A little speech-regulation can be a dangerous thing. One city councilmember is now being attacked by a city ethics board for not complying with a compulsory speech requirement in the exact manner bureaucrats demand.
Don Zimmerman, one of Austin’s only conservative city council members, is being investigated by the city’s Ethics Review Board over just three words he included on one of his campaign mailers. And much like their state-level counterpart, the Texas Ethics Commission, Austin’s speech regulators are refusing to consider Zimmerman’s arguments that the city investigation violates his constitutional rights.
An Austin city ordinance deceptively named the “Austin Fair Campaign Act” sets a voluntary campaign spending limit for city races at $75,000. Candidates who agree to the limit are awarded public funding for their campaign garnered from lobbyist registration fees. Candidates who do not are required to put the following disclaimer on campaign publications:
“This campaign has not agreed to comply with the contribution and expenditure limits of the Austin Fair Campaign Chapter.”
It’s an intentionally misleading statement designed to cast a negative light on those who choose not to comply the city ordinance – which would be unconstitutional if it were mandatory. The ordinance compels them to make that statement, which misleads uninformed voters into believing the campaign is participating in campaign tactics that are “unfair.”
Zimmerman, who is running for reelection to the council, has opted out of the spending limit and the public financing of his campaign. In a recent campaign mailer to his district, Zimmerman included the following version of the disclaimer:
“This campaign has not agreed to comply with the contribution and expenditure limits of the so-called ‘Fair’[SA1] Campaign Chapter.”
This version of the disclaimer gets the exact same point across – that Zimmerman has opted not to comply with the limits. The information is, in essence, the same – it’s merely the tone of delivery that is different.
But that is precisely what inspired a local busybody to file a complaint against him, spurring an investigation by Austin’s Ethics Review Board. Representing himself, Zimmerman argued that he had substantially complied since his disclaimer contained all of the same information. More importantly, Zimmerman argued the requirement was unconstitutional, since it compelled him to engage in speech he disagrees with.
However, much like their counterparts at the Texas Ethics Commission, the minor-league speech-regulators at the review board said they were not there to discuss issues of constitutionality. The board’s chairman, Peter Einhorn, said the commission did not have jurisdiction to hear Zimmerman’s constitutional claims and that the panel was obliged to assume the ordinance is constitutional until it is ruled otherwise by a court.
Einhorn is taking his cues from the TEC, which has decided it can ignore the constitutional implications of its investigations. The TEC and the Austin Ethics Review Board will be in for a rude awakening when they are forced to pay damages to civil rights plaintiffs. All public officials swear oaths to uphold the constitution, its time they take those oaths seriously.
In a 7-3 vote, the Board decided there were reasonable grounds to believe Zimmerman had violated the ordinance and will make a final determination at another meeting to be held in the coming weeks.
Restricting speech and compelling speech are two sides of the same unconstitutional coin. In this instance, because the Zimmerman’s message did not lead readers to the exact conclusion city bureaucrats preferred, they are seeking to punish him for his speech – the Constitution be damned. But just like the TEC, these speech regulators are in for a rude awakening.
