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Lawsuit challenges Austin's fundraising rules for political candidates

Austin American-Statesman logo Austin American-Statesman 3/28/2021 Ryan Autullo, Austin American-Statesman

A new federal lawsuit revives a challenge to city of Austin rules that prohibit political candidates from accepting financial contributions until one year before an election.

The lawsuit, filed Thursday in Austin by Houston lawyer Jerad Najvar on behalf of former City Council candidate Jennifer Virden, accuses the city of skirting an earlier court ruling that struck down the blackout period.

In that lawsuit, filed in 2015, Najvar represented then-City Council Member Don Zimmerman. After the trial court overturned the law — a ruling later upheld by the 5th U.S. Circuit Court of Appeals — the City Council responded in 2017 by extending the blackout from six months before an election to one year.

Fundraising blackouts are designed to prevent corruption and the perception of wrongdoing by limiting the window during which individual donors and businesses are permitted to give money to elected officials. Unlike state lawmakers who are in session every other year, City Council members meet year-round and regularly vote on matters that could be influenced by donors making financial promises.

In the latest lawsuit, Najvar says the blackout period remains unenforceable even after the city extended it by six months.

“The new blackout period is unconstitutional for all the same reasons as the original one struck down in the federal courts,” he said in a statement.

In a statement Friday, the city said it was aware of the lawsuit.

"The purpose of the provision is to avoid the pressures and challenges of perpetual campaign fundraising for office. Adopted by Council in October 2017, the provision has been in place over the past two general election cycles, and has not been challenged in that time. It is important to note that the provision only applies to candidacies for office.  The window for contributions made for ballot initiatives, which allow for public engagement and discourse on important community issues, is not at issue."

Najvar filed the lawsuit on behalf of Virden, who last year advanced to a runoff election for the City Council's District 10 seat before losing to incumbent Alison Alter. 

The lawsuit states that Virden will run again in November 2022, either in the mayoral race or for a council seat if one becomes available in her neighborhood through redistricting.

"But for the new blackout, Virden would have already been soliciting and accepting campaign contributions from persons who share her views on city policies and depositing them into her campaign account," the lawsuit states.

Under the city's current law, Virden cannot start raising money until November. The lawsuit asks for a preliminary injunction that would clear the way for her to begin fundraising sooner than that.

Virden, a Republican who donated $275 last year to then-President Donald Trump, said she is at a disadvantage campaigning against incumbents who have the benefit of taxpayer-funded staffs and "media to spread their propaganda."

"I need to raise money now to be more competitive and to get my message out by campaigning on real-time issues as they’re rolling out," she said.

Zimmerman, a Republican who represented District 6 from 2014 to 2016, said fundraising blackouts do not prevent wrongdoing.

"The city has zero evidence their limits are stopping corruption," Zimmerman said Thursday.

Virden ran a strong campaign last year, raising more than $95,000 in the general election and an additional $124,000 in the runoff. As of Thursday, she had only $3,800 left, the lawsuit states.

Virden finished second to Alter in a crowded general election field of seven candidates before she lost to Alter by 587 votes in the runoff. 

Candidates in Austin are limited to accepting $400 per donor. Zimmerman challenged that in the 2015 lawsuit when the limit was $350, but he lost on that point. He lost a related challenge to end a limit on money raised from donors who live outside of Austin's city limits. The limit was $36,000 at the time and now is $38,000.

The new lawsuit does not challenge the rulings on contribution limits.

This article originally appeared on Austin American-Statesman: Lawsuit challenges Austin's fundraising rules for political candidates

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