Zimmerman issues first circuit court challenge to Austin's $350 contribution limit

If the appeal is taken up, Austin City Councilman Don Zimmerman will be leading the first Circuit Court challenge against the City of Austin's candidate contribution limit.

Below is the press release from his attorney, Jerad Najvar:

Zimmerman Asks Federal Court of Appeals to Strike Down Two Remaining Austin Political Speech Restrictions

This week, Austin Council Member Don Zimmerman filed an appeal with the United States Court of Appeals in New Orleans presenting an issue the Fifth Circuit has never considered before: whether a base limit on contributions from individuals to candidates violates the First Amendment.  Austin’s $350 base limit is one of two provisions remaining at issue in Zimmerman’s First Amendment challenge to Austin campaign finance laws.

Zimmerman already secured a partial victory in the case following a two-day trial in December 2015.  Federal District Judge Lee Yeakel ruled on July 21 that Austin’s “blackout period” on campaign fundraising, and another rule requiring that candidates either pay leftover contributions to the City or dissolve their campaign funds between elections, violate the First Amendment. The July order enjoins the City from enforcing these provisions.

However, the district court ruled for the City on two other provisions.  Judge Yeakel found that Zimmerman did not have standing to challenge the aggregate limit that a candidate may accept from sources other than individuals “eligible to vote” in an Austin-area zip code (Charter article III, § 8(A)(3)), and therefore did not reach the merits of that law.  The ruling also upheld the base $350 limit on individual contributions to candidates (Charter article III, § 8(A)(1)), even though the $350 limit does not apply to contributions officeholders can accept for “officeholder” expenditures.  Zimmerman filed a motion for reconsideration in August, which Judge Yeakel denied October 26.  The appeal now takes the case to a three-judge panel of the federal court of appeals.

“I expect these last two provisions to be struck down as well,” said Zimmerman’s attorney Jerad Najvar.  “Austin can’t severely limit campaign contributions while at the same time allowing incumbent officeholders to take unlimited contributions to pay for staff and newsletters.  Contribution limits can only be justified if they address corruption; apparently the mostly-Democratic Austin City Council thinks themselves immune from influence but still want to limit challengers’ ability to organize against them.”

As to the aggregate limit capping the total amount a candidate may accept from supporters who are not registered Austin-area voters, Najvar continued: “Even the City still hasn’t explained how it actually works, and it has nothing to do with corruption.  Both of these rules serve to insulate the Austin echo chamber with the ultimate joke being visited upon Austin taxpayers, who pay for the bad decisions that come out of the Council.”

This will be the first time the Fifth Circuit has considered a challenge to a base contribution limit from individuals to candidates.  After the parties’ briefs are filed, the Court of Appeals will decide whether to set the case for oral argument before issuing a decision.

Jerad Najvar practices political and appellate law and is founder of the Najvar Law Firm in Houston.  He served as co-counsel to Shaun McCutcheon in McCutcheon v. FEC, in which the U.S. Supreme Court struck down the federal aggregate contribution limits, and lead counsel in Catholic Leadership Coalition v. Reisman, in which the Fifth Circuit Court of Appeals struck down a waiting period on Texas PACs.

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Zimmerman lost his bid for re-election on Nov. 8, but has until Jan. 5, 2017, to fight for the taxpayers of Austin's District 6 as a Councilman. However, he may opt to continue legal challenges to the city well beyond his term.