Case 1:15-cv-00628-LY Document 19 Filed 09/03/15 Page 1 of 28

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DONALD ZIMMERMAN,
Plaintiff,

:
:
:
v.
:
:
CITY OF AUSTIN,
:
Defendant.
:
_____________________________ :

No. 1:15-cv-628-LY

DEFENDANT’S RESPONSE IN OPPOSITION TO
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
The City of Austin (“City” or “Austin”) responds to Plaintiff Zimmerman’s Motion for
Preliminary Injunction (Dkt. #2) and the motion’s supporting memorandum (“P.I. Mem.”)
(Dkt. #4).1
The three challenged charter provisions regulating financing of campaigns for Austin city
council are constitutionally justified decisions by the citizens of Austin to protect the integrity
of their representative government. The charter rules govern campaign contributions, not expenditures, and, consequently, are subject to less intense judicial scrutiny than expenditure restrictions because they do not strike at the core of political expression. The challenged rules are
closely drawn to protect the city council from quid pro quo corruption and, importantly, also
from the appearance of such corruption. They also are crafted to close off efforts to circumvent
the restrictions designed to achieve the anticorruption objective.

1

Mr. Zimmerman filed this lawsuit, not in his official capacity as a current member of the Austin City Council, but in
his personal capacity as a candidate or potential candidate for City elective office. Plaintiff’s Verified Complaint
(“Complaint”) ¶¶ 9 (2nd sent.), 15 (Dkt. # 1). Consequently, the City will refer to him in his personal capacity as
Mr. Zimmerman rather than in his official capacity as Councilmember Zimmerman.

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Mr. Zimmerman’s request for a preliminary injunction should be denied because he is unlikely to prevail in his legal claims seeking to block enforcement of the charter provisions at issue. See discussion below in Part V.A-V.C. Faced with efforts such as this one that would disrupt existing electoral mechanisms, courts must proceed with caution and exercise restraint to
avoid premature rulings on the merits. Judicial intervention requiring electoral changes before
final trial are appropriate only in situations where a plaintiff such as Mr. Zimmerman has
“clearly” carried his burden to show entitlement to the “extraordinary remedy” he seeks. This
is not such a case. Particularly in an area of law as tumultuous as campaign finance law is at the
moment, protecting the public interest in ensuring the integrity of local government in Austin
warrants requiring a full trial on the merits, rather than interim relief.

I.

THE THREE PROVISIONS AT ISSUE IN THE PRELIMINARY INJUNCTION MOTION
In 1997, followed by some fine-tuning in 2006, Austin voters added a set of provisions to

the city charter to govern financing of city council campaigns. See Austin City Charter, Art. III,
§ 8. Mr. Zimmerman’s suit challenges four of the provisions on First Amendment grounds, but
limits his preliminary injunction request to just three of them.2 Complaint ¶¶ 97-132; Prayer for
Relief ¶ 1; Mem. at 32-33.3 The provisions targeted by the preliminary injunction motion are:

2

The challenge also extends to an Austin City Code provision, § 2-2-7(D), implementing one of the challenged charter provisions. Complaint Prayer for Relief ¶ 2. Since the challenge is really directed at the associated charter provision, this response will not focus on the ordinance, but on the charter provision.
3

The challenged provision—Article III, § 8(A)(1), the “base limit” rule— that is not targeted in the preliminary
injunction motion limits individual contributors to $350 per council candidate. The original 1997 base limit was challenged on First Amendment grounds in Katz v. City of Austin, No. 1:03cv129-H (W.D. Tex.). This Court denied a
preliminary injunction, see Order (March 17, 2003), and the plaintiff voluntarily dismissed his case. The 2006
amendments raised the 1997 base limit.

2

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■

Article III, § 8(F)(2), the “6-month window” rule. Candidates for city council
are allowed to solicit and accept campaign contributions only during the six
months before the election.

■

Article III, § 8(A)(3), the “non-voter aggregation cap” rule. Candidates for
city council are not allowed to accept more than $36,000 in the general election
($24,000 for run-offs) from those who are not eligible voters who live either in
Austin or in a postal ZIP code partly in Austin.

■

Article III, § 8(F)(3), the “leftover contribution transfer” rule. Three months
after an election, aside from up to $20,000 that may be transferred to an officeholder account, the balance of campaign contributions remaining from the concluded election must either be returned to contributors or disbursed to a charity or
a city fund offering partial support for council campaigns.

II. HIGH STANDARDS FOR OBTAINING A PRELIMINARY INJUNCTION IN ELECTION CONTEXT
First in 1997, then again in 2006, supermajorities of Austin citizens, roughly 70% of them,
voted to change the City’s basic charter to more closely guard the integrity of Austin city council campaigns. So the provisions attacked here are fundamental law for the City, not ordinances
subject to council reconsideration. 4

A. Avoiding disruption of Austin’s compelling interest in its election process
The obvious animating force behind this citizen-led effort was a rising interest in trying to
preserve the integrity of the city election process. The Supreme Court has given such interests
a high place in constitutional law, finding that government has a “compelling interest in preserving the integrity of its election process.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2009) (per curiam). The reason, explains the Court, is that the functioning of participatory democracy largely
depends on public confidence in the process’s integrity. Id.
Against this backdrop, the Court has warned of the disruptive effects of injunctions affecting elections, noting their tendency to cause voter confusion and create disincentives to voting.
4

For a home-rule city such as Austin, its charter is “fundamental law,” just as a constitution is the fundamental law
of a state. See, e.g., Anderson v. City of San Antonio, 123 Tex. 163, 166, 67 S.W.2d 1036, 1037 (1934).

3

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Id.; see also Veasey v. Perry, 769 F.3d 890, 893 (5th Cir. 2014). The election that would be affected here is more than a year away, but the plaintiff’s practical objective here is to open the window for that election contest right now, and this dispute is unlikely to end with this Court’s ruling. The Fifth Circuit in Veasey chronicled the turmoil from on-and-off injunctions in election
litigation bouncing between the trial and appellate courts, id. at 894-95, and issued a stay of a
district court election-related injunction precisely to avoid the disruptions that come with such
turmoil. Courts must proceed with caution in these situations because, when an election-related
law is enjoined, the government is necessarily harmed irreparably through denial of the public
interest in enforcement of its laws. Veasey, 769 F.3d at 895.

B. Judicial restraint and necessity that Mr. Zimmerman clearly carry his full burden
Mr. Zimmerman has to demonstrate that he has a substantial likelihood of success on his
claims, that he faces irreparable injury without the preliminary relief, that whatever injury he
faces without the injunction outweighs the harm to the City and the public if the injunction
were to be granted, and that the public interest would not be disserved by the requested preliminary relief. Planned Parenthood Ass’n of Hidalgo County Texas Inc. v. Suehs, 692 F.3d 343, 348
(5th Cir. 2012).
Mr. Zimmerman’s preliminary injunction request rests solely on constitutional grounds. In
these situations, the Fifth Circuit emphasizes the necessity of “judicial restraint.” Voting for
America, Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013). The four requirements for a plaintiff to
obtain a preliminary injunction to momentarily stop enforcement of a law must be evaluated in
light of this “restraint” instruction. It is repeatedly stressed that a preliminary injunction is an
“extraordinary remedy” and should not be granted unless plaintiffs such as Mr. Zimmerman

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have “clearly carried the burden of persuasion” on each of the four requirements. Planned
Parenthood Ass’n of Hidalgo County Texas Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012) (emphasis added). The discussion below demonstrates that Mr. Zimmerman cannot carry his burden and that no preliminary injunction should issue.

III. BACKGROUND AND CONTEXT
A. Origins of the current campaign finance rules: 1997 and 2006
Austin’s campaign financing rules in much the current form have been in place for nearly
two decades, overwhelmingly supported by Austin voters.5 A citizen-initiated petition drive
succeeded in placing on the November 1997 ballot 6 a proposal to amend the city charter by adding a new set of rules for campaign financing. The measure passed with 72% of the vote. In May
2002, Austin voters turned back a repeal effort on a 51%-49% vote. A measure to amend the 1997
provisions was placed on the May 2006 ballot, again by citizen initiative; it passed with 68% of
the vote. The 2006 measure modified the now-targeted charter provisions to: require inflation-

5

In the event the Court proceeds directly to an evidentiary hearing on the preliminary injunction request, the facts
recited by the City in this response will be presented either by stipulation or through the normal course of introducing evidence. For present purposes, though, the various facts referenced in this response are drawn from matters of
public record. Some of it, such as census data, is judicially noticeable under Rule 201(b) of the Federal Rules of Evidence. The map of Austin and overlapping ZIP codes, attached as Exhibit A to the response, was prepared by city
staff using official data. Other sources of factual data used here are available on-line at the City’s website:
•
Election results data—http://www.ci.austin.tx.us/election/search.cfm
•
Mr. Zimmerman’s Texas Ethics Commission campaign finance reports for 2014 campaign—
http://www.austintexas.gov/department/campaign-finance-reports
•
Austin city council district demographic data—http://www.austintexas.gov/page/district-demographics
6

This Court ruled for the plaintiffs in a lawsuit over the validity of petition signatures and ordered the measure onto
the November 1997 ballot. See Judgment (Oct. 15, 1997) (Dkt. 40), Austinites for a Little Less Corruption! v. City of
Austin, No. 1:97cv120-SS (W.D. Tex.).

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indexing for base limits and the non-voter aggregation cap;7 double the caps; and make charities
permissible recipients for transfer of any leftover contributions.

B. Changed electoral context: single member districts and other contextual rules
For city council candidates in particular, the charter’s campaign finance rules operate in a
strikingly different electoral context than when first put into law. For the first seventeen years
after 1997’s charter amendment, Austin’s council elections were at-large. But in November
2012, through another citizen initiative, Austin voters were presented with a ballot measure
proposing major changes to the election system in the city charter, and the measure passed.
The council switched to a 10-1 system, with the mayor elected city-wide and ten council members elected from single member districts. Council elections moved to November in evennumbered years, and council member terms were changed to four-year staggered terms, with
lots drawn for the initial transition terms of two or four years.
Austin council elections remain non-partisan; the winner must receive a majority of votes
cast. Council members are limited to two terms, with the contingent possibility of more if citizen petition requirements are satisfied. A $500 filing fee must be paid to formally become a
candidate.

C. District 6 and Mr. Zimmerman’s election, fundraising, and term of office
1. The smaller electorate for Mr. Zimmerman’s election race
November 2014 inaugurated Austin council single member district elections. Until then,
candidates for city council had to run at large in a city with 790,390 people, 614,925 (77.8%) of

7

The most recent annual adjustment was in May 2014. It moved the base limit to $350 and the non-voter aggregation caps to $36,000 for general elections and $24,000 for runoffs.

6

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whom were of voting age.8 Mr. Zimmerman did not, and in 2016 does not, have to do that. Instead, he ran, and will run again in 2016 he says, in a slice of Austin situated along Austin’s
northwestern edge. District 6, Mr. Zimmerman’s council district, is a drastically smaller district, composed of only 10.5% of the city population. District 6 has 82,831 people, 62,912 (76.4%)
of them voting age.9 He received 3,729 votes, 24.22% of votes cast in the November 2014 general election, the most of the six candidates. In the December runoff, Mr. Zimmerman won
with 51.22%, receiving 4,012 votes.

2. Mr. Zimmerman’s general election and runoff campaigns: won on about
$70,000
Based on his campaign finance reports, Mr. Zimmerman raised $8,277.98 from 45 contributors in the 2014 general election, and $37,015 from 198 contributors in the runoff. He spent
$24,948.90 in the general election and $44,375.34 in the runoff. He alleges that his 2014 campaign ended with about $18,000 in debt. Complaint ¶ 16. 10

3. Mr. Zimmerman’s claim of right to receive, not make, contributions during
14-month period
Mr. Zimmerman asserts that he “will run for re-election” in District 6 in 2016, see Complaint ¶ 15, though the time to pay the filing fee to formally become a candidate does not open

8

These numbers include those in areas annexed by the City for limited purposes. Persons in those areas who otherwise meet voting eligibility requirements are entitled to vote in city council elections. Tex. Loc. Gov’t Code §
43.130(a).
9

The 2010 census population figures used here are presumed accurate for districting purposes during the decade
between official censuses. LULAC v. Perry, 548 U.S. 399, 421 (2006).
10

He later alleges that he had a balance of $1,200 in his campaign account at the end of the 2014 election cycle.
Complaint ¶ 41. It is not yet clear why he would have a balance remaining in his account when the account had
$18,000 in debt.

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until July 2016.11 But he does not, as he suggests, face a “42-month blackout period.” P.I. Motion at 3. Because he drew a two-year term, he has to wait only a little over eight months to
start fundraising for his 2016 run. Mr. Zimmerman is the sole plaintiff and does not claim that
the city charter impinges on any right of his own to make campaign contributions or spend his
own money on his own campaign. Rather, he asserts a First Amendment right as a candidate to
receive contributions for the 2016 election, as well as standing to assert the First Amendment
rights of those who would contribute but are blocked somehow by the challenged city rules.
Complaint at 6 n.5.12

IV. CHALLENGES ARE TO CONTRIBUTION LIMITATIONS, AND MR. ZIMMERMAN NOT LIKELY TO SUCCEED UNDER THE LESS INTRUSIVE JUDICIAL SCRUTINY THAT APPLIES

It has been clear for nearly forty years that the First Amendment permits government regulation of campaign contributions. See Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam).
Limits on contributions are “only a marginal restriction” on rights of free communication. Id.
at 20. A political contribution is a “general” expression of support, and increasing the size of
the contribution does not really translate into increasing the quantity of communication. Id. at
21. The Court later summarized this aspect of Buckley to be that “limiting contributions”
leaves free speech “significantly unimpaired.” Nixon v. Shrink Missouri Gov’t PAC, 528 U.S.
377, (2000).

11

See Tex. Elec. Code §§ 143.005(a), 143.007(a). The City calculates the opening date to be July 25, 2016.

12

The question of a candidate’s standing to make a First Amendment challenge to a contribution limitation on the
ground that candidates have colorable First Amendment rights to receive campaign contributions does not appear to
be definitively settled. But the Fifth Circuit, without extensive analysis, has stated that a “contributed-to” party may
suffer sufficient injury-in-fact to have standing to challenge a campaign finance restriction. Catholic Leadership Coalition of Texas v. Reisman, 764 F.3d 409, 423 (5th Cir. 2014). The City will not press at this time a standing argument
on this particular question.

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Despite repeated efforts over the years to force more intensive scrutiny of contribution limitations, laws regulating campaign contributions continue to be subject to less severe First
Amendment restrictions than apply to laws regulating campaign expenditures. Just over a year
ago, in an otherwise highly fragmented decision, eight members of the Supreme Court refused
to abandon this longstanding distinction that is so fundamental to analysis of First Amendment
challenges to rules governing campaign contributions. See McCutcheon v. FEC, 134 S.Ct. 1434,
1445 (Ch. J. Roberts, 4-member plurality opinion), 1465-1480 (J. Breyer, 4-member dissenting
opinion) (2014).13 Post-McCutcheon, the Fifth Circuit continues to recognize that contribution
limitations receive a “lessened, but nonetheless, rigorous” judicial scrutiny. Catholic Leadership
Coalition of Texas v. Reisman, supra, 764 F.3d at 424. The reason for this more relaxed scrutiny
is that contributions “lie closer to the edges than the core of political expression.” FEC v.
Beaumont, 539 U.S. 146, 161 (2003).
As further explained below, all of Mr. Zimmerman’s challenges are to contribution, not
expenditure, limitations in Austin’s city charter. 14 The Court, therefore, is to evaluate the challenges using the less intense level of judicial scrutiny reserved for restrictions on contributions.
Buckley established the level of scrutiny to be applied to contribution regulations that is still
the law today. Such restrictions are to be upheld if they serve a sufficiently important govern-

13

Justice Thomas wrote separately, concurring only in the judgment. He was the sole member of the Court willing to
jettison the distinction between First Amendment treatment of campaign contributions and of campaign expenditures. 134 S.Ct. at 1462-1465 (J. Thomas, concurring opinion).
14

The City disagrees with Mr. Zimmerman’s characterization of the leftover contribution transfer rule as an expenditure limitation.

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ment interest and are closely drawn to avoid unnecessary abridgement of speech and associational rights. 424 U.S. at 25; see also McCutcheon, 134 S.Ct. at 1444 (plurality opinion). 15
Since 1976, the Supreme Court has summarized the government interest that may be
served by contribution limitations as being prevention of quid pro quo corruption or its appearance. Buckley, 424 U.S. at 26-27. A plurality in McCutcheon stated that the Court has identified
prevention of quid pro quo corruption or the appearance of it as the only legitimate governmental interest to use to justify campaign finance restrictions. 134 S.Ct. at 1450 (plurality opinion).
But even the plurality added a variation on this theme, agreeing that provisions designed to cut
off circumvention of the restrictions also justify restrictions. at 1447 (referring to “the circumvention that was the underlying concern in Buckley”); see also Catholic Leadership, 764 F.3d at
425 n.20 (recognizing anticircumvention as appropriate objective). 16
The law, then, is that contribution limitations and restrictions are justifiable if they are directed in a sufficiently close way to: (i) prevent quid pro quo corruption; (ii) prevent the appearance of quid pro quo corruption; or (iii) cut off circumvention of those objectives. The “appearance of corruption” objective is more than a subsidiary afterthought. It is on essentially the
same footing as quid pro quo corruption itself, because its presence threatens confidence in representative government itself. Wagner v. FEC, 793 F.3d 1, 8 (D.C. Cir. 2015) (en banc).
These proper objectives have not been reduced to formulas, and their application depends
on the facts of the specific situation at hand and the details of the set of restrictions under chal15

Mr. Zimmerman protectively argues that contribution limits should be subject to more intensive scrutiny, but effectively concedes that adopting his argument would be inconsistent with existing law. See Complaint ¶ 82; P.I.
Mem. 8.
16

This anti-circumvention interest has been described as “the primary focus of the principal opinions in McCutcheon.” A. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and Speechnow, 67 Fla. L.
Rev. 389, 404 (2015).

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lenge. McCutcheon is the prime example of how case-specific the inquiry on this point must be.
There was no majority decision determining the boundaries and area of inquiry for evaluating
the governing standard for what actually counts as quid pro quo corruption or the appearance of
it. Four members of the Court (in Chief Justice Roberts’ opinion) looked at one set of factors
and their implications, and four other members (in Justice Breyer’s concurrence) looked at a
somewhat different set of factors and their implications. They reached different conclusions,
without any determinative standard being set by a majority of the Court. Only the fact that Justice Thomas took a more rigid approach than current law allows for evaluating contribution restrictions resulted in a decision in the case.
As just explained, there is no mathematical precision for determining what constitutes sufficient justification for a contribution restriction, making careful inquiry critical in any given
case. It is established, though, that certain objectives cannot be used to justify contribution limitations. Reducing the amount of money in politics or “leveling the playing field” by trying to
adjust the balance among contributors have been rejected as objectives that can support a campaign restriction. See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S.Ct.
2806, 2825-2826 (2011); see also Davis v. FEC, 128 S.Ct. 2759, 2773-2774 (2008) (contribution
restrictions to “level electoral opportunities” not acceptable justification).
Because current law is set against it, the City at this time does not seek to justify the provisions at issue on the basis of reducing money in politics or leveling the playing field for candidates.17 Rather, as discussed below, the challenged charter restrictions are drawn in such a way

17

Regulation of campaign contributions of the sort at issue in this case seem more in the nature of time, place, and
manner restrictions on speech, rather than direct regulation of speech. For the present, though, this argument is
foreclosed. See Catholic Leadership, 764 F.3d at 424 n.17 (rejecting state argument to that effect).

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that they achieve the objective of preventing quid pro quo corruption, or its appearance, or the
circumvention of restrictions achieving those purposes.

V. MR. ZIMMERMAN UNLIKELY TO PREVAIL IN HIS THREE CHALLENGES
Parts A-C, below, show that Mr. Zimmerman is unlikely to prevail on his three challenges.

A. 6-month window
Article III, § 8(F)(2) provides that a candidate for city council may not “solicit or accept a
political contribution except during the last 180 days before an election.” If Mr. Zimmerman
carries through on his plan to run for re-election in District 6, this provision means that he cannot begin to raise money from others 18 for his campaign until May 12, 2016. 19

1. The 6-month window rule is not an expenditure limitation
As an initial matter, one of Mr. Zimmerman’s arguments against this provision is readily
disposed of. He says that it should be treated as an expenditure, not a contribution, limitation
because not getting the contribution money means it cannot be spent. P.I. Mem. at 9. This is
just another way of saying that contributions and expenditures are just sides of the same coin
and should be analyzed the same way. But this argument has been rejected all along the way,
from Buckley in 1976 to McCutcheon in 2014. The § 8(F)(2) provision regulates contributions
and, for that reason, is subject to less intense scrutiny than expenditure limitations would be.

2. Temporal contribution bans are constitutionally acceptable
The obvious effect of the § 8(F)(2) restriction is to move fundraising for council campaigns
closer to the actual election, when issues become more focused and voters more attentive.

18

Loans and the expenditure of personal funds are not generally considered contributions.

19

Mr. Zimmerman includes § 2-2-7(D) of the City Code of Ordinances in this challenge. The City interprets
“rais[ing] funds” under the ordinance to mean soliciting or accepting a political contribution under § 8(F)(2). This
means that this ordinance stands or falls with its associated charter provision.

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Temporal restrictions on campaign fundraising are commonplace. State law bars campaign contributions to Texas legislators for roughly six months every other year. Tex. Elec. Code §
253.034 (barring fundraising from 30 days before to 20 days after regular legislative session).
This contribution restriction’s objective matches the objective achieved in § 8(F)(2): it seeks to
eliminate the potential for corruption, as well as the appearance to the public of corruption that
would arise if its legislators were busy raking in campaign funds at the same time it is deliberating about what legislation to enact. Temporal bans such as this on contributions have been upheld as constitutionally legitimate efforts to prevent corruption and the appearance of corruption. North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 715 (4th Cir. 1999), cert. denied,
528 U.S. 1153 (2000).
Without acknowledging the temporal ban in state law, Mr. Zimmerman nonetheless suggests that the situation of local city councils is different since, unlike the legislature, the council
meets through the year. P.I. Mem. at 18. But that fact doesn’t call the temporal restriction into
question. It only highlights why the City has to fashion its rule for when the local fundraising
window is open or closed differently than the way state law is fashioned for legislators. Barring
fundraising while legislating cannot be done at the city level since this would mean there could
be no fundraising at all—an unacceptable proposition—inasmuch as local legislative activity
happens throughout the year. If the city is to combat the obvious appearance of corruption that
comes from its elected officials accepting contributions at the very same time they are legislating on matters nearly certainly to directly affect their contributors, it is left with only one reasonable alternative: devise a way to try to link the contributions more directly and obviously to
the political campaigns that they are meant to support.

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This is precisely what § 8(F)(2) does. It allows the fundraising window to be open starting
six months before the campaign. For Mr. Zimmerman, an incumbent council member who says
he is going to have his name on the ballot for the same district a little over a year from now, this
means that his entire first term of two years cannot be devoted to raising campaign funds at the
very same time he is voting on ordinances and matters of other local significance—no doubt
often to the very people who, but for § 8(F)(2), would be making the contributions. This way,
the public is not presented with the troubling specter of contributions rolling in at the same
time Mr. Zimmerman is voting on substantive matters directly affecting some of the contributors. Even though all may have confidence that Mr. Zimmerman would not himself be engaging
in direct quid pro quo corruption by effectively voting his contributors’ wishes and interests, this
situation nonetheless would create the very definition of the appearance of that kind of corruption. The City cannot totally eliminate that kind of appearance because, both under the First
Amendment and for the election system to function properly, it must allow political candidates
for local office to raise money to run. But it can, and has, taken the reasonable step of tying the
fundraising to the actual election activity by opening the fundraising window for six months.

3. Mr. Zimmerman faces only an 8-month blackout period
Mr. Zimmerman does not really address this rationale. Instead, he opens his argument on
the issue by trying to frame the issue as being how long the window is closed, not how and when
it is open. And he mis-frames even that issue. He does not face a 42-month blackout period, as
implied. P.I. Mem. at 9. He faces only an 8-month blackout period, between now and the opening of the window on May 12, 2016. That is not materially different from the state law blackout
period for Texas legislators.

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4. Equalization and levelling arguments directed at the temporal ban are constitutionally off-limits
Mr. Zimmerman identifies what he says are problems with the operation of § 8(F)(2). One
is that it means that wealthy candidates can begin campaign activity while those with less personal wealth have to wait. P.I. Mem. at 9. Another is that the provision tips the scale in favor of
incumbents over challengers. Id. at 10. Mr. Zimmerman, of course, is the incumbent so it is difficult to see how the second problem is one presented by his claim in this case. Besides, the 60day window rule treats incumbents and challengers exactly the same. Buckley determined that,
unless there is proof of invidious discrimination against challengers as a class (and there isn’t
here), courts should avoid invalidating legislation imposing even-handed restrictions. 424 U.S.
at 31.
In any event, governing First Amendment rules in the campaign finance realm prevent
both the Court and the City itself from using either of the identified problems as a hammer for
bludgeoning § 8(F)(2). Leveling the playing field for candidates, as Mr. Zimmerman himself
recognizes,20 is not a permissible goal of campaign finance regulation. See Bennett, supra, 131
S.Ct. at 2825-2826; Davis, supra, 128 S.Ct. at 2773-2774. Yet this part of his argument against
the 6-month window rule is based on the legally discredited “levelling” policy argument.

5. Temporal bans are less intrusive on First Amendment rights than contribution caps, and the courts uphold them if supported by evidence
Temporal restrictions in the campaign finance arena are more protected than straight-up
contribution limitations. As Buckley described it, a temporal ban is an even more “marginal restriction upon the contributor’s ability to engage in free communication” than a cap on contri20

P.I. Mem. at 11 (citing McCutcheon for its disapproval of “levelling the playing field” justifications for campaign
restrictions).

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butions. 424 U.S. at 20-21, quoted in Thalheimer v. City of San Diego, 645 F.3d 1109, 1122 (9th
Cir. 2011). Court rulings upholding temporal bans reflect this broad observation.
In the already-cited Bartlett decision, the Fourth Circuit upheld North Carolina’s ban on
contributions from certain sources during legislative sessions. Rebuffing an argument that the
sums would be too small to really be an enticement for a quid pro quo vote, the court explained
that these kinds of bans served compelling interests because “[c]orruption, either petty or massive, . . . distorts both the concept of popular sovereignty and the theory of representative government.” Bartlett, 168 F.3d at 715.
Relying in part on Bartlett,21 the Ninth Circuit in Thalheimer upheld a temporal ban on
fundraising in the context of non-partisan city elections. 645 F.3d at 1121-1124. In response to
an argument that Bartlett was distinguishable because the ban it upheld was shorter, the Thalheimer court held that it was not the business of courts to calculate with exactitude how much
time was too much or too little. 645 F.3d at 1123. Such details are left to legislative judgment. Id.
Thalheimer is particularly powerful medicine supporting the 60-day window rule, especially
since it was dealing with non-partisan municipal elections of the sort involved here. And Mr.
Zimmerman is quite aware of the support Thalheimer provides the City. Presciently anticipating
that the City would highlight Thalheimer, he tries to marginalize it, P.I. Mem. at 16-17, arguing
that it cannot be reconciled with the Catholic Leadership decision.22 His argument is that, together, McCutcheon and Catholic Leadership overwash Thalheimer. But the basis for his argument on this point doesn’t hold water. His logic is that McCutcheon and Catholic Leadership
21

th

Thalheimer also relied on Gable v. Patton, 142 F.3d 940 (6 Cir. 1998).

22

He also argues that time and McCutcheon have eclipsed Thalheimer (decided a whole four years ago). But the Ninth
Circuit doesn’t see it that way. Only two days ago, the appeals court cited Thalheimer with approval. Lair v. Bullock,
th
2015 WL 5103023 at *7 & n.7 (9 Cir. Sept. 1, 2015).

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have essentially invalidated aggregate contribution caps and that the City’s 60-day window rule
operates in effect as an aggregation cap, but set at zero. P.I. Mem. at 11-16. But this argument
runs headlong into the contrary ruling in Buckley (and quoted in Thalheimer) that temporal bans
are different from contribution caps because they intrude less into the First Amendment domain. Buckley, 424 U.S. at 20-21. McCutcheon and Catholic Leadership don’t speak to temporal
ban issues.23
Mr. Zimmerman argues that a relatively recent decision issuing from the Southern District
of Texas, Gordon v. City of Houston, 79 F.Supp.3d 676 (S.D. Tex. 2015), undermines the City’s
defense here of § 8(F)(2). P.I. Mem. 15, 18. The court in Gordon preliminarily enjoined a City
of Houston temporal ban on fundraising for Houston council races. But Houston’s defense of
its ordinance does not provide the template for Austin’s defense of its charter provision. The
court in Gordon noted, over and over again, that the city “failed to prevent evidence” supporting the temporal ban and that missing from the filings was “any evidence” of a nexus between
the temporal ban and what might appear to be quid pro quo corruption. 2015 WL 138115 at **11,
12. And the court noted what it called the “crucial distinction” between Thalheimer and the
case before it: in one case, the city presented supportive evidence; in the other, it didn’t. Gordon, 2015 WL 138115 at *12.
At a hearing on preliminary injunction (or at a later merits hearing), the City anticipates
that it will provide evidence to support the 6-month window rule and what its objective is. As

23

Catholic Leadership analyzed what it called a hybrid campaign finance rule that had elements of both expenditure
limitations and contribution limitations. The problem it found on the contribution side of the analysis was that the
provision imposed an unjustifiable contribution cap during a certain period. It did not invalidate the provision because it had a temporal ban.

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the argument here shows and as the evidence will establish, Mr. Zimmerman is not likely to
prevail on his challenge to § 8(F)(2).

B. The non-voter aggregation cap rule
Article III, § 8(A)(3)’s first sentence provides that a candidate may not “accept an aggregate contribution total of more than $30,000 per election, and $20,000 in the case of a runoff
election, from sources other than natural persons eligible to vote in a postal zip code completely
or partially within the Austin city limits.” Indexed for inflation, the caps are now $36,000 for
the general election, and $24,000 for a runoff.
The map attached as Exhibit A to this response identifies (in green and blue) where those
(at least, eligible voters) who are not subject to the aggregate cap. As the map reflects, swept
within the area exempt from the aggregate cap is not only Austin itself, but parts or all (e.g.,
West Lake Hills) of many of the municipalities in the greater Austin metro area.

1. Mr. Zimmerman’s questionable standing
Just focusing for the moment on the general election, the $36,000 aggregate cap that Mr.
Zimmerman challenges as too low would, if capped out in his 2016 race, mean that he would
have raised 4.4 times more from non-Austin area voters than he raised in total for his 2014 general election campaign. Assuming each contributor subject to the § 8(A)(3) cap had maxed out
with a $350 contribution, there would have been nearly three times as many “aggregate cap”
contributors as the entire number of contributors to his 2014 general election effort. As merely
a practical matter, this comparison suggests that the caps currently in operation pose no serious
threat to the expression by Mr. Zimmerman’s non-Austin area supporters of their First
Amendment right to make campaign contributions to support him.

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Related to this circumstance is the additional fact that Mr. Zimmerman has failed to identify a single potential contributor from outside the § 8(A)(3) zone (graphically identified in Exhibit A), much less provide any reasonably concrete indication that there could be enough of
them this election cycle to contribute more than $36,000 to his 2016 general election campaign.24
Under these circumstances, Mr. Zimmerman’s challenge to the non-voter aggregation cap
rule is not justiciable. Article III standing requires, among other things, that the injury complained of be either “actual” or “imminent.” Clapper v. Amnesty International USA, 133 S.Ct.
1138, 1147 (2013). Allegations of “possible” future injury are insufficient to satisfy the “imminence” requirement. Id. In the situation presented by Mr. Zimmerman, there is nothing to indicate that exceeding the cap set by § 8(A)(3) is remotely on the horizon, much less that the
aggregate cap’s existence threatens imminent harm. Mr. Zimmerman has a limited constituency, about 83,000 people. Fundraising during his 2014 campaign came nowhere near reaching
the non-voter aggregation cap. In fact, the general campaign didn’t even raise enough money
from those not subject to the camp to come anywhere near the non-voter cap. In light of these
facts, Mr. Zimmerman’s effort to overthrow the non-voter aggregation cap is little more than
an expression of theoretical distaste for it. Realistically, its existence has worked no harm on
him, whatever his hopes for the 2016 campaign.
It is true that standing rules are subject to being relaxed in the context of First Amendment
claims that are being asserted (as Mr. Zimmerman’s purports to be) on behalf of others whose
First Amendment rights might be adversely affected by the provision being challenged. See, e.g.,
24

The City is reviewing Mr. Zimmerman’s 2014 campaign finance reports to try to gather at least an approximation
of the amount of contributions he received from outside § 8(A)(3)’s ZIP code envelope. That review has not yet
been completed.

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Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984). In this case,
the question would be whether the standing rule should be relaxed to allow Mr. Zimmerman to
assert the rights of potential non-voter contributors who might want to add to his campaign coffers beyond the $36,000 cap.
Mr. Zimmerman, though, has not alleged that there are such people, identified or not. He
alleges little more than that he wants to solicit funds from those outside the ZIP code envelope,
through the use of social media and through the purchase of donor lists with contact information for donors spread across the country. Complaint ¶¶ 31-33. There is no allegation that he
realistically would expect such preparations to yield non-voter donations in excess of the
$36,000 cap.
This part of Mr. Zimmerman’s challenge is simply asking the Court to engage in an exercise in constitutional theory. It is not justiciable, and, thus, Mr. Zimmerman is not likely to succeed on this claim.

2. Appearance of quid pro quo corruption and anticircumvention principle
Mr. Zimmerman is correct to point out that residency-based contribution limitations have
been disfavored by the courts. P.I. Mem. at 23-25. But the authorities he cites do not definitively answer the question presented here.
VanNatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998), cert. denied, 525 U.S. 1104 (1999), invalidated an Oregon ballot measure that would bar candidates from state office from using campaign contributions from those outside the candidate’s district. Subjecting the measure to the
less rigorous, but still close, scrutiny applicable to contribution regulations, the court found that
the measure did address the important state interest in having elections untainted by corrup-

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tion. But the court invalidated the measure because the size of contributions was unaddressed,
including large contributions within the area of permissible donors. 151 F.3d at 1221. 25
Austin’s non-voter aggregation cap is different from the measure addressed in VanNatta.
First, it is not a ban on non-territorial contributions. Such contributions are allowed, but they
are capped. Second, through its base limit restrictions, Austin does limit the size on contributions within the area of permissible donors.
There also is another important distinction between VanNatta and this case. The measure
under the microscope in VanNatta applied to state offices. The candidates were seeking election to offices whose legislative efforts would reach statewide. The Austin city council’s range
is far more limited. It can only legislate for the city itself and, to a more limited extent, in the
adjoining extraterritorial jurisdiction.
Mr. Zimmerman also cites the Second Circuit decision in Landell v. Sorrell, 382 F.3d 91 (2d
Cir. 2004), rev’d on other grounds sub nom. Randall v. Sorrell, 548 U.S. 230 (2006). P.I. Mem. at
23. Landell invalidated a Vermont statute that limited out-of-state contributions to 25 percent
of all candidate contributions. Id. at 146-148. One part of the court’s rationale was that the state
had been unable to provide an explanation for why it had an interest in eliminating small donations only from non-residents. Id. at 147.26
Landell also is distinguishable. Austin establishes the same $350 base limit for both the inside-the-ZIP code-envelope donors and those outside the envelope. And, still again, the statute
25

VanNatta’s status as continuing Ninth Circuit precedent is uncertain. See Montana Right to Life Ass’n v. Eddleman,
th
343 F.3d 1085, 1091 n.2 (9 Cir. 2003(questioning whether VanNatta survived a particular Supreme Court decision).
But only in the last few days, the Ninth Circuit has held that some parts of Eddleman remain good precedent. Lair v.
Bullock, supra, 2015 WL 5103023 at *6-7.
26

The court’s characterization of the statute as “eliminating” small out-of-state donations is not quite accurate since
the statute allowed them up to the 25 percent threshold.

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in Landell governed those running to hold office in a statewide legislative body, not in the more
tightly confined Austin city hall.
The anti-corruption objective of the non-voter aggregation cap is not hard to fathom. Land
development rules—zoning, creation of special districts, and such—are core activities for the
city council. It is commonplace for interested parties from outside the Austin area to hold interests in land subject to city council development rules. And the financial stakes for such owners
in what actions the council takes with respect to rules for their land. Without the aggregate cap,
such far away interests could find ways to bundle quite large campaign donations and deliver
them to a crucial councilmember who only represents 80,000 or so people. This would create a
quite disturbing appearance of quid pro quo corruption. With the aggregate cap, donations from
far away places would still be acceptable but limits would at least exist.
The challenged aggregate cap also plays an important role in preventing circumvention of
the base limits. Distant friends and family of local contributors could be enlisted to effectively
evade the base limits, with local contributors finding a way to funnel money to those relatives
who in turn could make contributions that eventually mounted far beyond the cap. And the
council recipient could be made aware of the fact that this was being done. Neither local officials nor local media can reasonably be expected to monitor such hidden, far-flung connections.
Disclosure would serve little purpose. The cap is at least one way to keep such circumvention
efforts from overwhelming the system.
The City is by no means suggesting that this is Mr. Zimmerman’s plan. But his challenge to
§ 8(A)(3)’s first sentence would open the doors to it happening.

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The scenarios laid out above are not “divorced from reality,” as Chief Justice Roberts’
plurality opinion in McCutcheon labeled funding scenarios found to offer insufficient justification for the aggregation limitation invalidated there. McCutcheon, 134 S.Ct. at 1456. McCutcheon,
in fact, does not address the kind of aggregation situation set up by the non-voter aggregation
rule at issue here. The aggregation scenario in McCutcheon involved rules about aggregate limits
on a single donor. Here, no single donor is targeted by the aggregation rule. That couldn’t happen because a single donor is subject to the base limit. So, contrary to the preliminary injunction
memorandum’s argument, McCutcheon does not dictate the result on this issue.
Mr. Zimmerman is not likely to prevail in his challenge to § 8(A)(3)’s first sentence. It is
appropriately designed to blunt quid pro quo corruption and the appearance of it, as well as to
block efforts to circumvent the base limit rule.

C. LEFTOVER CONTRIBUTION TRANSFER RULE
Article III, § 8(F)(3), no later than the 90 th day after a general election (or runoff election,
if there is one), a candidate or officeholder “shall distribute the balance of funds received from
political contributions in excess of any remaining expenses for the election: to the contributors,
a charitable organization, or the Austin Fair Campaign Fund. But up to $20,000 of any such
funds may be retained for officeholder expenses. § 8(F)(6).

1. No standing
This provision had no effect whatever on Mr. Zimmerman. He ended his 2014 campaign
with $18,000 in debt, so he had no funds that would have to be distributed under § 8(F)(3). Nor
is there any reason to expect he will be faced with having to act under that provision in 2016.
That would be pure conjecture. As a result, Mr. Zimmerman does not have standing to attack

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this provision. He has no actual or imminent injury as a result of the provision’s operation, and,
under the longstanding principles recited in Clapper, supra, the Court has no jurisdiction to
consider his claim.27
Buttressing the conclusion that Mr. Zimmerman lacks standing on this part of his claim are
two arguments he makes against the provision, each of which describes the very opposite of the
situation in which he finds himself. One of his criticisms of the leftover contribution transfer
provision is that it advantages incumbents (that is, successful candidates) as compared to unsuccessful candidates. P.I. Mem. at 30. But, as already emphasized, Mr. Zimmerman is the incumbent here. According to his argument, he is given at least a theoretical benefit by the rule.
Another of his criticisms is that the rule captures even a candidate’s personal contribution to
his campaign. P.I. Mem. at 30. Not only does Mr. Zimmerman not have any money remaining
in the till to be captured; he does not appear to have made a contribution from his own funds to
the campaign.28

2. Absence of First Amendment implications
Mr. Zimmerman challenges this rule as an expenditure limitation. P.I. Mem. at 28. The
leftover contribution rule does not really implicate First Amendment concerns at all, whether
the leftover disbursement rule is classified as a contribution limitation or an expenditure limitation.
The residue remaining in a campaign fund at the end of the campaign are campaign contributions, a form of First Amendment expression under Supreme Court precedent. As Buckley

27

Here, there is no third-party standing issue to evaluate. By definition, the contributors have already contributed.

28

The City has not yet had time to fully confirm the last statement in the text, but has drawn the conclusion from
Mr. Zimmerman’s representations in pleadings about his financial situation.

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explained, such political contributions are general expressions of support for a candidate in a
campaign. 424 U.S. at 21. But they are not generalized expressions of support forevermore for a
candidate. They are for First Amendment expressions of support for the candidate in a specific
campaign—the one that’s over, not the one that may start up again later. 29 Political support,
including support through contributions, is a fickle thing. Support for a candidate, financially or
otherwise, may not still be there in the next election.
There is at least a small example of this fact in Exhibit E to Mr. Zimmerman’s motion. Five
individuals declare their support for Mr. Zimmerman in the November 2016 elections and declare that they would, but for the challenged rules, contribute funds to that campaign. 30 None of
them, though, contributed funds to Mr. Zimmerman in his 2014 general election race, and only
two contributed to his run-off campaign. They exemplify the way financial support for a campaign proceeds one campaign at a time.
On the expenditure side, there is no further First Amendment expression to occur in connection with the campaign that is over—because it’s over. Despite the fact that a candidate
might have money left over in a campaign account does not give that candidate unfettered right
to spend it in whatever way he wishes. He can’t convert the funds to personal use. Tex. Elec.
Code § 253.035(a). All Austin’s § 8(F)(3) does is in effect re-set the First Amendment clock.
As far as the completed campaign is concerned, both the contributors and the candidates have

29

The district court in SEIU v. Fair Political Practices Comm’n, 721 F.Supp. 1172 (E.D. Cal. 1989), did not directly
address this point, but instead seems to have accepted as a given that a campaign contribution and expenditure of it
establish a kind of free field of speech in perpetuity, even if it is unrelated to the impetus for the original contribution.
The City’s position is that the SEIU approach is wrong. The Alaska Supreme Court took a different constitutional
approach and upheld a carryover ban. State v. Alaska Civil Liberties Union, 978 P.2d 597, 631-32 (Alaska 1999).
30

None, by the way, is from outside the ZIP code envelope.

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had their full say as they wished (and had the funds) to say it. This does not raise a First
Amendment issue.

3. The rule’s anti-corruption purpose
Mr. Zimmerman argues that the rule does not address quid pro quo corruption. P.I. Mem. at
27. This is wrong. Likely winners are often apparent before an election formally closes. Those
with special interest in city council actions, who may have set on the sidelines hedging their bets
during the campaign, can detect the move and swarm to begin making contributions, regardless
of whether the candidate is short on funds. Without the leftover contribution transfer rule, they
will effectively have “banked” favor with the soon-to-be incumbent council member. This kind
of last minute contribution rush is a well known political phenomenon and candidates and their
consultants are quite adept at using it to their advantage. There really can be little question that
this creates troubling appearances of quid pro quo corruption. The rule of § 8(F)(3) addresses
the problem in a careful, tailored fashion.
As Mr. Zimmerman points out, Shrink Missouri Gov’t PAC v. Maupin, 71 F.3d 1422 (8th
Cir. 1995), cert. denied, 518 U.S. 1033 (1996), ruled that arrangements much like the Austin one
are unconstitutional. Id. at 1427-1429. The primary fault it found was the way that the carryover
ban limited the “ability of a candidate to retain contributions for future elections.” Id. at 1427.
This analysis seems incomplete and incorrect, and the City suggests to the Court that it should
not be used here.

VI. BALANCING OF HARMS AND EFFECT ON PUBLIC INTEREST
Mr. Zimmerman has offered nothing to indicate that he will suffer any harm at all if the
non-voter aggregation cap rule and the leftover contribution transfer rule are left in place pend-

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ing trial on the merits. The leftover contribution rule would not even be triggered until after
November 2016, so he cannot possibly be harmed by maintenance of the rule in the interim.
And there is no indication from the 2014 campaign that he will suffer any from maintenance of
the non-voter aggregation either.
Any harm that he might suffer from interim maintenance of the 6-month window rule is
modest at best. Even were Mr. Zimmerman correct that the current window is open too short a
time, he has failed to offer anything to support the proposition that it should be open as long as
he seeks.
As explained early in this response, the public has a compelling interest in preserving the
integrity of its election process. Purcell, 549 U.S. at 4. The Fifth Circuit has recently held that,
when an election law is provisionally enjoined, the government is harmed irreparably. Veasey,
769 F.3d at 895. The Austin public is an unusually attentive and informed public. Its persistence
is the reason the 1997 charter amendments on campaign finance became the fundamental law of
the City. There can be no question that their interest, which is the public interest after all, will
most definitely be harmed by any pre-merits ruling that undoes the effort to ensure that Austin
council elections are as free from corruption and the appearance of corruption as the law will
allow.

CONCLUSION
The Court should deny Mr. Zimmerman’s motion for a preliminary injunction.

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Respectfully submitted,
Anne L. Morgan, INTERIM CITY ATTORNEY
Meghan L. Riley, CHIEF, LITIGATION
State Bar No. 24049373
Meghan.Riley@austintexas.gov
Jennifer Ferri, ASSISTANT CITY ATTORNEY
State Bar No. 24065224
jennifer.ferri@austintexas.gov
City of Austin-Law Department
Post Office Box 1546
Austin, Texas 78767-1546
(512) 974-2526
(512) 974-6491 fax
___/s/ Renea Hicks____________
Renea Hicks
Attorney at Law
Texas Bar No. 09580400
LAW OFFICE OF MAX RENEA HICKS
101 West 6th Street, Suite 504
Austin, Texas 78701
(512) 480-8231
fax (512) 480-9105
rhicks@renea-hicks.com
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN

CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of September, 2015, I served a true and correct copy of the
foregoing pleading on all counsel of record through the Court’s ECF system.
__/s/ Renea Hicks_____________________
Max Renea Hicks

28