The El Paso Court of Appeals is deliberating whether to intervene in a case in which Mayor John Cook claims churches and other corporations have illegally contributed to a campaign to recall him and two city representatives.
But what the courts ultimately do is likely to have implications far beyond the composition of the El Paso City Council. Some legal experts said last week that the case or a similar one could be taken up by the U.S. Supreme Court and used to make new law.
Cook is challenging a judge's ruling that is allowing the recall to go forward and argues that if the appellate court does not overrule the lower court, it will help free powerful corporations to harass elected officials they don't like. Meanwhile, the group behind the recall says an important decision last year by the U.S. Supreme Court already gives corporations that power.
First Amendment and election-law experts say that if the case goes high enough in the courts, it could answer some lingering questions from last year's controversial decision in the Citizens United v. Federal Election Commission case.
In it, a divided court ruled that the First Amendment protects some political expenditures by corporations. The group seeking to recall Cook and other El Paso officials is arguing it protects their effort as well. "This is a very live question," Richard Briffault, a Columbia University law professor who studies campaign-finance law, said of the El Paso case. "It could go either way."
In addition to outraging many who
think business already has too much political power, Citizens United
overturned two previous Supreme Court decisions and it left many
unanswered questions about how it would be applied.
Citizens United overturned a Supreme Court decision from 1990 and another from 2003, both of which said the government could limit campaign spending by corporations.
Citizens United said the government could not limit independent corporate expenditures, but did not address other types of corporate contributions, leaving open the question whether limits to them would also be declared unconstitutional.
The El Paso recall case could answer some of those questions, said Hugh L. Brady, an Austin attorney who teaches at the University of Texas and works closely with the state House of Representatives. The House revised state election law this year to conform to the Citizens United ruling. "It'll definitely fill in the outer edges," Brady said.
Mayor Cook says churches illegally contributed to the effort to circulate recall petitions against him and city Reps. Steve Ortega and Susie Byrd.
A political group, El Pasoans for Traditional Family Values, is leading the recall fight. Its members were angered when Cook, Byrd, Ortega and others voted this year to restore health benefits to gay and unmarried partners of city employees after voters ended the practice in a ballot initiative last November.
The group is registered with the city as a political-action committee. But a leader, Pastor Tom Brown, kicked off the recall drive with an announcement to his congregation at Word of Life Church and has used his Tom Brown Ministries website to recruit volunteers and direct people to his and three other churches to sign recall petitions.
Cook says that violates the state law that says corporations -- including nonprofits such as churches -- "may not make a political contribution in connection with a recall election, including the circulation and submission of a petition to call an election."
The group pushing the recall says that didn't happen. But in a ruling earlier this month on a request to stop the recall drive, County Court 3 Judge Javier Alvarez said it doesn't matter if it did. Even if petitions were gathered illegally, he ruled, the recall election should go forward.
The officials subject to the recall could sue after the election if they didn't like the way it turned out, Alvarez said. "It's going to cost the city of El Paso a lot of money, but that's what the people want," the judge said.
Judges historically have been reluctant to overturn elections, Brady said. So Alvarez's remedy might not be very practical.
Cook has appealed Alvarez's decision, and the case is sitting before the court of appeals.
Cook's attorney, Mark Walker, says what the people want is expressed through the laws of the state and, in his ruling, Alvarez effectively ignored them.
In a court hearing Monday, Walker said that, if allowed to stand, Alvarez's ruling would allow corporations to harass with recall attempts anybody they wanted to.
He used Walmart as a hypothetical. What would stop the greeters from circulating recall petitions at the door, cashiers from again asking people to sign in the checkout line and people checking receipts from asking a third time as customers left the store, Walker asked.
Alvarez "set a dangerous precedent, and should other trial courts in Texas follow his example, no company or church with an agenda will face any civil deterrence from punishing officials who vote against an issue or agenda of the moment," he wrote in an appellate brief.
The election code provides a criminal penalty -- a third-degree felony -- for people who violate the law and District Attorney Jaime Esparza is examining whether to charge Brown. Such charges are rare in Texas and likely to become even more so in the wake of the Citizens United ruling and the uncertainty it has spawned, Brady said.
There also could be tax implications for corporations that try to tell people how to vote for specific candidates. Churches could lose their exemptions and a Washington, D.C., group, Americans United for the Separation of Church and State, has complained of Brown's activities to the IRS. Even that group says it's unclear how often the IRS strips misbehaving churches of their tax exemptions.
Regardless, the recall group is arguing that last year's Citizens United decision trumps Texas election law, and some of its members seem to believe it trumps IRS rules as well.
In the decision, the high court ruled that "a corporation has First Amendment rights that are equal to those of an individual," Theresa Caballero, an attorney representing El Pasoans for Traditional Family Values, wrote in an appellate brief that argued the prohibition against corporate contributions is no longer valid.
The ruling is not that simple, said Floyd Abrams, a leading First Amendment lawyer.
Abrams represented the New York Times in the Pentagon Papers case and he briefed the Supreme Court in support of Citizens United on behalf of Senate Minority Leader Mitch McConnell, R-Ky.
"It is inaccurate to say that because of Citizens United, corporate contributions may now be made in any amount," he said Thursday.
He was talking about contributions as distinct from independent campaign expenditures.
The Supreme Court ruled last year that corporations could make expenditures in support of political candidates -- such as paying to put up a billboard -- so long as they did not coordinate their efforts with the campaign. In the case of the recall, Cook is accusing churches of helping to organize and carry out the campaign -- in other words, contributing services of of value.
Citizens United "does not say that corporations are allowed to make contributions and the Supreme Court was very clear in saying that was a different issue that was not before them," Abrams said.
In her brief, Caballero acknowledged that the decision dealt only with campaign expenditures, but "under the logic of the decision, campaign contributions also fall within the ambit of the reasoning used in the decision."
Abrams said the Supreme Court might agree if it hears the recall case or a similar one, "but as the law currently stands, statutes are constitutional that bar corporate contributions in elections."
The fact that the El Paso dispute involves a recall election poses its own complications, said Briffault, of Columbia University.
"It's actually a tricky question. What to do with recall efforts is an unresolved point."
As Walker has said repeatedly in court, when it comes to election law, recall elections are a special animal. Voters are not choosing between candidates, nor are they voting on a general matter such as the ballot initiative that eliminated El Paso's domestic partners benefit last November.
"It's almost midway between independent spending and pure candidate support," Briffault said.
The federal government doesn't provide for recall elections and neither do all states, "so it's probably not something the Supreme Court gave any attention to."
Neither side in the El Paso recall fight may have the energy or money to fight the case up to the Supreme Court. Briffault said the dispute would have a legitimate shot at being taken up by the high court and used to make new law.
"It honestly could come out either way," he said. "The (recall advocates) are wrong to say that's resolved by Citizens United, but they're certainly right to say Citizens United raises some serious issues."
Marty Schladen may be reached at mschladen@...; 546-6127.