Taking their cues from California and the corrupt leadership of the Texas House, the Austin city council has decided to launch a war on free speech in city elections by adopting a new ordinance. The good news is that the ordinance is so poorly designed the courts are guaranteed to strike it down.

With little debate, at its most recent meeting the council passed an ordinance brought by Mayor Steve Adler designed to regulate independent spending on elections. Only conservative councilmembers Don Zimmerman and Ellen Troxclair spoke and voted against the ordinance.

Adler initially called the measure a “dark money” ordinance but switched to referring to it as targeting “secret money” after complaints from African American councilmembers.

That’s with good cause. The ordinance mimics oppressive efforts by the state of Alabama during the civil rights era to get the membership and donor lists of the NAACP and other civil rights organizations. The Supreme Court stopped Alabama in 1957, but left-wing government officials have brought the tactics back to use against conservative groups.

The purpose of the Austin ordinance – to force individuals, non-profits, and businesses to disclose the privacy of their donors – has already been ruled unconstitutional in a 1997 Texas Supreme Court decision authored by Gov. Abbott when he was serving on the Court.

But it is the atrocious design of the ordinance that will result in its demise.

The ordinance mimics a bill authored by State Rep. Byron Cook (R–Corsicana) and passed by the coalition of Democrats and liberal Republicans who control the Texas House before being stopped in the Senate. Austin’s ordinance suffers from the exact same absurd maladies as the House bill.

The ordinance, though marketed as targeting politically active non-profit groups, effectively targets individuals and churches in ways that will eliminate their rights to free speech.

Under the ordinance, churches wishing to speak out on city ordinances, or even maintain their right to speak out, would be forced to stop passing a collection plate.

The ordinance requires individuals, businesses, organizations, clubs, and churches to file reports with the city identifying all sources of non-commercial revenue over a nearly two-year period if they speak out on city elections, including bond and ordinance elections. The detailed reporting requirements, in which the speaking individual or group is required to identify the dates of contributions and the identities of contributors, would mean an end to all anonymous donations. That means an end to collection plates in Austin churches.

The results are no less extreme or absurd for individuals involved in Austin elections. Individuals speaking out in city elections could find themselves compelled to disclose information on all gifts they receive.

A person who chooses to spend only a few hundred dollars on speech related to Austin city elections may find themselves compelled – under threat of criminal penalties – to disclose multiple years worth of information about the people who buy them dinner, or even whether they’ve received birthday money from their grandmother.

In fact, under a section of the ordinance marketed as “closing loopholes,” grandma herself could be compelled to disclose all of her sources of non-commercial income as well if she and the recipient of the gifts ever discussed the topic of Austin politics.

The ordinance will draw a lawsuit, the city of Austin will lose, and taxpayers will be left on the hook. The greatest shame is that, though the city council is launching a war on its own voters, it will be the same voters who will ultimately be forced to pay for the boondoggle.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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