The lawsuit filed by Councilmember Don Zimmerman challenging Austin’s contribution limits and
several
other campaign contribution
provisions of Austin’s
City Charter raises an interesting question concerning how much
an individual needs to spend
to win
a seat on Austin’s Council in the single-member district
system. Although several factors affect whether a candidate
wins, surely campaign spending
has an effect. Usually, spending more money is better than spending less money. But the candidate who
spends the most money does not always win. So, how much
is enough?
Let’s consider some data from the first Austin City Council election under the single-member district.
Table 1 lists the candidates that competed
in the 2014 City Council election, by district. The winning candidate in each district is highlighted in “green.”
Table 1: Council Candidates and
Spending, by District
District 1
|
Reported1
|
Actual2
|
Pro Indy3
|
Total Pro4
|
Expended
|
Expended
|
Spending
|
Spending
|
|
Andrew Bucknall
|
$5,345
|
$5,345
|
$0
|
$5,345
|
Michael Cargill
|
$3,959
|
$3,959
|
$0
|
$3,959
|
George Hindman
|
$13,154
|
$13,154
|
$0
|
$13,154
|
Ora Houston
|
$99,232
|
$99,232
|
$8,320
|
$107,552
|
Christopher Hutchins
|
$0
|
$0
|
$0
|
$0
|
Norman A. Jacobson
|
$2,192
|
$2,192
|
$0
|
$2,192
|
DeWayne Lofton
|
$35,112
|
$35,112
|
$0
|
$35,112
|
Valerie Menard
|
$2,926
|
$2,926
|
$0
|
$2,926
|
Sam Osemene
|
$8,737
|
$8,737
|
$0
|
$8,737
|
District 1 Totals
|
$170,657
|
$170,657
|
$8,320
|
$178,977
|
District 2
|
|
|
|
|
Delia Garza
|
$57,372
|
$50,857
|
$7,848
|
$58,705
|
Michael Owen
|
$0
|
$0
|
$0
|
$0
|
Edward
“Wally” Reyes
|
$3,562
|
$3,562
|
$0
|
$3,562
|
John C. Sheppard
|
$1,605
|
$1,605
|
$9,999
|
$11,604
|
District 2 Totals
|
$62,539
|
$56,024
|
$17,847
|
$73,871
|
District 3
|
|
|
|
|
Susana R. Almanza
|
$50,852
|
$50,852
|
$5,348
|
$56,200
|
Mario Cantu
|
$7,043
|
$6,259
|
$0
|
$6,259
|
Julian Limon
Fernandez
|
$5,626
|
$5,626
|
$0
|
$5,626
|
Christopher Hoerster
|
$5,269
|
$5,269
|
$0
|
$5,269
|
Shaun Ireland
|
$8,862
|
$8,862
|
$0
|
$8,862
|
Fred
L.
McGhee
|
$19,884
|
$19,884
|
$0
|
$19,884
|
Kent Phillips 10
|
$7,414
|
$7,414
|
$0
|
$7,414
|
Jose Quintero Sr.
|
$0
|
$0
|
$0
|
$0
|
Eric J. Rangel
|
$14,243
|
$14,243
|
$0
|
$14,243
|
Sabino “Pio” Renteria
|
$47,278
|
$47,278
|
$21,641
|
$68,919
|
Ricardo Turullols-Bonilla
|
$1,455
|
$1,455
|
$0
|
$1,455
|
Jose Valera
|
$55,132
|
$55,132
|
$16,044
|
$71,176
|
District 3 Totals
|
$223,058
|
$222,274
|
$43,033
|
$265,307
|
District 4
|
|
|
|
|
Gregorio “Greg” Casar
|
$180,329
|
$180,329
|
$30,195
|
$210,524
|
Katrina Daniel
|
$66,779
|
$66,779
|
$11,042
|
$77,821
|
Monica A. Guzman
|
$1,360
|
$1,360
|
$0
|
$1,360
|
Louis C. Herrin III
|
$494
|
$494
|
$0
|
$494
|
Marco Mancillas
|
$24,061
|
$24,061
|
$0
|
$24,061
|
Sharon
E. Mays
|
$17,200
|
$17,200
|
$0
|
$17,200
|
Roberto
Perez Jr.
|
$2,241
|
$2,241
|
$0
|
$2,241
|
Laura Pressley
|
$101,461
|
$101,461
|
$0
|
$101,461
|
District 4 Totals
|
$393,925
|
$393,925
|
$41,237
|
$435,162
|
District 5
|
|
|
|
|
Dan Buda
|
$33,665
|
$33,665
|
$2,500
|
$36,165
|
Jason Denny
|
$6,925
|
$6,925
|
$0
|
$6,925
|
Dave Floyd
|
$10,408
|
$10,408
|
$0
|
$10,408
|
CarolAnneRose Kennedy
|
$0
|
$0
|
$0
|
$0
|
Ann Kitchen
|
$144,568
|
$144,568
|
$3,667
|
$148,235
|
Mike Rodriguez
|
$24,404
|
$15,475
|
$0
|
$15,475
|
Dave Senecal
|
$658
|
$658
|
$0
|
$658
|
District 5 Totals
|
$220,628
|
$211,699
|
$6,167
|
$217,866
|
District 6
|
|
|
|
|
James Flannigan
|
$86,822
|
$86,822
|
$27,549
|
$114,371
|
Mackenzie Kelly
|
$123
|
$123
|
$0
|
$123
|
Lloyd “Pete” Phillips
|
$24,523
|
$24,523
|
$0
|
$24,523
|
Matt Stillwell
|
$31,733
|
$31,733
|
$0
|
$31,733
|
Jay Wiley
|
$74,675
|
$74,675
|
$0
|
$74,675
|
Don Zimmerman
|
$69,325
|
$63,325
|
$5,323
|
$68,648
|
District 6 Totals
|
$287,201
|
$281,201
|
$32,872
|
$314,073
|
District 7
|
|
|
|
|
J.E. Boyt
|
$87,652
|
$87,652
|
$50
|
$87,702
|
Ed English
|
$16,266
|
$16,266
|
$3,961
|
$20,227
|
Zack Ingraham
|
$1,675
|
$1,675
|
$0
|
$1,675
|
Jimmy Paver
|
$66,409
|
$66,409
|
$0
|
$66,409
|
Leslie Pool
|
$117,902
|
$117,902
|
$9,693
|
$127,595
|
Pete A. Salazar Jr.
|
$5,523
|
$5,523
|
$0
|
$5,523
|
Darryl R. Wittle
|
$12,196
|
$12,196
|
$0
|
$12,196
|
Melissa Zone
|
$19,607
|
$19,607
|
$4,918
|
$24,525
|
District 7 Totals
|
$327,230
|
$327,230
|
$18,622
|
$345,852
|
District 8
|
|
|
|
|
Becky Bray
|
$129,756
|
$89,614
|
$2,990
|
$92,604
|
Eliza May
|
$59,136
|
$47,136
|
$0
|
$47,136
|
Darrell Pierce
|
$69,218
|
$64,218
|
$0
|
$64,218
|
Ed Scruggs
|
$95,125
|
$85,125
|
$18,357
|
$103,482
|
Ellen Troxclair
|
$153,411
|
$98,411
|
$32,173
|
$130,584
|
District 8 Totals
|
$506,646
|
$384,504
|
$53,520
|
$438,024
|
District 9
|
|
|
|
|
Erin McGann
|
$28,013
|
$24,813
|
$0
|
$24,813
|
Chris Riley
|
$217,794
|
$217,794
|
$53,844
|
$271,638
|
Kathie Tovo
|
$218,402
|
$218,402
|
$19,121
|
$237,523
|
District 9 Totals
|
$464,209
|
$461,009
|
$72,965
|
$533,974
|
District 10
|
|
|
|
|
Margie Burciaga
|
$24,314
|
$24,314
|
$0
|
$24,314
|
Tina Cannon
|
$20,124
|
$20,124
|
$0
|
$20,124
|
Mandy Dealey
|
$292,843
|
$292,843
|
$30,839
|
$323,682
|
Sheri Gallo
|
$165,226
|
$165,226
|
$17,848
|
$183,074
|
Matt Lamon
|
$24,943
|
$24,943
|
$0
|
$24,943
|
Jason Meeker
|
$24,665
|
$24,665
|
$4,265
|
$28,930
|
Robert Thomas
|
$185,535
|
$128,882
|
$63,861
|
$192,743
|
Bill Worsham
|
$35,487
|
$35,487
|
$0
|
$35,487
|
District 10 Totals
|
$773,137
|
$716,484
|
$116,813
|
$833,297
|
1 Total Expenditures for the 2014 campaign is
the sum of expenditures reported on
each campaign
finance report. This
total includes loan repayments, because they are reported
as expenditures.
2 Actual Expenditures for the 2014 campaign were calculated
by subtracting loan repayments from
the reported Total Expenditures. Loan repayments are reported
as expenditures but in fact
do not help the campaign.
3 Pro Indy Spending figures were taken from The Austin
Bulldog’s separate analysis of each
expenditure
reported
by 26 political action committees that made independent expenditures supporting
candidates in the 2014 campaign.
4 Total Pro Spending is
the combined
total of actual campaign finance expenditures reported by the
candidates and
support for the candidate reported by political
action committees. Source: The Austin Bulldog, http://www.theaustinbulldog.org/index.php?option=com_content&view=article&id=346:part-2-the-63- million-election&catid=3:main-articles
In seven of the 10 electoral contests, the candidate who spent the most was the ultimate winner, whether in the general election or in the runoff election. Among the ten winning candidates, Don
Zimmerman spent the third lowest amount. Among the seven
winning candidates who
were
involved in the
runoff election, Zimmerman spent the second
fewest dollars. The amount spent by the winning
candidate varied greatly by district, as the table
indicates. Candidates who won the seat in
the general election
spent more, on average, than candidates who faced a second, runoff election. Table 2 depicts the district winners’ actual spending
from Table 1. Districts in
which
candidates were in a runoff election are on the left side of the table, and districts in
which candidates won in the general election
are
on the right side of the table.
Table 2:
Winners’ Actual Spending, by District
District
|
Winner Spent
|
District
|
|
Winner Spent
|
1
|
$
99,232
|
|
2
|
$
50,857
|
3
|
$
47,278
|
|
5
|
$
144,568
|
4
|
$ 180,329
|
|
9
|
$
218,402
|
6
|
$
63,325
|
Average
|
|
$ 137,942
|
7
|
$ 117,902
|
|
||
8
|
$
98,411
|
|||
10
|
$ 165,226
|
|||
Average
|
$ 110,243
|
Source: The Austin Bulldog.
However, since independent expenditures can be beneficial to the candidate, perhaps a better
comparison Is the total pro
spending from Table 1. The comparison
shows that Zimmerman
now
spent the second
lowest amount. Again, candidates who won
in the general election spent more, on
average, than candidates who were forced to endure a runoff election. The data is displayed
in Table 3.
Table 3:
Winners’ Total Pro Spending, by District
District
|
Winner Spent
|
District
|
Winner Spent
|
1
|
$107,552
|
2
|
$58,705
|
3
|
$68,919
|
5
|
$148,235
|
4
|
$210,524
|
9
|
$237,523
|
6
|
$68,648.
|
Average
|
$148,154
|
7
|
$127,595
|
|
|
8
|
$130,584
|
|
|
10
|
$183,074
|
|
|
Average
|
$128,128
|
|
|
Source: The Austin Bulldog.
However, the comparisons in Tables 2 and
3 fail to take into account the fact that the districts vary greatly in the number of registered voters.
So
a better comparison
would
be spending
per
registered voter, which is depicted in Tables 4 and 5. Table 4 depicts actual spending and Table 5 depicts total pro spending. Again, districts in which candidates were in a runoff election are on the left side of the table,
and districts in which
candidates won
in the general election
are on the right side of the table.
Table 4:
Winners’ Actual Spending Per Registered
Voter, by District
|
$ Per
|
|
|
|
$ Per
|
||
|
Registered
|
|
Registered
|
|
Registered
|
Winner
|
Registered
|
District
|
Voters
|
Winner Spent
|
Voter
|
District
|
Voters
|
Spent
|
Voter
|
1
|
44,508
|
$99,232
|
$2.23
|
2
|
35,108
|
$50,857
|
$1.45
|
3
|
42,736
|
$47,278
|
$1.11
|
5
|
59,231
|
$144,568
|
$2.44
|
4
|
28,845
|
$180,329
|
$6.25
|
9
|
65,809
|
$218,402
|
$3.32
|
6
|
67,835
|
$63,325
|
$0.93
|
Average
|
160,148
|
$413,827
|
$2.58
|
7
|
54,753
|
$117,902
|
$2.15
|
|
|||
8
|
55,377
|
$98,411
|
$1.78
|
||||
10
|
63,516
|
$165,226
|
$2.60
|
||||
Average
|
357,570
|
$896,896
|
$2.16
|
Source: Registered voters is from Austin Chronicle; spending is from The Austin Bulldog.
For candidates who faced
a runoff election, average spending was $2.16 per registered voter. Among
candidates who won without a runoff election, average spending was $2.58 per registered voter. Among all
winning candidates, Don Zimmerman
spent the least—$0.93 per registered
voter.
Table 5:
Winners’ Total Pro
Spending Per Registered Voter, by District
District
|
Registered
Voters
|
Winner Spent
|
$ Per
Registered Voter
|
District
|
Registered
Voters
|
Winner
Spent
|
$ Per
Registered Voter
|
1
|
44,508
|
$107,552
|
$2.42
|
2
|
35,108
|
$58,705
|
$1.67
|
3
|
42,736
|
$68,919
|
$1.61
|
5
|
59,231
|
$148,235
|
$2.50
|
4
|
28,845
|
$210,524
|
$7.30
|
9
|
65,809
|
$237,523
|
$3.61
|
6
|
67,835
|
$68,648
|
$1.01
|
Average
|
160,148
|
$444,463
|
$2.78
|
7
|
54,753
|
$127,595
|
$2.33
|
|
|||
8
|
55,377
|
$130,584
|
$2.36
|
||||
10
|
63,516
|
$183,074
|
$2.88
|
||||
Average
|
357,570
|
$896,896
|
$2.51
|
Source: Registered voters is from Austin Chronicle; spending is from The Austin Bulldog.
For candidates who faced
a runoff election, average spending was $2.51 per registered voter. Among
candidates who won without a runoff election, average spending was $2.78 per registered voter.
Among
all winning candidates, Don Zimmerman
spent the least—$1.01 per registered voter. Nevertheless,
Zimmerman finished
first in the general election
and then won the runoff election in December.
Obviously, the campaign restrictions did not prevent Zimmerman
from
accumulating sufficient funds to
win the election in 2014.
Zimmerman is seeking a declaratory judgment that the campaign limitation provisions are facially unconstitutional under the First Amendment, and a preliminary and permanent injunction
against enforcing the campaign finance provisions of the Austin City
Charter. What is not addressed in Ken Martin’s Austin Bulldog article is the prerequisites for granting
injunctive relief, which
are stated by Senior Judge Hudspeth in his denial of injunctive relief in
Katz v. COA:
There are four prerequisites to the granting of a preliminary injunction: (1) a substantial likelihood that
the movant will prevail on the merits of his claim; (2) a substantial threat of
irreparable injury to the moving
party; (3) the threatened
harm faced by the movant exceeds
the harm an injunction
will
cause to the non-moving party; and
(4)
granting the preliminary
injunction will not disservice the public interest. Sierra Club v. City of San Antonio, 112 F.3d
789, 793 (5th Cir. 2997). The party seeking
the injunction has the burden of persuasion
as to all four prerequisites.
Black Firefighter Assoc. of Dallas v. City of Dallas, 905 F.2d 63, 65 (5th Cir.
1990).
Furthermore, Senior Judge Hudspeth
noted
that Austin’s campaign contribution
limit “seeks to limit the appearance, as well as the reality, of corruption.”
He also points out that there is no limit on the number
of
contributors or on the total funds a candidate
may raise. The effect is to
require the candidate to increase the number of contributors. Finally, and possibly most importantly, Senior Judge Hudspeth
notes that there are a number of campaign
methods available that do not require large expenditures by a candidate, including “candidate
forums; direct mailings to targeted
likely voters; internet and e:mail
[sic] communications; individual door-to-door or neighborhood
campaigning; and ‘get out the vote’
efforts by volunteers in target precincts.
See: Frank, 290 F.3d
at 818.”
These comments are even more cogent since Austin
implemented single-member districts in
2014.
So, is Zimmerman likely to win
his request for an injunction and proceed to a full hearing
and decision by a judge? I don’t think that the facts in the
case are such that Zimmerman, or any other candidate, suffers “irreparable
injury” as a result of any of the limitations on campaign contributions in
the Austin City Charter. All four provisions of the Austin
Charter that Zimmerman
challenges—the blackout period, the limit on
individual contributions, the
limit on contributions from
outside Austin, and
the limit on
officeholder accounts—are designed
to limit the appearance, as well as the reality, of corruption.
Concerning
the
limits on individual contributions: Although
the U.S. Supreme Court ruled
that “campaign spending” by a candidate
is “speech” that
cannot be restricted, it did not rule
that “contributions to
a candidate for public
office” are “speech” that
cannot be restricted.
However, as the
U.S. Supreme Court stated in Buckley v.
Valeo (1976), the restrictions must be for the purpose of prohibiting
the appearance or reality of corruption
and cannot be so onerous that public advocacy by a candidate is prohibited. The specific paragraph
concerning
advocacy is instructive:
Given the important role of contributions in financing political campaigns, contribution restrictions could
have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing
the
resources necessary for effective advocacy.
There is no indication, however, that the contribution
limitations
imposed
by the Act would have any dramatic adverse effect on the funding
of campaigns and political associations.
The over-all effect of the Act's contribution
ceilings is merely to require candidates and
political committees to raise funds from a greater number of persons and
to compel people who would otherwise contribute
amounts greater than the
statutory limits to expend
such funds on direct political expression, rather than to
reduce the total amount of money potentially available to promote political expression.
Consequently, the Charter provisions that impose a blackout period on contributions and limit individual contributions are probably constitutional. However, the defense of the limits on contributions from outside Austin
and on officeholder accounts needs to be vigorous as those
provisions appear to be
more difficult to defend.
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