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‘Valid’ ethics complaint dismissed for being unconstitutional

Tuesday, January 15, 2019 by Jessi Devenyns

Last October, Mayor Steve Adler’s campaign manager, James Wick, filed an ethics complaint against Megaphone GPAC, a general purpose political action committee opposing the mayor’s re-election. At the time, several attorneys opined that the complaint would be dismissed due to a previous 5th U.S. Circuit Court of Appeals ruling, but the case continued to advance to the Ethics Review Commission.

When the case finally arrived before the ethics commission last Wednesday, commissioners unanimously dismissed the case before it proceeded to a final hearing – much as experts last fall had suspected they would do.

“While your complaint is well-articulated and falls under the jurisdiction of this commission … I think that we do not have to proceed to a final hearing,” said Chair Ben Stratmann.

As Stratmann explained, “We are advised by counsel that the U.S. Court of Appeals 5th Circuit ruling and the Catholic Leadership Coalition of Texas case … that those layout periods are unconstitutional.” He also pointed out that the restriction is not just at a municipal level. The Texas Ethics Commission will not enforce any such complaints if they hear them.

Wick’s specific complaint noted that Megaphone GPAC’s committee treasurer, Luke McAlpin, filed the required appointment of campaign treasurer with the Austin city clerk on Oct. 19, and just a week later, Megaphone PAC then spent $4,995 to oppose Adler. According to city code, “Appointment of a Campaign Treasurer” must be filed with the city clerk “not later than the 60th day before making a contribution or expenditure in connection with a City election.”

By removing these barriers, Wick said, “If a GPAC is able to file a treasurer on a day and make an expenditure on that day of any amount, that that’s a serious problem for our system here.”

Wick argued that the appeals court gave parameters that were “multilayered” and a “much more narrow threshold than the city of Austin’s.” The ruling states that requiring contributions from 10 donors but limiting the amount to $500 for a 60-day waiting period is a violation of First Amendment rights. Austin has a 60-day waiting period for expenditures exceeding $2,500.

Even with underscoring the semantic and practical differences between city code and the court ruling, commissioners still did not find it appropriate to move forward to a final hearing and “tangle with the federal judiciary.”

However, the commissioners did not want Wick to think that they were dismissing the case out of hand. They made it clear that while they did not agree with the 5th Circuit ruling, they were obliged to abide by it.

Commissioner Debra Danburg thanked Wick for being persistent and continuing to push the case forward. “If we don’t have people letting us know when there are violations that have occurred, regardless of what the court rulings have said … I think it’s a really good citizen who brings forward an apparent violation,” she said.

Photo by John Flynn.

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