Monday, August 17, 2015

How Much Money is Enough to Win an Austin City Council District Seat?



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




GregorioGreg 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 PetePhillips
$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 voteefforts 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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