.B.2 above, Plaintiffs have not alleged that they intend to file the affidavit necessary to register their proposed political committee as a “direct campaign expenditure only committee.” Although Plaintiffs testified to their willingness to file “something with the Ethics Commission” stating that they would not coordinate with any candidate,
D. Plaintiffs’ Challenges to §§ 251.001(12), 252.001, and 253.031(b)
Plaintiffs allege that § 251.001(12) “impose[s] political committee status” on them, requiring them to appoint a campaign treasurer and triggering Texas’s political committee disclosure requirements, which, Plaintiffs argue, “unconstitutionally infringes free speech.”
Plaintiffs allege that if they “work together for the primary purpose of accepting political contributions and making political expenditures^] they are a political committee under Texas Law.”
Plaintiffs contend that “[pjolitieal committee status and its attendant burdens— which follow from the [treasurer] appointment requirement contained in § 252.001—are unconstitutional (I) facially with respect to political committees active on measures and ... (ii) as applied to groups with minimal financial activity such as Plaintiffs.”
1. The Level of Scrutiny to be Applied
Because § 251.001 simply defines the terms used in other provisions of the Election Code, the level of scrutiny to be applied to § 251.001 depends upon the level of scrutiny to be applied to those other challenged statutes. See Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 137 (2d Cir. 2014). Addressing a challenge to Vermont’s definition of “political committee,” the Second Circuit explained in Vermont Right to Life:
A defined term such as “political committee” is simply a useful drafting tool. The definition sets out the domain of a series of separate statutory provisions. For example, the statute currently defines “political committee” in section 2901(13), then subjects every “political committee” to disclosure requirements in section 2964. The statute could be rewritten to dispense with the defined term “political committee” by making the disclosure requirements a standalone provision. The same process could be followed with every other provision, including the contribution limitations in section 2941(a)(4). This process would not alter the substance of the statute, and the resulting statute likely would be unwieldy; it would be more difficult to apply and review. But it would lack a “political committee” definition that could be subjected to the type of challenge envisioned by [the plaintiffs].
It is the challenged regulation, not the [political committee] definition, therefore, that determines what level of scrutiny should apply.
Id. Here, the conduct-regulating provisions that Plaintiffs challenge are §§ 252.001 and 253.031(b) of the Texas Election Code.
Plaintiffs argue that the treasurer-appointment requirements of §§ 252.001 and 253.031 are a prior restraint on speech.
First, and foremost, the treasurer-appointment requirement is. a disclosure requirement: all that the provision requires is that a general-purpose committee take simple steps to formalize its organizational structure and divulge additional information to the government. And ... general-purpose committees remain fully in control of their compliance with the treasurer-appointment requirement. No external factor limits the Committee’s ability to speak.... Accordingly, a lower level of scrutiny is appropriate because any limit on speech created by the requirement arises solely from the committee’s own choice to not provide information to the government.
Second, to the extent we still have concerns regarding prior restraints in the campaign-finance context, those concerns can be addressed through the existing constitutional test for disclosure requirements.
Id. at 439 (footnote omitted) (citations omitted); see also Vermont Right to Life, 758 F.3d at 137 (“[The plaintiff] highlights the following obligations that apply to an organization once it is defined as a political committee: registration, recordkeeping necessary for reporting, and reporting requirements. It asserts these are the very burdens that are onerous as a matter of law. These requirements amount to the establishment of a disclosure regime.” (citations omitted) (internal quotation marks omitted)).
“Disclosure and organizational requirements receive a further lessened level of scrutiny [than either expenditure limitations or contribution limitations].” Catholic Leadership, 764 F.3d at 424. “To defend disclosure and organizational requirements, the government must show a ‘sufficiently important governmental interest that bears a substantial relation’ to the requirement.” Id. (quoting Speech-Now.org v. FEC, 599 F.3d 686, 696 (D.C.Cir. 2010) (en banc)).
2. Sufficiently Important Governmental Interest
The Fifth Circuit has recognized that “Texas has a sufficiently important interest to justify the constitutionality of the treasurer-appointment requirement,” explaining that
the public has an interest in knowing who is speaking about a candidate and who is funding that speech, no matter whether the contributions were made toward administrative expenses or independent expenditures. Further, requiring disclosure of such information deters and helps expose violations of other campaign finance restrictions such as those barring contributions from foreign corporations or individuals. These are sufficiently important governmental interests to justify requiring [the plaintiffs] to organize and report ... as a political committee.
Id. at 440 (quoting SpeechNow.org, 599 F.3d at 698). The Fifth Circuit also recognized Texas’s “informational interest in ensuring the smooth functioning of its campaign finance disclosure scheme.” Id. at 441. In holding that the treasurer-appointment requirement was properly tailored, the Fifth Circuit observed that “any burden created by the treasurer-appointment requirement-essentially filling out and putting a three-page form that asks for basic information in the mail-appears to be exceedingly minimal.” Id. at 440 (footnote omitted).
Plaintiffs allege that “[t]here are no candidates involved in measures-only recall
Defendants argue that “[b]y its very nature, advocating for an elected official to be recalled entails advocating in opposition of an identified person, for the purpose of holding an election to recall that person from his or her position” and that “[t]his type of political committee advocacy is precisely the type of activity that courts have found may be regulated through political committee disclosure requirements.”
The court is not convinced that the State’s informational interest in disclosure is limited to advocacy for or against an identified candidate. See, e.g., Buckley v. Am. Constitutional Law Found., Inc., 119 S.Ct. at 647 (“[T]he State and supporting amici stress the importance of disclosure as a control or check on domination of the initiative process by affluent special interest groups. Disclosure of the names of initiative sponsors, and of the amounts they have spent gathering support for their initiatives, responds to that substantial state interest.” (citations omitted) (internal quotation marks omitted)); Family PAC v. McKenna, 685 F.3d 800, 806 (9th Cir. 2012) (“We have repeatedly recognized an important (and even compelling) informational interest in requiring ballot measure committees to disclose information about contributions.”); Human Life of Washington Inc., 624 F.3d at 1005 (upholding disclosure requirements in the context of ballot initiatives, noting that the considerations justifying disclosure requirements in candidate elections “ ‘apply just as forcefully, if not more so, for voter-decided ballot measures’ ” (quoting California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir. 2003))).
Moreover, Texas has a sufficient “informational interest in ensuring the smooth functioning of its campaign finance disclosure scheme.” Catholic Leadership, 764 F.3d at 441; see also Doe v. Reed, 561 U.S. 186, 130 S.Ct. 2811, 2819-20, 177 L.Ed.2d 493 (2010) (“The State’s interest in preserving the integrity of the electoral process is undoubtedly important. States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally---- [T]he State’s interest in preserving electoral integrity extends more generally to promoting transparency and accountability in the electoral process, which the State argues is essential to the proper functioning of a democracy.”); Buckley v. Valeo (“Buckley”), 424 U.S. 1, 96 S.Ct. 612, 658, 46 L.Ed.2d 659 (1976) (“[N]ot least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations.... ”). Accordingly, the court concludes that Texas has a sufficiently important governmental interest for its treasurer-appointment and concomitant disclosure requirements.
3. Substantial Relation to the Government’s Interest
In determining whether a disclosure requirement bears a substantial relation to a sufficiently important governmental interest, the court looks to the burden imposed by the requirement. See Buck
Plaintiffs presented evidence to support their contention that the disclosure requirements imposed on political committee treasurers are onerous and burdensome.
Defendants contend that Plaintiffs’ “claim that Texas’fs] committee treasurer-appointment requirement is burdensome is meritless and belied by a review of what is required to actually ‘register.’ ”
This registration consists of appointing a person (who does not have to be a lawyer, accountant or any other professional) as a treasurer of the committee; this requirement (and any attendant disclosure requirements) is triggered only if the committee expends or contributes more than $500. Depending on whether a committee is required to register as a specific—or general-purpose committee, this registration process requires completion of a simple 2 or 3 page form available on [the Texas Ethics Commission]^ website. [The Texas Ethics*627 Commission] charges no fee to file the treasurer appointment and any person, regardless of whether they are a lawyer or lay person, can complete and submit the form.123
Defendants argue that the testimony of Plaintiffs’ witness “regarding what he personally charges sophisticated political committees as a ‘set up’ charge ... is no evidence of a burden caused by the Texas registration requirement.”
Drawing all reasonable inferences in favor of Plaintiffs, the court is not persuaded that the requirements are so burdensome as to fail constitutional scrutiny. First, “disclosure thresholds, like contribution limits, are inherently inexact; courts therefore owe substantial deference to legislative judgments fixing these amounts.” Family PAC, 685 F.3d at 811; see also Worley v. Florida Secretary of State, 717 F.3d at 1238, 1251 (2013) (“Supreme Court and Circuit precedent has ‘consistently upheld organizational and reporting requirements against facial challenges,’ in part because crafting such disclosure schemes is better left to the legislature.” (quoting SpeechNow.org, 599 F.3d at 696)).
“In Buckley, the Supreme Court upheld a disclosure threshold after observing that it was not ‘wholly without rationality.’ ” Vermont Right to Life, 758 F.3d at 138-39 (quoting Buckley, 96 S.Ct. at 665). The challenged statutory provisions in Buckley required that records “be kept by political committees of the names and addresses of those who make contributions in excess of $10” and that “[i]f a person’s contributions to a committee or candidate aggregate more than $100, his name and address, as well as his occupation and principal place of business, [were] to be included in reports filed by committees and candidates with the Commission and made available for public inspection.” 96 S.Ct. at 665 (citations omitted). The appellants in Buckley contended “that the monetary thresholds in the record-keeping and reporting provisions lack[ed] a substantial nexus with the claimed governmental interests, for the amounts involved [were] too low even to attract the attention of the candidate, much less have a corrupting influence.” Id. The Court upheld the challenged provisions:
The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910. But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality.
In light of the considerable deference afforded to legislative judgments in setting disclosure thresholds, and the fact that several courts have upheld similar thresholds, the court does not conclude that Texas’s $500 treasurer-appointment and political committee disclosure requirements are wholly without rationality. Cf. Buckley, 96 S.Ct. at 665-66; Vermont Right to Life, 758 F.3d at 137-39; Worley, 717 F.3d at 1249-53; Family PAC, 685 F.3d at 808-11; Nat’l Org. for Marriage, 649 F.3d at 59-61.
Moreover, even without applying the wholly without rationality standard of deference, Plaintiffs’ as-applied challenge to Texas’s treasurer-appointment and political committee disclosure requirement fails. Cf. Worley, 717 F.3d at 1240, 1249-53 (holding that Florida’s political committee disclosure requirements applicable to political committees consisting of “two or more individuals who accept contributions of—or spend—more than $500 in a year to expressly advocate the election or defeat of a candidate or the passage or defeat of a ballot issue” survived exacting scrutiny, but “nevertheless find[ing] the discussion in [McKee] assessing disclosure thresholds [under the wholly without rationality standard] to be instructive” (analyzing Nat’l Org. for Marriage, 649 F.3d at 60)); Justice, 2013 WL 5462572, at *8-13 (suggesting that exacting scrutiny demands more than the deferential wholly without rationality standard).
The Fifth Circuit has observed that “Texas has excerpted small-scale general-purpose committee political activity from its registration requirements.” Catholic Leadership, 764.F.3d at 441. Here, although presented as a challenge “as applied to groups with minimal financial activity,” Plaintiffs have not limited the scope of their proposed activities and instead have consistently alleged that they intend to engage in additional recall elections
Because Plaintiffs have expressed an intention to engage in recurring, and perhaps even ongoing, political activity that they acknowledge will entail substantial in-kind political contributions, the court concludes that Plaintiffs’ as-applied challenge fails even without applying the wholly without rationality standard of deference to Texas’s $500 disclosure threshold. Considering the relative burden of compliance, the court further concludes that Texas’s treasurer-appointment and political committee disclosure requirements are substantially-related to Texas’s informational interests. Plaintiffs’ challenges to §§ 252.001 and 253.031(b), and their challenge to § 251.001(12)’s definition of “political committee” based on the alleged burdens imposed by §§ 252.001 and 253.031(b), therefore fail as a matter of law.
E. Plaintiffs’ Challenge to § 251.001(2)
Section 251.001(2) defines “contribution” to mean
a direct or indirect transfer of money, goods, services, or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a transfer. The term includes a loan or extension of credit, other than those expressly excluded by this subdivision, and a guarantee of a loan or extension of credit, including a loan described by this subdivision. The term does not include:
(A) a loan made in the due course of business by a corporation that is legally engaged in the business of lending money and that has conducted the business continuously for more than one year before the loan is made; or
(B) an expenditure required to be reported under Section 305.006(b), Government Code.
Tex. Elec.Code Ann. § 251.001(2) (West 2012). The court has already concluded that Plaintiffs have standing to challenge § 253.031(b), which incorporates § 251.001(2)’s “contribution” definition to trigger Texas’s treasurer-appointment requirement. Because § 253.031(b) requires a political committee to appoint a treasurer before it “accept[s] political contributions totaling more than $500,” and the term
Plaintiffs allege that § 251.001(2) “is unconstitutionally vague and overbroad.”
[i]n a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); see also United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009). “But campaign-finance laws operate in a core free-speech zone and directly target protected speech.” Wisconsin Right To Life, 751 F.3d at 836. “In this context, we don’t need to ask whether the challenged law reaches a substantial amount of protected speech; by definition, it does, because all political speech is protected.” Id. Accordingly, alleged overbreadth in the campaign-finance context is a “more-focused inquiry,” because the “ ‘government may regulate in th[is] area only with narrow specificity.’ ” Id. (quoting Buckley, 96 S.Ct. at 645 n. 48).
Of the conduct-regulating statutes challenged by Plaintiffs that utilize § 251.001(2)’s “contribution” definition, § 253.094 and § 253.031 regulate “political contributions,” while § 253.096 regulates “campaign contributions.”
Thus, although Plaintiffs allege that the conduct-regulating statutes that they challenge “reach[] all expressive activity of Plaintiffs and parties not before the Court that encourages people to sign or otherwise support recall petitions,”
The thrust of Plaintiffs’ challenge to § 251.001(2) is their argument that the statute is overbroad because the phrase “indirect transfer of ... any other thing of value” is vague, and Plaintiffs cannot determine whether their proposed conduct would constitute a prohibited political or campaign contribution.
Plaintiffs argue that “[n]o one can be certain what an ‘indirect transfer of money’ is or how far it might reach.”
The Election Code does not define goods, services, or “thing of value.” It is clear that [Word of Life Church (“WOL Church”) ], as a corporation, through the use of its website, promoted the circulation of recall petitions, created a portal whereby volunteers could register through WOL Church to circulate petitions, provided the facility and personnel to assist in the signing and circulation of the recall petitions, and notified the public that recall petitions were available for signing at WOL Church. The evidence establishes that WOL Church made campaign contributions from its own property in connection with a measure-only recall election without properly making the contributions to a measure-only committee, Tex. Elec.Code Ann. § 253.096 (West 2010), and that WOL Church, a corporation, made a political contribution in connection with a recall election, including the circulation and submission of petitions to call an election, and failed to make such contribution to a political committee in violation of Sections 253.096 and 253.094(b) of the Election Code. Tex. Elec.Code Ann. §§ 253.096 (West 2010), 253.094(b) (West Supp. 2011).
Cook, 385 S.W.3d at 603.
The documents produced by Plaintiffs reflect that the parties in Cook were specifically concerned with the value derived from use of the incorporated church’s website. In Cook the mayor of El Paso alleged that WOL Church, a corporation, coordinated with other churches and an already existing political committee to promote a recall election.
Thereafter, in a posting on WOL Church’s website, the pastor of WOL Church “stated that he and EPTFV, the specific-purpose committee, had decided to join in the recall efforts” although EPTFV had not filed any forms “to ‘repurpose’ the committee ... for the purpose of supporting a measure to recall officeholders.”
Based on the limited facts before the court it appears that the parties and the court in Cook were concerned with the value that WOL Church provided through the use of its corporate website. The court cannot conclude, as Plaintiffs apparently contend, that “postings of speech on corporate websites” can never constitute a thing of value. Nor can the court conclude that it is impossible to determine whether particular postings constitute an indirect transfer of a thing of value to a political committee. Indeed, when a corporation coordinates with a political committee, use of the corporation’s website either by or for the committee means that the committee may forego the cost of establishing and maintaining its own website.
As noted by Defendants, absent coordination with a political committee, however, promotion of recall efforts on a church’s website does not constitute a political contribution.
The expenditure of resources at the candidate’s direction for a fundraising event at a volunteer’s residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food. Similarly, travel undertaken as a volunteer at the direction of the candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate’s campaign or at the direction of the candidate or his staff forecloses an avenue of abuse without limiting actions voluntarily undertaken by citizens independently of a candidate’s campaign.
Buckley, 96 S.Ct. at 643. Similarly, the hallmark for determining whether a particular activity constitutes an indirect transfer to a political committee is coordination with that committee. Cf. Tex. Ethics Comm’n, Ethics Advisory Op. No. 503
Plaintiffs have not identified how their proposed political committee would be similar to or different from the specific-purpose committee in Cook. Nor have they identified the substance of their intended “posting of information on [their] websites” beyond their intention to “[p]ro-mot[e] recall efforts.”
For these reasons the court concludes that persons of ordinary intelligence can understand whether their activities constitute a “thing of value” in the particular circumstances and whether they might, through coordination with a political committee, make an indirect transfer with the specific intent that it be used in connection with a recall.
Plaintiffs further attempt to illustrate § 251.001(2)’s alleged vagueness through a litany of hypothetical questions:
Does an “indirect transfer” include a speech given by a corporation’s chief executive officer? Does it include a speech given by a corporation’s employee? Does it reach a notice posted on a bulletin board in a corporation’s break room that encourages employees to support or oppose a recall effort? Does it matter who authored the notice? Does it matter whether the corporation gave permission for the notice to be posted? No one knows, because while a “direct” transfer has an obvious meaning, the meaning of “indirect” transfer is unknown.148
However, “[speculation about possible vagueness in hypothetical situations not before the [c]ourt will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications.” Texas Med. Providers, 667 F.3d at 580 (quoting Hill, 120 S.Ct. at 2498 (internal quotation marks omitted)). “Indeed, hypothetical situations, speculation, and theoretical possibilities are ‘of no due pro
Because the conduct-regulating statutes challenged by Plaintiffs only regulate (1) transfers (2) of a thing of value (3) to candidates or political committees (4) made with the specific intent that the recipient use it in connection with a recall, and because a person of ordinary intelligence can generally understand whether they are making an indirect transfer to a political committee by examining whether they coordinated with that committee with regard to a particular activity, the court concludes that § 251.001(2)’s definition of “contribution” is neither vague nor over-broad.
V. Conclusions and Order
For the reasons explained in §§ IV.A, B, and C above, the court concludes that Plaintiffs have failed to meet their burden to establish standing to challenge §§ 253.094(b), 253.096, or 253.094(a). Plaintiffs challenges to §§ 253.094(b), 253.096, and 253.094(a) are therefore DISMISSED for lack of subject matter jurisdiction.
For the reasons explained in § IV.D and E above, the court concludes that Plaintiffs’ challenges to §§ 251.001(12), 252.001, 253.031(b), 251.001(2), and 251.001(6) fail as a matter of law. Defendants are therefore entitled to summary judgment on those claims.
Accordingly, Defendants’ Motion for Summary Judgment (Docket Entry No. 52) is GRANTED IN PART, Plaintiffs’ Motion for Summary Judgment (Docket Entry No. 53) is DENIED, and Plaintiffs’ Motion for Temporary Restraining Order and Expedited Preliminary Injunctive Relief (Docket Entry No. 2) is DENIED.
. Plaintiffs’ Second Amended Complaint and Application for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment ("Second Amended Complaint”), Dock
. Second Amended Complaint, Docket Entry No. 36, p. 2 ¶¶ 1.1-1.3; Defendants’ Motion for Summary Judgment, Docket Entry No. 52, p. 9.
. Motion for Preliminary Injunction, Docket Entry No. 2, p. 2 ¶ 1; see also Second Amended Complaint, Docket Entry No. 36, p. 11 ¶ 4.10; Affidavit of Pastor Charles Flowers in Support of Motion for Preliminary Injunction, attached to Motion for Preliminary Injunction, Docket Entry No. 2-2, p. 2 ¶ 4,
. Motion for Preliminary Injunction, Docket Entry No. 2, p. 2 ¶ 2; see also Second Amended Complaint, Docket Entry No. 36, p. 10114.6.
. Motion for Preliminary Injunction, Docket Entry No. 2, pp. 2-3 ¶ 5; see also Second Amended Complaint, Docket Entry No. 36, p. 10 ¶ 4.6, p. 11 ¶ 4.10.
. Motion for Preliminary Injunction, Docket Entry No. 2, p. 213.
. Id. ¶ 4; see also Second Amended Complaint, Docket Entry No. 36, p. 10 ¶¶ 4.6-4.7.
. Second Amended Complaint, Docket Entry No. 36, p. 3 ¶ 1.13; Defendants’ Answer to Plaintiffs’ Second Amended Complaint (“Answer”), Docket Entry No. 44, p. 3 ¶ 1.13; see also Tex. Gov’t Code Ann. § 571.061(a)(3) (West 2012).
. Second Amended Complaint, Docket Entry No. 36, pp. 11-13 ¶ 5.1; id. at 13-16 ¶¶5.2-5.3; see also Plaintiffs Joint Heirs Fellowship Church's Responses to Defendants’ First Set of Interrogatories ("Joint Heirs’ Interrogatory Responses”), attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-19, pp. 2-3; Plaintiff’s Houston’s First Church of God’s Responses to Defendants’ First Set of Interrogatories ("Houston’s First Interrogatory Responses”), attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-20, pp. 2-3; Plaintiff's Faith Outreach international Center’s Responses to Defendants’ First Set of Interrogatories ("Faith Outreach International’s Interrogatory Responses”), attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-21, pp. 2-3; Affidavit of Pastor Don Bergstrom in Support of Motion for Preliminary Injunction, attached to Motion for Preliminary Injunction, Docket Entry No. 2-1, pp. 2-3 ¶ 5; Affidavit of Pastor Charles Flowers in Support of Motion for Preliminary Injunction, attached to Motion for Preliminary Injunction, Docket Entry No. 2-2, pp. 2-3 ¶ 7; Affidavit of Pastor John McCrutcheon in Support of Motion for Preliminary Injunction, attached to Motion for Preliminary Injunction, Docket Entry No. 2-3, pp. 2-3 ¶ 5.
. Plaintiffs’ Original Complaint and Application for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Declaratory Judgment ("Original Complaint”), Docket Entry No. 1; Motion for Preliminary Injunction, Docket Entry No. 2; see also Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunctive Relief, Docket Entry No. 3.
. Order, Docket Entry No. 4, p. 1; Hearing Minutes and Order, Docket Entry No. 5.
. Hearing Minutes and Order, Docket Entry No. 5.
. Defendants’ Response in Opposition to Motion for Preliminary Injunction ("Defendants' Response in Opposition”), Docket Entry No. 7.
. Plaintiffs’ First Amended Reply in Support of Motion for Preliminary Injunctive Relief ("Plaintiffs’ First Amended Reply”), attached to Plaintiffs’ Unopposed Motion for Leave to File Plaintiffs’ First Amended Reply in Support of Motion for Preliminary Injunctive Relief ("Plaintiffs’ Motion for Leave to File Amended Reply”), Docket Entry No. 9-1.
. Plaintiffs’ Proposed Findings of Fact and Conclusions of Law, Docket Entry No. 10.
. Hearing Minutes and Order, Docket Entry No. 16; see also Transcript of Injunction Hearing Before The Honorable Sim Lake ("Transcript of Injunction Hearing”), Docket Entry No. 26; Joint Status Report and Proposed Scheduling Order, Docket Entry No. 18, p. 5.
. Hearing Minutes and Order, Docket Entry No. 16; see also Transcript of Injunction Hearing, Docket Entry No. 26.
. Joint Status Report and Proposed Scheduling Order, Docket Entry No. 18.
. Plaintiffs’ First Amended Complaint and Application for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment ("First Amended Complaint”), Docket Entry No. 17.
. Order, Docket Entry No. 19.
. Defendants’ Proposed Findings of Fact and Conclusions of Law on Plaintiffs’ Motion for Preliminary Injunction, Docket Entry No. 24; Defendants' Supplemental Brief in Opposition to Motion for Preliminary Injunction, Docket Entry No. 23.
. Defendants’ Motion to Dismiss, Docket Entry No. 25.
. Plaintiffs’ Supplemental Reply Brief, Docket Entry No. 29.
. See Plaintiffs’ Supplemental Status Report as to Progress on Agreed Partial Declaratory Judgment, Docket Entry No. 30; Defendants’ Response to Plaintiffs’ Supplemental Status Report, Docket Entry No. 31; see also Hearing Minutes and Order, Docket Entry No. 16; Joint Status Report and Proposed Scheduling Order, Docket Entry No. 18, pp. 1-4.
. Second Amended Complaint, Docket Entry No. 36.
. Plaintiffs’ Response to Motion to Dismiss, Docket Entry No. 40.
. Answer, Docket Entry No. 44.
. Defendants’ Motion for Summary Judgment, Docket Entry No. 52; Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53.
. "Defendants” Response in Opposition to Plaintiffs’ Motion for Summary Judgment ("Defendants’ Response”), Docket Entry No. 58; Plaintiffs’ Response to Defendants’ Motion for Summary Judgment ("Plaintiffs' Response”), Docket Entry No. 59.
.Defendants’ Reply in Support of Motion for Summary Judgment ("Defendants’ Reply”), Docket Entry No. 60; Plaintiffs’ Reply in Support of Motion for Summary Judgment ("Plaintiffs’ Reply”), Docket Entry No. 61.
. Second Amended Complaint, Docket Entry No. 36, pp. 36-37.
. Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53, p. 19.
. "Defendants” Motion for Summary Judgment, Docket Entry No. 52, p. 26.
. Id. at 12. .
. The definition of "political contribution” in § 251.001(5) incorporates the definition of "campaign contribution” in § 251.001(3), which in turn incorporates the definition of “contribution” in § 251.001(2).
. As noted by the Fifth Circuit, "It is important not to conceive of expenditures and contributions in opposition to each other. Rather, contributions are best thought of as a subset of expenditures: all contributions are expenditures, but not all expenditures are contributions.” Catholic Leadership, 764 F.3d 409 at n. 7.
. The definition of "political expenditure” in § 251.001(10) incorporates the definition of "campaign expenditure” in § 251.001(7), which in turn incorporates the definition of "expenditure” in § 251.001(6).
. Defendants’ Response in Opposition, Docket Entry No. 7, pp. 10-11; see also Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 11; Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53, pp. 30, 38.
. Defendants’ Motion for Summary Judgment, Docket Entry No. 52, p. 21.
. Id.
. Id.
. Second Amended Complaint, Docket Entry No. 36, pp. 11-16 ¶¶ 5.1-5.3.
. Id. at 26 ¶ 10.7.
. Defendants’ Motion for Summary Judgment, Docket Entry No. 52, pp. 21-22.
. As noted above, “the circulation and submission of a petition to call an election” may constitute a political contribution and a recall election is a measure. See Tex. Elec.Code Ann. § 251.001(19) (West 2012), § 253.094(b) (West Supp. 2014).
. Second Amended Complaint, Docket Entry No. 36, pp. 11-16 ¶¶ 5.1-5.3.
. Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 13 ("For purposes of the instant case, ... a corporation in Texas cannot give money, goods or services to a candidate-or to a group that qualifies as a political committee, if the intent of the corporation in giving that [] money, good or service [is that it be] used in connection with a recall election.”).
. Id. at 22-23, 26-28.
. Agreed Final Judgment and Permanent Injunction at 3-4 Texans for Free Enterprise v. Texas Ethics Commission, No. 1:12-cv-0845-LY (W.D.Tex. Dec. 20, 2013) ("Texans for Free Enterprise Injunction”), attached as Exhibit 1 to Defendants’ Motion for Summary Judgment, Docket Entry No. 52-1.
. Defendants’ Motion for Summaiy Judgment, Docket Entry No. 52, pp. 22-23.
. Plaintiffs’ Response, Docket Entry No. 59, p. 14.
. Id.
. Id.
. Id. at 15-18; see also Joint Heirs' Interrogatory Responses, attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-19, p. 8; Houston’s First Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-20, p. 8; Faith Outreach International’s Interrogatory Responses, attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-21, p. 8.
. Id.
. Id.
. Defendants' Reply, Docket Entry No. 60, pp. 8-11
. According to Defendants, "the term ‘direct campaign expenditure only committee' is a new term of art—not previously found in the Texas Election Code or [Texas Ethics Commission] Rules—that came into existence as a direct result of the Texans for Free Enterprise lawsuit.” Defendants’ Reply, Docket Entry No. 60, pp. 8-9. "[A] ‘direct campaign expenditure only committee’ was defined in Texans for Free Enterprise to mean a political committee that ‘does not make any contributions to candidates or their official committees.' ” Id. at 9 (quoting Texans for Free Enterprise, Til F.3d at 536). Accordingly, "pursuant to Texans for Free Enterprise’s controlling definition of the newly-created term 'direct campaign expenditure only committee,’ a ‘direct campaign expenditure only committee’ that registers with [the Texas Ethics Commission] as such can contribute funds to other political committees, so long as that political committee is not connected with a candidate.” Id.
. Joint Heirs’ Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-19, p. 7; Houston's First Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-20, p. 7; Faith Outreach International’s Interrogatory Responses, attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-21, p. 7.
. Second Amended Complaint, Docket Entry No. 36, pp. 29-31 ¶¶ 10.36-10.54. Plaintiffs’ challenge to Texas’s political committee disclosure requirements is discussed in detail below.
. See Transcript of Injunction Hearing, Docket Entry No. 26, pp. 86, 102-03, 122. The pastors for each of the plaintiff churches testified as follows:
Q. [by Defendants’ counsel] And would you have any objection to filing something with the Ethics Commission that stated that on the record, that you would agree not to—that your organization agrees not to engage in any activity with the coordination of the candidate?
A. [by Pastor Flowers of plaintiff Faith Outreach International Center] I wouldn’t have any objection to that.
Id. at 86:9-13.
Q. [by Defendants’ counsel] And would you be willing to file something like a sworn statement that says that your church would agree that it is not going to give any money or make any kind of expenditures from its own funds in support of a particular candidate in coordination with a candidate? Would you be willing to agree to something like that and file a statement to that effect?
A. [by Pastor Bergstrom of plaintiff Houston's First Church of God] I would be willing to do that.
Id. at 102:20-103:1.
Q. [by Defendants' counsel] Would you be willing—you testified a moment ago that you don’t intend to coordinate with the candidates, and that really means not only giving money to candidates, but, for example, having a candidate call you up and say, "It would be really great if you got your church on board and starting gathering petitions for me.” You don’t intend to do any of that kind of activity, do you?
A. [by Pastor McCrutcheon of plaintiff Joint Heirs Fellowship Church] No.
Q. Okay. Would you be willing to swear that you wouldn't do any of that kind of activity or coordinate with a group who does that kind of activity?
A. Coordinate with a group?
Q. Coordinate with some other group. Let’s say some other group is helping out a candidate because the candidate asked them to. Would you be willing to agree that you wouldn't help out that other group?
THE COURT: You won’t coordinate with any group that is supporting a specific candidate? Would you agree to that?
THE WITNESS: Yes.
Id. at 122:2-20.
. See id. at 75, 103, 124-25. The pastor for each of the plaintiff churches testified as follows:
Q. [by Defendants' Counsel] Other than the costs that we talked about associated with having to register as a political committee, do you have any other objections yourself to having to register as a political committee, if you form a group that is qualified as one?
A. [by Pastor Bergstrom of plaintiff Houston’s First Church of God] Personally, I believe the church should have the freedom to be what the church is supposed to be, to be the moral compass of our communities, of our state. And I believe in a perfect world, we would have the right to do that. Q. Well, let me be clear. So you will be able to do it. You would just have to file some paperwork if you did it in the form of political committees. So do you understand that aspect?
A. And part of my objection to the political committee is the expense.
Q. So other than—that’s what I’m trying to get at. Other than the expense, is there something else that you object to?
A. Personally, just my own convictions, I would object to our having to do that.
Q. You feel that churches shouldn't have to do that?
A. Correct.
Id. at 103:2-21.
Q. [by Defendants' counsel] You testified earlier that you think it would be too expensive to file paperwork as a political committee, correct?
A. [by Pastor McCrutcheon of plaintiff Joint Heirs Fellowship Church] Uh-huh.
Q. Do you have any other objections to having to file paperwork as a political committee, if your church qualified as part of one?
A. I don’t—I wouldn’t even want to be part of a political committee at all.
Q. Well, but you do want to have discussions with other churches in an attempt to influence a recall election, right? That is what your testimony is today, correct?
A. I thought, you know—I guess that is where I was somewhat confused at times.
Q. Let me ask you: Why wouldn’t be you what to do that? Why wouldn’t be want to be considered a political committee, other than the cost issue?
A. Cost is one of the main things, but also I try to—the other part of it is there is so much—I feel that is an intrusion—
Q. So you just don't want to basically have to file more paperwork with the government? Would that be a way of saying that? A. I guess you could say that.
Id. at 123:13-124:10.
Q. [by Plaintiffs' counsel] Do you want to become a political committee?
A. [by Pastor Flowers of plaintiff Faith Outreach International Center] No.
Q. Why not?
A. That’s a good question. I think that just as other entities within society have the freedom to act, freedom to speak—
Q. Like what?
A. Much like the press. I don’t know of any hoops that they have to jump through, any kind of arrangements they have to get involved in in order to engage in these issues. And the freedom of speech, especially the freedom of the church to operate under the parameters that was given in scripture should not be in any way impinged or hindered by all of these activities and moneys that have to be spent and things that have to be said and done along those lines.
Id. at 75:4-18.
. See, e.g., id.; see also id. at 86:14-88:16 (discussing the costs associated with forming a political committee and mentioning that it would be “cost prohibitive” to do so); id. at 93:3-23 (expressing unwillingness to form a political committee because fundraising for the committee “would be a complete distraction” from the church’s efforts "to rebuild a hospital in Kenya”); id. at 115:2-9 (stating in reference to the costs associated with forming a political committee that even "[s]ixty dollars would have an effect on [the] church” and that in light of those costs "it seems like [the church is] going to be left out of the game if [it] ha[s] to [set up a measures-only political committee]”).
.See Defendants' Answers to Plaintiffs' Interrogatories, attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-24, p. 12 ("To the extent Plaintiffs' challenge the prohibition on corporations making contributions to political committees that then contribute directly to candidates, courts have recognized the government’s interests in preventing corporations from using committees as a ‘pass through’ to circumvent lawful prohibitions on direct contributions to candidates, and these latter prohibitions are based in part on the government’s legitimate anti-corruption interests.” (citing Catholic Leadership Coal, of Texas v. Reisman, No. A-12-CA-566-SS, 2013 WL 2404066 (W.D.Tex. May 30, 2013), aff'd in part and rev’d in part, 764 F.3d 409 (5th Cir. 2014))); id. at 15.
. Second Amended Complaint, Docket Entry No. 36, pp. 11-16'¶¶ 5.1-5.3.
. See Second Amended Complaint, Docket Entry No. 36, p. 33 ¶ 10.65.
. Plaintiffs have had two opportunities to create a fact issue on standing, both in their original affidavits attached to their Motion for Preliminary Injunction and in their subsequent affidavits attached to their Motion for Summary Judgment. In none of Plaintiffs’ evidence or briefing do they ever indicate that they would be willing to coordinate if required to comply with Texas’s political committee disclosure requirements, nor do they make any indication of how they intend to register or organize their proposed political committee within the framework provided by the Texas Election Code beyond their argument that their activities would "take them outside the definition of a direct campaign expenditure-only committee.” Plaintiffs’ Reply, Docket Entry No. 59, p. 14.
.Plaintiffs also argue that they can demonstrate a credible threat of enforcement because § 253.094(b) has “already been enforced against other churches and individuals in Texas for allegedly doing some of the same things the Plaintiffs seek to do here.” Second Amended Complaint, Docket Entry No. 36, p. 23 ¶ 8.1. Plaintiffs reference enforcement actions brought by the mayor and district attorney of El Paso. Id. at 23-24 ¶¶ 8.2-8.8. Defendants argue that
[t]o the extent Plaintiffs assert that they have standing because some government other than [the Texas Ethics Commission] might enforce § 253.094 against them, Plaintiffs have cited no authority to support the proposition that an injunction issued against [the Texas Ethics Commission] here would be in any way effective to redress any claimed injury related to enforcement of the
Election Code by non-parties to this suit. Defendants’ Reply, Docket Entry No. 60, p. 7 n. 1; see also Defendants' Response, Docket Entry No. 58, p. 10; cf. Hoyt, 878 F.Supp.2d at 743 ("The Court is at a loss to see how granting an injunction against Cook would redress Plaintiffs' injury. A ruling against Cook in this case would operate only against Cook; it would not operate to prevent non-party citizens from bringing suit to enjoin Plaintiffs from circulating recall petitions in the future.”). The court agrees with Defendants that Plaintiffs’ alleged fear of enforcement by parties not before the court does not establish "a [case or] controversy as against [Defendants].” Defendants’ Response, Docket Entry No. 58, p. 10.
. See Second Amended Complaint, Docket Entry No. 36, pp. 36-37 ("Texas Election Code § 253.096 is unconstitutional under the First Amendment to the United States Constitution as applied to Plaintiffs [.]”); id. at 34 (alleging that § 253.096 (which Plaintiffs refer to as the "PAC Requirement”) "on [its] face and as applied, chill[s] Plaintiffs’ exercise of religion,” has “placed a substantial burden on Plaintiffs’ religious beliefs and practices,” is "not neutral or generally applicable,” and is "susceptible to selective enforcement”); id. at 35 (alleging that § 253.096 “restrict[s] the right of Plaintiffs to petition the government for redress of grievances” and "treat[s] similarly situated persons differently concerning their ability to engage in protected constitutional activity-speech”).
. For purposes of the present case, a "campaign contribution” is a "direct or indirect transfer of money, goods, services, or any other thing of value,” to a "political committee ... with the intent that it be used ... on a measure.” Tex. Elec.Code Ann. §§ 251.001(2), (3) (West 2012). The definition of "campaign contribution” in § 251.001(3) incorporates the definition of "contribution” in § 251.001(2). As noted in § IV.A above, the parties acknowledge that Plaintiffs' proposed conduct will render them a political committee under Texas law. See Tex. Elec.Code Ann. § 251.001(12) (West 2012).
. Second Amended Complaint, Docket Entry No. 36, p. 9 ¶ 4.2.
. Id., at 27 ¶ 10.20.
. "Defendants” Motion for Summary Judgment, Docket Entry No. 52, pp. 12-13 & n. 4, pp. 26, 28; Defendants' Response in Opposition, Docket Entry No. 7, pp. 9-13, 29; Defendants’ Reply, Docket Entry No. 60, pp. 11-12.
. Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 12-13 & n. 4; Defendants' Response in Opposition, Docket Entry No. 7, p. 12.
. Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 12; Defendants’ Response in Opposition, Docket Entry No. 7, p. 11.
. Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 12-13 (citations omitted); see also Defendants’ Response in Opposition, Docket Entry No. 7, pp. 11-12. Under § 311.026 of the Texas Government Code,
(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.
(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment'and the manifest intent is that the general provision prevail.
Tex. Gov’t Code Ann. § 311.026; see also Tex. Gov’t Code Ann. § 311.002 (West 2013).
.See Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53, p. 17 n. 8 ("While § 253.096 is a general provision permitting corporate contributions to measures-only committees, § 253.094(b) specifically prohibits corporate contributions in connection with recalls. The Cook court was clearly wrong on this point as well—§ 253.094(b) controls and means that Plaintiffs may not simply set up a measures-only committee to make recall contributions, under the statutes as written.” (dis
. Second Amended Complaint, Docket Entry No. 36, p. 23 ¶ 8.1.
. The Cook opinion is discussed in more detail in § IV.E below.
. Defendants’ Motion for Summary Judgment, Docket Entry No. 52, p. 18; Defendants’ Response in Opposition, Docket Entry No. 7, p. 17; see also id. at 29 (“[T]o the extent Plaintiffs[] complain that § 253.094(b) is overly burdensome because they must form a ‘measures only' political committee under § 253.096 in order to expend any funds, or donate any goods or services, in connection with a recall election, ... that argument is based on [a] complete misreading of the law. The formation of a ‘measures only’ committee will not permit a corporation to make ‘political contributions’ in connection with a recall election because the more specific prohibition on contributions to recall elections in § 253.094(b) trumps the less specific § 253.096. Put simply, § 253.096 has no applicability to the facts of Plaintiffs’ case; accordingly, Plaintiffs lack standing to maintain any challenge to § 253.096 and lack standing to challenge § 253.094(b) on the basis that it implicates the need to form a political committee under § 253.096.”).
. Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 28; see also id. at 17-19, 27-28; Defendants' Response in Opposition, Docket Entry No. 7, p. 29.
. Id.
. "Defendants” Motion for Summary Judgment, Docket Entry No. 52, pp. 12-14; Defendants’ Response in Opposition, Docket Entry No. 7, pp. 10-13.
. Id.
. Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53, p. 34.
. Plaintiffs’ First Amended Reply, Docket Entry No. 9-1, p. 13; see also Affidavit of Troy Brown in Support of Motion for Preliminary Injunction, attached to Motion for Preliminary Injunction, Docket Entry No. 9-4.
. Id. at 14.
. Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53, pp. 34-35.
. See, e.g., Brief of Appellant John F. Cook, attached to Plaintiffs’ First Amended Reply, Docket Entry No. 9-10, pp. 33, 39-41.
. Plaintiffs’ Motion For Summary Judgment, Docket Entry No. 53, p. 34; see also id. ("The Attorney General, Texas Appellate Court justices and lawyers for the parties in Cook cannot even agree as to what the law proscribes or prescribes. How can a normal citizen be expected to understand and thus speak without fear of criminal punishment?”).
. See id. at 17 n. 8
. Plaintiffs' Response, Docket Entry No. 59, p. 12.
. Second Amended Complaint, Docket Entry No. 36, pp. 11-16 ¶¶ 5.1-5.3.
. Id. at 36.
. For purposes of this case, § 253.094(a) prohibits a “direct or indirect transfer of money, goods, services, or any other thing of value,” to a "political committee that is offered or given with the intent that it be used ... on a measure.” Tex. Elec.Code Ann. §§ 251.001(2), (3), (5) (West 2012). As discussed above, the parties acknowledge that Plaintiffs’ proposed activity will render them a "political committee” under Texas law.
.Texans for Free Enterprise Injunction, attached as Exhibit 1 to Defendants’ Motion for Summary Judgment, Docket Entry No. 52-1, p. 5.
. Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 22.
. Id. at 22-23.
. Id. at 26-27.
. See Defendants' Reply, Docket Entry No. 10, pp. 8-11.
. See id.; see also Defendants' Motion for Summary Judgment, Docket Entry No. 52, pp. 26-27; Defendants’ Response, Docket Entry No. 58, pp. 7-10.
. See Transcript of Injunction Hearing, Docket Entry No. 26, pp. 86, 102-03, 122.
. Transcript of Injunction Hearing, Docket Entry No 26, pp. 75, 103, 124-25.
. Tex. Elec.Code Ann. § 251.001(14) (West 2012).
. Tex. Elec.Code Ann. § 251.001(13) (West 2012).
. 1 Tex. Admin. Code Ann. § 22.5.
. See Tex. Elec.Code Ann. § 253.096 (West 2012).
. See Transcript of Injunction Hearing, Docket Entry No. 26, pp. 75, 86-88, 93, 103, 115, 124-25.
. Second Amended Complaint, Docket Entry No. 36, p. 30 ¶ 10.45; see also id. ¶ 10.46 ("Imposing political committee status on groups wanting to make political expenditures and/or accept political contributions for a measure unconstitutionally burdens speech.”).
. Id. at 30 ¶ 10.42.
. Id.1 10.43.
. Id. ¶ 10.44.
. Id. at 29 ¶¶ 10.37-10.38; 36-37.
. Second Amended Complaint, Docket Entry No. 36, pp. 30-31 ¶ 10.47.
. Id. at 31 V 10.51.
. 2tf. ¶ 10.53.
. Defendants’ Motion for Summary Judgment, Docket Entry No. 52, p. 29.
. Second Amended Complaint, Docket Entry No. 36, p. 30 ¶ 10.44.
. Id. at 18-22 ¶¶ 6.15-6.21 (citing Tex. Elec.Code Ann. § 254.031 (West Supp. 2014), §§ 254.121, 254.124 (West 2012)).
. Transcript of Injunction Hearing, Docket Entry No. 26, pp. 38-64 (testimony of Chris Gober).
. Second Amended Complaint, Docket Entry No. 36, p. 30 ¶ 10.44. Plaintiffs suggest that the $500 threshold is especially low when most of a committee’s political contributions will be in the form of in-kind contributions. See Plaintiffs’ Reply, Docket Entry No. 61, p. 19.
. Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 31.
. Id. at 31-32.
. Id. at 32 n. 20.
.Id.; see also Transcript of Injunction Hearing, Docket Entry No. 26, pp. 38-64 (testimony of Chris Gober).
. Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53, p. 11 ("Plaintiffs intend to engage in recalls in the future as well, as these issues are sure to arise in additional cities and even with respect to new officials who may take office in San Antonio later.”); Joint Heirs’ Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-19, p. 1; Houston’s First Interrogatory Responses, attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-20, p. 1; Faith Outreach International’s Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-21, p. 1.
. Second Amended Complaint, Docket Entry No. 36, pp. 11-16 ¶¶ 5.1-5.3; see also Plaintiffs’ First Amended Reply, Docket Entry No. 9-1, p. 15 ("An injunction is also needed to protect Plaintiffs who seek to circulate recall petitions in the future and engage in measures-only issues (that are not coordinated with a candidate or political committee that coordinates with candidates).”).
. Plaintiffs' Reply, Docket Entry No. 61, p. 19.
. See id. ("Estimating a cost of ten cents per page, simply printing 5,000 pages for recall petitions, flyers, schedules, etc., will cost $500.”); id. n. 8 (“A single vehicle traveling 386 miles (round trip) from Houston's First Church of God to San Antonio City Hall as part of a coordinated effort with Plaintiffs would result in a $216.16 iri-kind contribution to Plaintiffs' de facto committee, based on the IRS’s standard mileage reimbursement rate for 2014 (56 cents per mile). The use of three vehicles would amount to a $648.48 contribution.” (citation omitted)).
. Second Amended Complaint, Docket Entry No. 36, p. 37; see also id. at 9 ¶¶ 4.3-4.4, 32-33 ¶¶ 10.55-10.65. Plaintiffs also ask the court to "enjoin[] the Defendants from enforcing” § 251.001(6) "in such a way as to violate Plaintiffs’ constitutional right to circulate or submit recall petitions, encourage others to do the same, and from otherwise making a political contribution concerning a recall effort or measures-only effort.” Id. at 36; see also id. at 18 ¶6.12, 29 ¶ 10.39. Section 251.001(6) defines "expenditure” as "a payment of money or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a payment.” Tex. Elec.Code Ann. § 251.001 (West 2012). Plaintiffs make no argument, however, that § 251.001(6)’s definition of “expenditure” is vague, overbroad, or operates to prohibit any of their proposed political activity. Plaintiffs’ argument regarding § 251.001(6) appears to be focused on the perceived burdens of complying with Texas’s treasurer-appointment and political committee disclosure requirements, which are addressed in § IV.D above. See Second Amended Complaint, Docket Entry No. 36, pp. 29-31 ¶¶ 10.35-10.54; Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53, pp. 40-43; Plaintiffs' Reply, Docket Entry No. 61, pp. 19-23.
.Defendants argue that "it is entirely unclear what injury Plaintiffs even seek to redress through their attempt to enjoin the statutory definition of ‘contribution,’ such .that it is unclear whether Plaintiffs even have standing to make such a claim.” Defendants’ Response, Docket Entry No. 58, p. 16 n. 8. According to Defendants,
It should be readily apparent that a statutory definition does not and cannot, in and of itself, prohibit activity or cause any injury. Rather, it is only statutes that contain the term 'contribution' that could be seen as actually imposing any possible injury on Plaintiffs. As such, it is unclear what, if anything, would be accomplished or redressed by simply enjoining the statutory definition challenged by Plaintiffs. For example, if the statutory definition was declared invalid, rules of construction would require that statutes containing the term ‘contribution’ would be construed based on the common usage of the term. Given this, it is unclear how a declaration that a statutory definition is invalid would redress any of Plaintiffs' claimed injuries.
Id. (citations omitted) (citing Tex. Gov’t Code Ann. § 311.011(a) (West 2013)). Nevertheless, since Plaintiffs challenge the definition of “contribution” as it is utilized in particular conduct-regulating provisions of the Texas Election Code, the court will address the merits of Plaintiffs’ arguments in the context of those provisions.
. See Defendants’ Motion for Summary Judgment, Docket Entry No. 52, p. 37 ("Plaintiffs’ vagueness challenge to the § 251.001(2) definition of 'contribution' is unfounded because it is based on Plaintiffs ignoring the fact that the statu[t]es that serve to regulate conduct, such as § 253.094, do not prohibit simply ‘contributions,’ but rather use the term ‘political contributions,' which is given a specific definition in the Election Code.”).
. Second Amended Complaint, Docket Entry No. 36, p. 33 ¶ 10.65.
.Defendants argue that Plaintiffs' claim "that the term [‘contribution’] operates to prohibit ‘all expressive activity of Plaintiffs,’ ... is simply incorrect because ... a church’s independent use of its own funds or resources in support of election activity (including recalls) would constitute a ‘direct campaign expenditure' that is not barred by § 253.094(b).” Defendants’ Motion for Summary Judgment, Docket Entry No. 52, p. 30.
. See Second Amended Complaint, Docket Entry No. 36, pp. 32-33 ¶¶ 10.55-10.65.
. Id. at 32 ¶ 10.61.
. Second Amended Complaint, Docket Entry No. 36, p. 32 ¶ 10.62; see also id. ¶ 10.60 ("By defining ‘contribution’ as including an 'indirect transfer of money,’ Texas has created a situation in which the posting of speech in support of a recall petition on a corporation's website (i.e. an incorporated church’s web
. It is unclear what the court in Cook meant when it stated that "WOL Church, a corporation, made a political contribution in connection with a recall election, including the circulation and submission of petitions to call an election, and failed to make such contribution to a political committee.” 385 S.W.3d at 603. The opinion makes no mention of any candidates and, therefore, in order for any "contribution” to represent a “political contribution” it would have to have been made to a political committee. Plaintiffs appear to argue that the Cook court interpreted the language of § 253.094(b) to define "the circulation and submission of a petition to call an election" as a “political contribution” regardless of the recipient or the intent of the contributor in making the contribution. Defendants contend that the cited language "constitutes a misinterpretation of § 253.094(b).” Defendants’ Motion for Summary Judgment, Docket Entry No. 52, p. 18. "The misinterpretation of § 253.094(b) in Cook can be contrasted with a more proper reading of the statutory scheme” in Hoyt, where the court held that § 253.094(b) “only prohibits the circulation of recall petitions when such circulation constitutes a political contribution.” Id. at 18-19 (quoting Hoyt, 878 F.Supp.2d at 736). The court agrees with the Hoyt court’s interpretation of § 253.094(b). Accordingly, in analyzing Plaintiffs' claims, the court construes the circulation and submission of recall petitions as a “political contribution” only when that activity constitutes a transfer of a thing of value to a political committee with the intent that it be used on a measure. See Tex. Elec.Code §§ 251.001(3), (5) (West 2012), § 253.094(b) (West Supp. 2014).
. Second Amended Complaint, Docket Entry No. 36, p. 9 ¶ 4.4 ("The phrase ‘any other thing of value’ is not defined in the statute but has been interpreted broadly in Cook v. Tom Brown Ministries to include speech occurring on an incorporated church’s website or in its facilities if such speech promotes the circulation of a recall petition.” (citation omitted)); id. at 17 ¶ 6.3 ("The Texas court in Cook interpreted the term 'contribution,' under
.Second Amended Complaint, Docket Entry No. 36, p. 32 ¶ 10.62; see also id. ¶ 10.60. Because Plaintiffs’ arguments are specifically addressed at § 251.001(2)’s ..definition of "contribution,” rather than the more restrictive definitions of "political contribution” or "campaign contribution,” it is unclear whether their critique of Cook's holding is premised on its statement that WOL Church "made a political contribution in connection with a recall election ... and failed to make such contribution to a political committee.”
. See Plaintiff’s Third Amended Petition, Application for Temporary Restraining Order, Request for Temporary Injunction and Permanent Injunction, and for Declaratory Judgment (“Coolc Complaint”), attached to Plaintiffs’ Motion for Leave to File Amended Reply, Docket Entry No. 9-9, pp. 4-9 ¶¶ 5-12, pp. 12-13 ¶¶ 22-25; see also Cook, 385 S.W.3d at 602-03.
. See also Brief of Appellant John F. Cook, attached to Plaintiffs’ Motion for Leave to File Amended Reply, Docket Entry No. 9-10, p. 19 (“In a June posting [to the incorporated church’s website] entitled, 'A Message from Pastor Tom Brown,’ Pastor Brown called for a recall petition campaign and stated that '[i]t was not an easy decision to recall the may- or.... I, along with El Pasoans for Traditional Family Values (EPTFV), have decided to join in the recall of Mayor John Cook, and help in any way we can to recall Steve Ortega and Susie Byrd.’ ”).
. Cook Complaint, attached to Plaintiffs’ Motion for Leave to File Amended Reply, Docket Entry No. 9-9, p. 19 ¶ 39; see also id. at 12 ¶ 23 ("WOL Church/TBM provided the value of the website and its updates, the advertising, the value of the church premises and facilities for circulating petitions, meetings, and distribution of petitions, along with providing copies of petitions to recall all three objects of the effort.").
. Indeed, Plaintiffs appear to acknowledge that website design and maintenance often entails some cost. See Joint Heirs’ Interrogatory Responses, attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-19, p. 4 ("[W]e also want to ask ... interested individuals, whether members of the church or not, to pay for certain items in furtherance of recall efforts, which could range from things like, among other things, paper and toner (for printing petitions, research, communications, etc.) to payments for professional design of a dedicated recall advocacy website, payments for online announcements and information.”); see also Houston’s First Interrogatory Responses, attached to Plaintiffs’ Motion for Summary Judgment, Docket Entry No. 53-20, p. 4; Faith Outreach International’s Interrogatory Responses, attached to Plaintiffs' Motion for Summary Judgment, Docket Entry No. 53-21, p. 4.
.Defendants' Motion for Summary Judgment, Docket Entry No. 52, p. 18.
. Second Amended Complaint, Docket Entry No. 36, pp. 11-12 115.1(d), p. 13 ¶ 5.2(d), p. 14 ¶ 5.3(d).
. Plaintiffs’ Reply, Docket Entry No. 61, p. 19.
.Second Amended Complaint, Docket Entry No. 36, p. 32 ¶ 10.62.
. The court has allowed the parties extraordinary leeway in submitting lengthy briefs and other written materials in connection with the pending motions and has twice allowed the Plaintiffs to amend their complaint. As the length of this Memorandum Opinion and Order indicates, the court has expended considerable time reading these papers and performing a significant amount of independent research to be as fully informed as possible when addressing the parties’ arguments. While, because of the sheer volume of information presented, it is not impossible that some arguments were overlooked, the parties should assume that failure to expressly address a particular argument in this Memorandum Opinion and Order reflects the court’s judgment that the argument lacked sufficient merit to warrant discussion. Accordingly, the court strongly discourages the parties from seeking reconsideration based on arguments they have previously raised or that they could have raised. In addition, Plaintiffs have already had multiple opportunities to amend their pleadings.
Reference
- Full Case Name
- JOINT HEIRS FELLOWSHIP CHURCH, Houston's First Church of God, and Faith Outreach International Center v. Natalia ASHLEY, in her official capacity as Interim Executive Director of the Texas Ethics Commission
- Status
- Published