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Interoffice

CITY OF HOUSTON
Legal Department

Mayor, Annise D. Parker


City Council

To:

Christopher Newport
Marta Crinejo
William-Paul Thomas

CC

Correspondence

From:

David M. Feldman
City Attorney

Date:

January 15, 2015

Subject:

Campaign Finance Restrictions

In 1992, the City adopted Chapter 18 of the Code of Ordinances entitled Ethics and
Financial Disclosure pertaining to elected officials and campaigns. Since that time, the United
States Supreme Court has issued two seminal opinions that have altered the course of
election law. In 2010, the United States Supreme Court decided Citizens United v. Fed. Elec.
Commn,1 and recognized that the First Amendment has its fullest and most urgent application
to speech uttered during a campaign for political office.2 Very recently, in April of 2014, the
U.S. Supreme Court decided McCutcheon v. Fed. Elec. Commn,3 and held that government
may not regulate contributions simply to reduce the amount of money in politics, or to restrict
the political participation of some in order to enhance the relative influence of others.4 Also in
2014, the Fifth Circuit Court of Appeals invalidated as unconstitutional provisions in the Texas
Election Code relating to the waiting period required for the receipt of campaign contributions
in excess of $500.00 for general purpose committees.5
As I previously advised you, last week Federal Judge Sim Lake invalidated Section 18-35(a) of
our Code of Ordinances (the temporal limits, or blackout period, for candidates to raise funds
for City office), and held it is an unconstitutional limitation on free speech.6 In the case of
Gordon v. City of Houston, Judge Lake enjoined the City from enforcing the temporal ban on
soliciting or receiving contributions. Thus the window of fundraising from February 1 of the
election year until March 4 of the following year is unenforceable and candidates for City office
do not have any restrictions on when they can raise funds and solicit contributions, except for
the limitation on contractor contributions during the contract award period. See Sec. 18-36 of
the Code of Ordinances.
While the City defended Section 18-35(a), one of the requirements to preserve this law is
evidence of the potential for quid pro quo corruption. According to Judge Lake, the City had
insufficient evidence of such potential during the blackout period, since elected city officials
130 S. Ct. 876 (2010).
Id. at 898.
3 134 S. Ct. 1434 (2014)
4 Id. at 1441.
5 Catholic Leadership Coalition of Tex. V. Reisman, 764 F.3d 409 (5th Cir. 2014).
6 Gordon v. City of Houston, C.A. No. 14-03146 (S.D. Tex. January 9, 2015)
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serve continuously and there is nothing to distinguish the potential for corruption during the
blackout and non-blackout periods. Having reviewed his decision thoroughly, and given the
clear, even growing trend of constitutional case law, it is my opinion that Judge Lakes ruling is
most likely a correct statement of current law as it applies to Section 18-35(a). In light of the
recent Fifth Circuit opinion on Texas election law limitations, it is my opinion that it would not
be worthwhile for the City to appeal Judge Lakes ruling. I recommend that the City not appeal
the ruling but instead repeal Section 18-35(a) from its Code of Ordinances.
Without the temporal limits of Section 18-35(a), it is my opinion that Section 18-38(b) (which
was enacted originally in 1994 and amended in 2005), is subject to the same constitutional
challenges to the extent that it could be said to limit the expenditure of funds raised in
connection with a non-City office prior to February 1 of an election year. As Judge Lake made
clear, expenditure limitations operate in an area of the most fundamental First Amendment
activities7 and a restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of expression.8 In
Gordon, Judge Lake also instructs that a restriction on expending political contributions is
constitutionally infirm. Therefore, the City cannot prevent a candidate for City office from
expending funds that were raised in the context of a non-city office prior to February 1 of a City
election year and cannot prohibit the utilization of these funds for City office, so long as the
restrictions on maximum individual and PAC contributions are met.9

Gordon v. City of Houston, at p. 18, citing Buckley v. Valeo, 96 S. Ct. 612 (1976).
Id.
9 Presently pending in state court is a suit filed by Chris Bell as candidate for Mayor, against the City and
the City Attorney, challenging my interpretation of Section 18-38(b) prior to Gordon. Specifically, it was my
opinion that 18-38(b) placed no limit on the amount of money that could be used from a non-city officeholder
account, whereas Bell believed that only a maximum amount of $10,000 could be used. My prior
interpretation of 18-3(b) is no longer relevant, in light of Gordon.
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