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 Council Member Zimmerman Sues City

Wants to overturn campaign finance restrictions
and could gain himself a direct personal benefit

by Ken Martin
© The Austin Bulldog 2015
Posted Wednesday July 29, 2015 2:02am
Updated Wednesday August 5, 2015 10:46am (Houston court’s injunction was temporary, not permanent)

District 6 Council Member Don ZimmermanDistrict 6 Council Member Don ZimmermanDon Zimmerman had a long history of filing lawsuits even before he won election to the District 6 seat on the Austin City Council last December.

In fact, while a candidate he sued The Austin Bulldog for defamation last October, lost the case in early January, and still owes $10,000 in attorney’s fees and sanctions for filing a baseless lawsuit. More than six months later he has not paid the debt despite efforts to collect.

Now he’s filed a federal lawsuit to overturn several aspects of the rules under which he ran for and won office. In his latest lawsuit filed July 27, 2015, Zimmerman seeks to eliminate or modify restrictions on political fundraising found in Article III Section 8 of the Austin City Charter.

The lawsuit explicitly states that Zimmerman seeks to eliminate these restrictions to prepare for his campaign for reelection in November 2016.

Jerad NajvarJerad Najvar“Political speech is the very core of the First Amendment, but Austin’s campaign finance system seeks to control debate by controlling fundraising and spending,” said attorney Jerad Najvar of the Houston-based Najvar Law Firm, in a prepared statement. He represents Zimmerman in this lawsuit. “The result is that everybody in the world is free to speak, except for City candidates themselves.”

Campaign finance experts—and even seasoned political consultants who run Austin mayoral and city council elections—say rolling back the restrictions that Austin voters overwhelmingly approved in two City Charter elections would be a disaster for democracy at the local level. (More about that later.)

Zimmerman, a self-proclaimed fiscal conservative has in effect sued his employer, the City of Austin, which will have to spend money to defend the City Charter.

What the lawsuit seeks

Candidates serve as the voice of political causes and ideals, and the government cannot impose arbitrary waiting periods and arbitrary aggregate limits, and it certainly cannot require candidates to hand over their campaign accounts at the end of a campaign,” Najvar said in the statement released by Zimmerman’s office.

The lawsuit asks for a preliminary injunction and is awaiting a hearing date from the court.

Eliminate blackout period—Article III, Section 8(F)(2) prohibits a candidate from soliciting or accepting political contributions except during the last 180 days before an election. City Code Section 2-2-7(D) also states that a candidate may only raise funds for an election during an authorized campaign period.

On January 9, 2015, Houston City Council Candidate Brent Trebor Gordon won a permanent temporary injunction in a federal lawsuit, Gordon v. City of Houston et al, Civil Action No. H-14-3146 in the U.S. District Court for the Southern District of Texas, Houston Division, to prevent the City of Houston from enforcing its restrictions on when a candidate can raise funds, as set forth in Houston City Code Section 18-35. The court declared the restriction was unconstitutional under the First Amendment of the U.S. Constitution.

Zimmerman’s lead attorney in this case, Jared Wayne Najvar of Houston, also represented Gordon.

If the “blackout period” were enjoined Zimmerman would purchase donor lists from libertarian and conservative groups and solicit donors from across Texas and the United States “to promote his message of fiscal conservatism and solicit financial support for his campaign,” the complaint states.

Eliminate contribution limits—Article III, Section 8(A)(1) bars a candidate from accepting an individual’s campaign contribution of more than $300 per contributor per election, adjusted to the nearest $50 each year for inflation, which raised the limit to $350 for the 2014 elections.

“If not for the Base Limit, many individuals would contribute funds to support Zimmerman’s 2016 campaign for City Council in excess of $350, and Zimmerman would accept such contributions,” Zimmerman’s complaint states. “For example, James Skaggs would immediately contribute $2,500.”

Skaggs is a retired high-tech executive who among other initiatives teamed with Gerald Daugherty, now Precinct 3 Travis County Commissioner, to lead opposition that narrowly defeated the light-rail election of 2000.

Eliminate geographic barriers—Article III, Section 8(A)(3) prohibits a candidate or committee from accepting a total of more than $36,000 per election, and $24,000 in the case of a runoff election, on the total of contributions from sources other than natural persons eligible to vote in a postal zip code completely or partially within the Austin city limits, with totals to be adjusted for inflation.

“Zimmerman enjoys support from like-minded individuals and groups that reside, or are registered or domiciled, both inside and outside the territorial limits of the City of Austin,” his complaint states, and he will “solicit and accept contributions from supporters regardless of” where the person lives.

Eliminate funds return—Article III, section 8(F)(3) requires candidates no later than 90 days after an election or runoff to distribute the balance of funds in excess of any remaining expenses to campaign donors, to charitable organizations, or to the Austin Fair Campaign Fund. An election winner may retain $20,000 in an officeholder account.

Zimmerman’s latest Campaign Finance Report filed July 13, 2015, indicates he still has $1,292 in contributions on hand. If this restriction is not lifted, the lawsuit argues, “Zimmerman will be forced to refrain from using unexpended funds for campaign purposes....” As an election winner, Zimmerman is barred from raising campaign funds until six months before the next election.

What is not stated in Zimmerman’s complaint is that he still owes himself $18,000 in funds he loaned to his campaign during the election, according to his latest Campaign Finance Report. If the blackout period were lifted, then he could raise funds and directly reimburse himself.

Fred LewisFred Lewis“Contributions used to pay the debt a candidate has to his campaign is a personal benefit to the candidate,” says attorney Fred Lewis. “It improves his financial net worth.”

Lewis, who helped draft the 10-1 Charter amendment language that brought about our new system of electing council members from geographic districts, is a longtime activist on campaign finance issues. He said, “Some of us remember before Austin had limits or rules beyond disclosure and candidates sought large sums while ruling on applications and projects of special interests. If the blackout rule is unconstitutional, then council members will be able to hold fundraisers with people who have matters in front of them, not only during election periods but all the time.”

Lawsuit’s aims are not popular

Political consultants have been known to complain loudly about the difficulty of raising money to fund local campaigns under Austin’s tight restrictions. But a couple of local practitioners weren’t shy about criticizing the lawsuit’s goals.

David ButtsDavid Butts“It’s not good for ‘little D’ democracy,” says David Butts, who’s been getting candidates elected for decades in Austin and worked in Mayor Steve Adler’s campaign. “If a council member can raise money any day of the year he or she wants to, including right before taking votes on the council, that’s not a good thing. ... The truth of the matter is that any time you allow wads of cash to invade the political system, don’t be surprised if legal and ethical problems surface down the road.”

“I believe the $350 limit needs to be raised but not dramatically,” Butts says.

“If we want to dispense with all the drama we can just have an auction instead of an election and let the highest bidder put the money into the treasury. But if we’re going to have a democracy, we can’t have money controlling everything,” he said.

Of Zimmerman’s specific complaints expressed in the lawsuit, Butts says, “He wants to throw everything out and think it’s new, but it’s the same old crap we’ve had forever.”

Genevieve Van CleveGenevieve Van CleveGenevieve Van Cleve is a consultant who worked for the campaign of mayoral candidate Sheryl Cole and Travis County Judge Sarah Eckhardt, among others. She, too, reacted unfavorably to Zimmerman’s lawsuit.

“It's a shame that Councilman Zimmerman has squandered his time in office to figure out new and unique ways for extreme right-wing groups to funnel money into his campaign war chest,” she says. “While I do have some concerns with the current constraints on fundraising limits, both geographic and amount, I think the approach that Zimmerman is taking is insulting to his colleagues and an embarrassment to his district.”

“In my opinion, the current fundraising rules do not allow people that aren't already of means to run for office, particularly the office of mayor,” Van Cleve said. “There is a conversation to be had about this issue. However, for a guy who no doubt complains about frivolous lawsuits and government spending to file a lawsuit that forces the City to spend money on his lawsuit is comical.”

Bill AleshireBill AleshireAustin attorney Bill Aleshire of Aleshire Law PC, and one of The Austin Bulldog’s attorneys involved in the ill-fated defamation lawsuit Zimmerman brought against the Bulldog and lost, is a former Travis County judge and before that the county’s tax assessor-collector.

“The lobbyists and special interests who seek undue influence in our elections must be worshiping Don Zimmerman about now,” Aleshire said. “Here’s a candidate who not only wants no limits on campaign contributions he can receive while serving in office, he thinks he can use those contributions to pay his wife.”

The Austin Bulldog reported that Zimmerman paid his wife $2,000 from campaign donations, despite strict prohibitions against it. Aleshire filed a complaint about that with the Texas Ethics Commission and also filed a criminal complaint with the Travis County attorney. Both complaints are pending.

“The resulting system, if Zimmerman has his way,” Aleshire said, “would be legalized bribery.  The people of Austin, through amendments to their City Charter, have tried to limit special interest influence with the very rules Zimmerman—only after getting elected—now attacks. The voters of District 6 will have to decide if they admire him for that.”

Craig McDonaldCraig McDonaldCraig McDonald directs Texans for Public Justice, which tracks campaign finance in Texas. He has filed several criminal complaints that led to prosecutions of U.S. Representative Tom DeLay and Governor Rick Perry, and triggered the current investigation of Texas Attorney General Ken Paxton. But in 1997 he helped to draft the very campaign finance restrictions that Zimmerman's lawsuit attacks.

"This will an interesting lawsuit and I don't think it's a slam dunk for either side,” McDonald said. “The city will have the burden to prove its regulations are in the public interest. The city will have to show that the restrictions being challenged limit either real corruption or the appearance of corruption. That's the constitutional standard. You can regulate size of contributions or the window for raising money if those are designed to limit corruption or the appearance of the corruption in the eyes of the public.”

Tom SmithTom SmithTom “Smitty” Smith has been director of Public Citizen Texas since 1985.

“If council member Zimmerman doesn’t want to comply with the rules perhaps he shouldn't have run,” Smith said. “Decades of history have shown that those who have the most to gain from manipulating our government will contribute the most and will get special favors in return.

“As a result, Austinites passed an ordinance to reduce corruption and it has done a good job of reducing the dominance of big economic players in the city. If Zimmerman’s lawsuit is successful, then Austin will return to the bad old days where a few developers and big banks really controlled the city.”

How restrictions came about

Zimmerman’s federal lawsuit is an attempt to overturn City Charter restrictions that were approved by 72 percent of Austin voters in the election of November 4, 1997.

The proposition got on the ballot through a petition drive led by a grassroots group that called itself Austinites for a Little Less Corruption.

Before this successful movement there were no limits on how much mayoral and city council candidates could raise and spend and no limits on where the money could come from. In a cumulative list of the Top 100 contributors I published in the In Fact newsletter, in the combined city elections of 1996 and 1997, rock ’n’ roller Don Henley led the list with contributions totaling $125,500. The Real Estate Council of Austin’s political action committee spent $37,000. Developers and law firms gave as much as $23,000.

A lot of folks thought that was excessive. The reform movement began in September 1995 when a 27-year-old, little known activist, Brent White, launched his one-man petition drive. As I wrote in the In Fact newsletter of October 29, 1997, White said, “Even if you can’t prove there’s quid pro quo, there’s the appearance of it, and we have a right to limit contributions.”

Linda CurtisLinda CurtisWhite’s drive attracted the attention of Linda Curtis, who had learned to organize politically in the civil rights movement of the 1960s and ’70s. They met in 1995 when she was leading Priorities First!, the group that overwhelmingly defeated the city’s $10 million bond election for a minor league baseball stadium. That was the only thing on the ballot of October 7, 1995, and it lost big-time by a margin of 37 percent for, and 62 percent against.

Curtis helped to get White’s petition rewritten by Craig McDonald, who at the time was heading the local office of the Center for New Democracy, a group that had been successful in leading campaign-finance initiatives in several states.

Curtis was seen all over town buttonholing people to sign the petition. “I was out at gay bars, anywhere I could find people. I must have talked to 10,000 to 12,000 people,” Curtis told In Fact.

When the drive was finished and the petitions were filed with Austin City Clerk Elden Aldridge, he used an antiquated method of having clerks check the petition against printed lists of registered voters and, after about a month of screening, ultimately ruled it was insufficient. Meaning the city would not hold an election.

The American Civil Liberties Union of Texas stepped in and pro bono attorney Hugh Lowe pinned the city’s ears with a stunning victory in federal court. In his ruling, U.S. District Judge Sam Sparks wrote a scathing opinion of the city’s verification work and ordered the election be held November 4, 1997.

The Austin American-Statesman buried stories about the group’s court victory deep inside the paper and published numerous editorials blasting the proposition. The Austin Chronicle judged the old campaign finance system by the results it had produced, in which all winning candidates won the paper’s endorsement. The Greater Austin Chamber of Commerce passed a resolution to oppose the ballot proposition.

But 27,600 people has signed the petitions for the reforms and despite Statesman and Chronicle opposition, no other vocal opponents surfaced. And 72 percent of voters gave the measure a strong show of support.

The amendment limited individual contributions to $100 per candidate per election cycle, or $200 if there is a runoff; barred candidates from taking more than $15,000 per election cycle from sources other than Austin citizens or $25,000 if there is a runoff; and prohibited candidates from asking for or receiving contributions until 180 days before elections.

One other historical footnote: Even the promoters of $100 campaign contributions had second thoughts after the measure was enacted and the limit was raised through Proposition 5 approved May 13, 2006 by 68 percent of voters.

City Charter needs strong defense

Attorney Fred Lewis said, “Very few people in Austin think we have too little money in our political system. Nor do many citizens think that having no contribution limits will improve democracy or the citizens faith in their government.

“Basically the rightwing notion that money is speech is a fallacy that results in only rich people controlling our government and electing our candidates.”

Lewis is concerned, based on his previous involvement, about whether the City of Austin will mount a strong defense.

“The $100 limits were challenged as pertained to ballot measures in late 1990s and the city rolled over,” Lewis said. “I was there. I intervened on behalf of Austinites for Little Less Corruption and the city refused to defend the charter amendment.

“The city attorney’s office has been hostile to campaign finance and ethics laws in the city of Austin for many years,” he said. “The city is obligated to hire outside council to vigorously defend the city charter.”

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.

Links:

Donald Zimmerman v. City of Austin, Texas (30 pages)

Plaintiff’s Memorandum in Support of Motion for Prelminary Injunction (40 pages)

Memorandum Opinion and Order in Gordon v. City of Houston et al (42 pages)

Related Bulldog coverage:

Zimmerman Lawsuit a Costly Boondoggle: First council candidate in decades, if ever, to sue the media in effort to suppress coverage, January 20, 2015

Zimmerman Lawsuit Dismissed and Sanctioned: The Austin Bulldog’s anti-SLAPP motion approved after second hearing, damages and cost assessed, January 7, 2015

Bulldog Defends Zimmerman Lawsuit, November 25, 2014

Zimmerman Sues Bulldog, Claims Defamation: District 6 candidate Don Zimmerman claims ‘The Austin Bulldog’ report made false accusations, October 16, 2014

Candidate Lost Custody Over Abuse: District 6 Council candidate Don Zimmerman injured, alienated daughter, court records state, October 9, 2014

Other coverage of this lawsuit (access may involve paywalls):

New CM Zimmerman Loses to Bulldog: Sanctioned for lawsuit against publication, The Austin Chronicle January 9, 2015

Zimmerman libel suit against Bulldog dismissed, Austin Monitor January 8, 2015

Judge dismisses defamation lawsuit, orders Don Zimmerman to pay up, Austin American-Statesman January 7, 2015

Zimmerman Suit Not Yet “Bygone”: Judge will hear motion that could mean sanctions, The Austin Chronicle December 26, 2014

Zimmerman drops lawsuit, but case goes forward, Austin Monitor December 19, 2014

Zimmerman v. Bulldog case going to court today, December 18, 2014

Zimmerman’s Latest Lawsuit: Is D6 candidate trying to silence coverage of custody case? The Austin Chronicle December 12, 2014

After years of fighting government, Don Zimmerman angles to join it, Austin American-Statesman November 25, 2014

Zimmerman threatens lawsuit over abuse stories, Austin Monitor October 15, 2014

 

Comments   

 
+1 #1 Linda Curtis 2015-07-29 07:11
Craig's comments on this are appreciated as at least balanced. Ken, you're great, but I think this piece is biased. You might have interviewed a Republican for this piece and an independent (non-aligned).

Moreover, the Zimmerman bashing is pure partisanship here. Don has a right to challenge the law.

Let's not forget that it was Butts and about half the Democratic party "leadership" in Austin who tried to stop 10-1.

If Zimmerman prevails, this is not all bad news as this piece implies. It also opens the door for candidates who don't have to bow to the party machines.

I have concluded that money is the root of all evil in our political system BUT voters -- organized outside the party apparatus -- are the only ones with the power to change this in any meaningful way. For now, they're not using it much, but on occasion they do. That's what we need to investigate and work on.

Independents are working on that now, which is why I help found the League of independent Voters of Texas. Notice the small "i".

Thank you for writing about this, regardless as there's lots to learn here, as always.
 
 
0 #2 Sharon Blythe 2015-07-29 08:10
The real problem with the City is the City Manager who does not manage his employees. This story might be less biased if ordinary citizens were interviewed other than the rich and famous.
 
 
+2 #3 Editor 2015-07-29 10:13
Re: #1 Linda Curtis:

Thanks for the feedback and constructive criticism. More voices will make any story better and I hope that everyone, including Republicans, independents, Libertarians, Democrats, and those of any other political persuasion, will continue the conversation about campaign finance by posting comments and getting involved.

Certainly Council Member Zimmerman has the legal right to challenge the law that’s codified in City Charter changes that you spearheaded to bring about. But, if he wants to bring about changes that in effect override the will of the people, as expressed in two separate City Charter elections, and open the floodgates and allow people all over the country to determine the course of Austin elections, he should not expect that to sit well with everyone.

As for opening the doors for candidates who don’t have to bow to the party machines, given the outcome of the 2014 elections--in which, as I have reported in-depth that $6.3 million was spent--it does not seem clear how allowing even more money into city elections will promote democracy.

The desire to allow unfettered fundraising beyond the currently imposed six months before an election is particularly troublesome. Even the freewheeling, no holds barred system for state lawmakers to raise campaign money bars soliciting or accepting contributions during legislative sessions. Gone are the days when a chicken magnate can pass out $10,000 checks on in legislative chambers during a session.

While as you said, people can organize and have some power to bring about meaningful change, as long as the law of the land allows the richest among us to pour unlimited funding into choosing and electing candidates who will do their bidding, the system is rigged against citizens. And especially so in the State of Texas, where citizens are not permitted the power of initiative and referendum.

No one knows the power of initiative and referendum better than you, Linda, you, who have used the that right so often under the Austin City Charter.
 
 
+1 #4 Editor 2015-07-29 10:33
Re: #2 Sharon Blythe:

I'm not sure what the city manager has to do with campaign finance issues, but I do agree that other voices can add depth and meaning to any story.
 
 
+4 #5 Diane Owens 2015-07-29 10:55
I am a resident of District 6 and do not agree that the city's campaign finance rules violate free speech in any way. Governing as part of an elected single district city council requires collaboration and negotiation with other council members. Filing a lawsuit that the taxpayers must now pay to defend against is not in the interest of District 6 nor any other district in our city!
 
 
+4 #6 Michael Siever 2015-07-29 11:04
Don Zimmerman was bound to these exact same campaign finance rules the first time he ran for this seat, as were his opponents, and he still won, so why didn't he sue the City then? Is he upset that he didn't draw a four-year marble, and is up for re-election in the middle of a Presidential Election year less than 2 years after taking office, and is less likely to get re-elected then? That's not the City's fault. Other people on City Council, including Greg Casar, drew two-year marbles as well. He needs to learn to deal with the hand he was dealt. Is he afraid that he will not get as much financial support as he did the first time because many of the donors who donated to him last time around now see him for what he really is, a bigoted blowhard who couldn't keep any of his campaign promises (de-annexation of D6, lowering taxes, firing everybody at City Hall), except for the one vowing not to work with anybody else on City Council? That's his own damn fault, not the City's. Take ownership, Don.
 
 
0 #7 Editor 2015-07-30 14:02
Re: #7 Ogie Wilson:

Thanks for your thoughtful feedback.

As to 501(4)(c) PACs involvement, we saw that in the 2014 mayoral contest, in which an out-of-state PAC, South Forward IE spent only $1,845 that we could identify in our analysis of $726,210 in independent expenditures, supposedly not coordinated with the candidates or their campaigns. That amount was spent on anti-Steve Adler material. But the PAC never registered with the city as required and we are confident, based on anecdotal reports of mass mailings, that it spent much more than that. To see the analysis with links to earlier parts in the series, go to http://www.theaustinbulldog.org/index.php?option=com_content&view=article&id=342:10-1-elections-cost-63-million&catid=3:main-articles

The second part in that series is at http://www.theaustinbulldog.org/index.php?option=com_content&view=article&id=346:part-2-the-63-million-election&catid=3:main-articles

But that was just one out-of-area PAC. All the rest was spent by 22 local independent PACs to support or oppose their chosen candidates.
 
 
+1 #8 Dylan Tynan 2015-08-02 00:07
Linda, I think it's more that reality is biased against Zimmerman (see Okrent's Law) than the article.

The article quotes many of Zimmerman's main arguments from his lawsuit. It also quotes from his lawyer's prepared statement. That essentially represents the Conservative & Zimmerman point of view. Most of the quotes from the other lawyers, election consultants, etc. represent the opposite. There is a bit of a mismatch between the two in that the quotes from the lawsuit are more technical & detailed, whereas the quotes from the people are much more general and more personal, but I don't think that's article bias necessarily.

While I don't know how Ken came up with who he was going to get live quotes from for this article, it seems very reasonable to me that this being Austin (where most of the consultants, lawyers, and election watchdogs are to the Left) and Zimmerman being, well, Zimmerman, you could draw names from a hat and end up with 5 similar comments. To attempt to avoid the appearance of imbalance or bias by selecting a Republican and an Independent who were familiar with Zimmerman, the lawsuit, and were willing to give a quote, might really be creating "false balance"
 
 
0 #9 Dylan Tynan 2015-08-02 01:23
This challenge was going to happen regardless of whether Zimmerman was the name attached to it or not, so I don't really blame him for this one.

I think the suit has a strong likelihood of success on several of its points - perhaps even all of them, given the way the Court's decisions have been going. McClutcheon and Citizen's United have made the standard for limiting political speech (AKA money) more strict than it used to be --- influence is no longer enough of a reason to support restrictions (like those enumerated in the lawsuit). You must somehow prove that whatever the restriction is that it somehow prevents quid pro quo corruption, or the appearance thereof. That sounds very difficult to me. Even if they don't win on all points initially, they have a very favorable appeals path (probably to a 3-judge panel and then an accelerated path to the Supreme Court perhaps).

If you wipe out the time period requirement and the geographic requirement, things could get pretty weird. I can't think of a reason why a candidate couldn't accept donations for years without ever running, then run with years worth of contributions. Or, campaign for a statewide office, gather donations, not run, then run for city council & use all those funds previously gathered for the other office. In the state code, the "in connection with" phrase is used in places to connect funds with a particular campaign, but I don't think its enough to prevent those weird examples I gave (and probably would fall to the same free speech argument anyway).

As long as money and speech are the same thing & we have SCOTUS interpreting things the way they are, most of the limits are going to fall -- maybe all of them. I don't see how they can sustain a situation where hundreds of millions go to superPACs & the campaigns & parties are limited. Really, we should focus on strengthening disclosure (for what that's worth).

That's not to say that there aren't some goofy arguments in Zimmerman's filing - there are - but most of it looks pretty solid IMHO, given the current legal landscape.
 
 
0 #10 Editor 2015-08-03 10:28
Re: #11 Dylan Tynan:

To clarify, Okrent's Law: "The pursuit of balance can create imbalance because sometimes something is true," referring to the phenomenon of the press providing legitimacy to fringe or minority viewpoints in an effort to appear even-handed." (Per https://en.wikipedia.org/wiki/Daniel_Okrent)
 

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