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NLF challenges Dripping Springs bond election
 
Zimmerman's Petition Seeking U.S. Supreme Court Review of Austin Campaign Contribution Limits Gains Momentum as High Court Requests Response from City
 
AUSTIN, TEX.— This week, the Supreme Court of the United States issued an order requiring the City of Austin to respond to the request filed in July by Don Zimmerman, former District 6 Councilmember, seeking High Court review of two of Austin’s limits on campaign contributions.
 
Austin had previously notified the Court that it would waive its right to file a response.  The Court’s action this week requires the City to respond to Zimmerman’s petition by September 13.
 
“This is significant,” said Zimmerman’s attorney, Jerad Najvar, who specializes in campaign finance and constitutional litigation.  “The call for a response comes after each Justices’ chambers has preliminarily reviewed the case, and indicates it caught the attention of at least one Justice or the Justice’s clerks.  It is a very encouraging sign.” 
 
Statistically, the chances of the Court accepting the case for oral argument increase from about 3.5% to 17% when the Court requests a response.[1]  The Public Policy Legal Institute and Institute for Free Speech, two leading First Amendment public interest groups, have also weighed in in support of Zimmerman with an amicus brief filed today.
 
Zimmerman’s petition asks the Court to strike down Austin’s $350 base limit on campaign contributions as a violation of the right of political association under the First Amendment.  “There are a few reasons we believe the base limit is unconstitutional,” said Najvar, “but perhaps the centerpiece of this challenge that may interest the Court is that, despite the Court’s recent reiteration in McCutcheon that the right to make political contributions is fundamental, and that limits on such rights deserve rigorous scrutiny, the courts are still reluctant to scrutinize base limits with even the same rigor applied in reviewing limits on commercial speech.”  Zimmerman’s petition includes this summary:
 
[T]he Base Limit should not have survived even a cursory inquiry into whether it was calibrated at a level that addresses the requisite interest without unnecessarily abridging First Amendment rights.  The fact that there was no evidence of any discussion or analysis leading City officials to peg the limit at $300 in 2006, and that the City actually responded to Petitioner’s interrogatory with an admission that it does not target large contributions, reflects the wilting level of review that at least some government officials believe allows them to truncate these most fundamental rights.  As this Court said last term in a different context, “surely a First Amendment issue of this importance deserved better treatment.”  Janus v. American Federation of State, County, and Municipal Employees, Council 31, __ S. Ct. __, No. 16-1466, slip op. (2018).  The Fifth Circuit, in refusing to engage Zimmerman’s argument that $350 is not tailored to the government interest, applied a level of “deference to legislative judgments [that] is inappropriate in deciding free speech issues.”  Id.; see also McCutcheon, 134 S. Ct. at 1441-42 (“those who govern should be the last people to help decide who should govern”) (emphasis in original).  As Zimmerman demonstrated above, this deference is not mandated by Buckley, but emanates from a misapprehension of Shrink, and this Court can clarify that a meager $350 limit is different in kind from the $6,248 limit Buckley upheld, in a framework that also afforded the various alternative avenues identified.
 
Zimmerman’s argument has the support of two judges of the Fifth Circuit, who dissented from the full Fifth Circuit’s denial of rehearing en banc in February.  Judges Jim Ho and Edith Jones would have held that Austin’s base limit is unconstitutional because it is too low.
 
Najvar has prevailed in a campaign finance case at the Court previously, as co-counsel to Shaun McCutcheon.  In that 2014 case, McCutcheon v. FEC, the Supreme Court struck down the federal aggregate contribution limits that had been part of federal campaign law since the 1970s.
 
READ ZIMMERMAN’S PETITION FOR CERTIORARI HERE
 
The case is Zimmerman v. City of Austin, Tex., No. 18-93, pending in United States Supreme Court.  Zimmerman has already prevailed on two other issues in the case after trial in December 2015, as the district court permanently enjoined Austin’s “blackout period” that prevented fundraising until the last six months before Election Day, and the “disgorgement provision” that required candidates to disgorge campaign funds within 90 days after an election.
 
Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of Najvar Law Firm, PLLC in Houston. He secured a new election after prevailing in an election contest in Hidalgo County in 2014, and is currently litigating a challenge to the City of Houston’s billion-dollar pension obligation bond election held in November 2017.
 
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[1] See David C. Thompson and Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certirari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 Geo. Mason L. Rev. 237, 250 (2009).  These figures are for paid (i.e, non-indigent or “in forma pauperis”) cases.



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