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Churches and recall elections

This ought to be interesting.

BagOfMoney

Are Texas churches prohibited from campaigning to recall politicians?

The 5th U.S. Circuit Court of Appeals [weighed] that question Thursday in a case set to clarify if and how a church as a corporate entity can influence the political process of ousting a sitting elected official.

A San Antonio congregation, Faith Outreach International Center, and two Houston churches, Joint Heirs Fellowship Church and the Houston First Church of God, sued Texas last year arguing state election code prevented them from supporting recall efforts in the two cities.

Ordinances to protect gay people passed in both cities in 2013. Upset with those measures, the churches planned to launch coordinated recall movements targeting former San Antonio Mayor Julian Castro, along with the entire City Council at the time, and Houston Mayor Annise Parker.

A lower court tossed the case, ruling the coordinated plans from the churches would have amounted to a “prohibited political contribution” because of their corporate status. The court also said the churches could band together under Texas law and form the equivalent of a state-level super PAC, which is allowed to accept corporate contributions to electioneer without coordinating with a candidate.

The state attorney general’s office has taken the position that there is nothing in state law preventing the churches from spending money in a recall election. Like the lower court, however, the state argues the churches would simply have to register as a super PAC, which is formally called a “direct expenditure only committee.”

“Not every payment of money, or transfer of a thing of value, by a corporation in connection with a recall election is prohibited by” state law, the attorney general’s office argues in a brief. “And the statute permits all the conduct in which Plaintiffs want to engage.”

However, lawyers for the churches have dismissed the idea of registering as any type of PAC and are taking aim at the state’s law banning corporate contributions in recall elections, claiming it infringes on their First Amendment rights.

“This is a very live dispute,” said Jerad Najvar, a campaign finance lawyer representing the three churches. “More issues like this are going to arise in which religious groups are going to want to participate in the political process.”

[…]

Corporations are currently allowed to give to a political action committee that is set up to support or oppose a specific ballot measure. But state election code also “specifies that a corporation is prohibited from making political contributions in connection with a recall election, including the circulation and submission of petitions to call an election.”

Lawyers representing the churches are arguing the two statutes dealing with corporate contributions are unclear.

They also point to a court ruling from a case out of El Paso, in which the former mayor successfully sued a pastor and a church spearheading recall efforts, as part of the “chilling effect” for churches wanting to engage, said Najvar, the lawyer representing the three congregations.

In the El Paso case, a state appeals court reached the conclusion that a corporation engaged in the support of a recall. The court said the church failed to use a political action committee designated for a specific ballot measure.

“As far as Texas law is concerned right now, the courts have already applied what is the law,” Najvar said.

I don’t remember the original filing of this lawsuit, so I don’t have any background to give you. I guess I don’t know why the law makes that distinction for recall elections, and without knowing any more than that it sure does seem like a fair target. Against that, I’m not sure what the problem is with using a PAC, as state law allows. Fortunately, this Press story on the oral arguments gives us some insight.

The hearing [Thursday] largely centered on whether the churches even had standing to bring the suit in the first place.

A lawyer representing the Texas Ethics Commission, which oversees political contributions, argued that the churches’ concerns that they would be breaking the law was actually a moot point. He held that, as long as the churches wouldn’t be making contributions to individual political candidates or officeholders, they could post as many recall promotions on their websites and submit as many petitions as they wanted. “The reason they don’t have standing is because there is no case for controversy,” he said. “It is the commission’s position that it is not going to enforce any provision of the election code in a way that restricts political contributions, as long as they’re not coordinated to a political candidate or officeholder.”

Nevertheless, the churches’ counsel continued to claim the churches faced discrimination, despite the state’s continued promise that everything they wanted to do—on the record, at least—was already allowed under state law. When Jerad Najvar, the attorney arguing on behalf of the churches, continued to press the issue, one Fifth Circuit judge told him, “Your clients can’t take yes for an answer.”

Najvar claimed that the “restrictions” the election code placed on his clients’ ability to promote a recall—which no one else seemed to believe were restrictions—were still content-based speech restrictions. Najvar said he worried that if his clients proceeded with recall efforts, they could still face legal troubles. He cited a 2012 case in El Paso , Cook v. Tom Brown Ministries, in which church officials faced jail time for trying to oust the El Paso mayor. The state, however, more than once reminded Najvar and the court that a 2013 case brought against the commission by Texans for Free Enterprise made the Cook case irrelevant and ensured that the churches’ actions would be deemed legal by the state.

Najvar wouldn’t buy it. “Our clients are very fearful,” Najvar said. “There should be confidence that you can proceed in the democratic process and not be concerned that your actions might somehow put you subject to criminal sanctions.”

Which led one judge to ask, “Isn’t that a little paranoid?”

OK then. It will likely be awhile before we hear back from the court. In the meantime, if you have more familiarity with these issues, please feel free to weigh in.

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4 Comments

  1. Bill Daniels says:

    Seems like the simple answer is for churches and other religious groups to start paying taxes. Then they can harness their organizations to recall politicians, actively support politicians, in short, to fully avail themselves of the political process. Somehow I doubt that will happen, though. Why pay for your own fire, police, and flood protection, when you can mooch off of the taxpayers?

  2. Paul kubosh says:

    Tell me.how you really feel bill. Also shouldn’t you worry about lighting strikes? 🙂

  3. Ross says:

    I don’t have a problem with churches telling members they should vote. Or explaining the churches position on issues being a sin, etc. When a church starts endorsing candidates, or working to recall a candidate, it’s time for that church to lose their tax exemption. The churches for very pastor that endorsed Ben Hall should not be taxable entities.

    As an aside, I have no problem with charging churches and other tax exempt organizations a fee to help pay for police and fire protection. I find it abhorrent that, say, Second Baptist, can spend tens, if not hundreds, of millions of dollars on facilities, and not contribute one red dime to public safety costs.

  4. Ross says:

    should now be taxable entities, geez.