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Ethics complaint against Voices of Austin will get final hearing

Friday, February 12, 2021 by Jonathan Lee

A complaint that nonprofit Voices of Austin violated city code by campaigning against Proposition A will move to a final hearing, the Ethics Review Commission decided.

The preliminary hearing at Wednesday’s meeting was a redo of the first preliminary hearing, which was cut short due to a problem with the city’s virtual meeting software.

Political consultant Mark Littlefield alleged that Voices of Austin overstepped its nonprofit status by sending a mailer that essentially told voters not to vote for Prop A. He argued that the nonprofit should have been registered as a political action committee and disclosed its donors.

Roger Borgelt, counsel for Voices of Austin, argued that the nonprofit is just that – a nonprofit. It cannot and does not tell people how to vote, he said, but it can educate people on potential impacts of votes.

“Telling people what possible consequences of a vote are, that’s not telling them how to vote,” Borgelt insisted. “That’s just providing them information to use to make their own decision on how to vote.”

Borgelt did, however, admit that “there may be a technical violation” of city code in one line of the mailer that Littlefield complained about. Even so, he said, it doesn’t matter because the complaint does not violate the federal precedent for electioneering communication set in the Buckley v. Valeo U.S. Supreme Court case.

Chair Luis Soberon balked at the relevance of the SCOTUS decision: “The debate about whether or not we’re maybe bucking Supreme Court precedent on what is or is not electioneering communication and what kind of magic words fit into federal precedent on that question is above our pay grade.”

Soberon also argued that Borgelt’s admission to the violation of city code was enough to move the complaint to a final hearing. Most commissioners agreed; the motion to move to a final hearing passed 7-2.

Littlefield also alleged that some social media posts linked to the organization similarly violated city code. He asked that Voices of Austin not delete the posts before the final hearing. Littlefield requested communications between Voices of Austin and its donors with the names and personal information of donors redacted. The commission unanimously approved his requests.

Photo by Pi.1415926535, CC BY-SA 3.0, via Wikimedia Commons.

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