Mayor Frank Reilly wrote about the City of Granite Shoals’ new vision as set forth in its 2010 Comprehensive Plan in the March 4, 2010 edition of the River Cities Tribune. You might need to use the zoom feature in your browser to be able to read it.
A New Vision for Granite Shoals
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The Bill of Rights of the U.S. Constitution
As previously noted, the U.S. Supreme Court recently ruled in the case entitled Citizens United v. Federal Election Commission that Congress’ complete restriction of speech by corporations violated the First Amendment of the United States Constitution. The First Amendment, as we all know, states in pertinent part that: ”Congress shall make no law … abridging the freedom of speech, or of the press… “.
Note that the First Amendment has no qualifying statements regarding the protection of the freedom of speech. If the framers had so desired they could have limited the free speech guarantee to natural persons. They did not do so. This is so in part because the framers did not want our government to find ways to censure free speech.
While corporations are not natural persons, they are associations comprised of natural persons. The Courts opinion did not to say that Congress could never distinguish between natural persons and corporations or other business entities, or even foreign citizens or business organizations. The Supreme Court was careful to say that its opinion was limited to the absolute ban on corporate speech, and did not apply to limitations against speech by foreign nationals. This is why we saw Justice Samuel Alito mouth “not true” to President Obama’s sweeping rhetoric that the Court’s opinion would “open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.” That statement is simply not true. The Supreme Court has consistently stated that the freedom of speech is not absolute, and that some restrictions are constitutional if those restrictions are narrowly tailored to achieve a compelling state interest. It said so again in Citizens United.
After a few weeks of hand-wringing by Democrats who have been making the same sweeping allegations as did the President, we now see poll results of whether persons agree with the U.S. Supreme Court’s ruling. The Washington Post states:
Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.
The poll actually asked the two following questions:
Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections?
Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns?
I can understand why the respondents answered the way they did. The questions are biased, because they assume the Court removed all restrictions or limits on corporate political activity. If the Court had done so, I would have agreed with the questions, and the overwhelming responses given by those polled. But that’s not what the Court said. It said that an absolute ban on corporate speech was unconstitutional. There are no statements in the Court’s opinion that a rational legal scholar would say allows for “unfettered corporate spending.” In addition, the qualifications in both questions (i.e. ”to help political candidates win elections” and “on election campaigns” imply that the Court authorized spending either in coordination with, or directly to, candidates. The Court’s opinion was limited to independent expenditures that were neither coordinated nor made directly to candidates.
The poll biases aside, John Samples writes on the CATO blog that Americans are often at odds with the Constitution. Samples notes that while in the abstract, Americans overwhelmingly support the bill of rights and freedoms guaranteed therein, sizable portions of Americans — in some cases the majority thereof — oppose certain specific constitutionally protected acts of freedom. Those acts could include banning all private ownership of firearms or preventing public school students from wearing shirts that might offend others.
The genius of the Constitution was that it was written to protect minority rights and governmental participation, and not just what the majority might believe. Without the Bill of Rights which guarantees our rights regarding speech, religion, assembly, property ownership, arms ownership, and others, Congress would have the, shall we say, unfettered ability to pass laws desired by the majority that restrict those rights we hold to be so fundamental.
Leave a Comment » | Politics, The Law | Tagged: BCRA, citizens united, election law, first amendment, supreme court | Permalink
Posted by frankreilly
Today, the Austin City Council approved an ordinance to abolish the Northwest Austin Municipal Utility District No. 1 (the “District”). I have served as the District’s general counsel since 2002.
The District has had a rather fascinating ride since its creation in 1987. The Texas Water Commission, a predecessor agency to the Texas Commission on Environmental Quality, created the District by an order after the original developers negotiated with the City of Austin (the “City”). The District is located within the Austin city limits. This District, like other MUDs, is a financing mechanism that developers use to fund utility infrastructure and require home owners to pay back that cost with their taxes that pay off the long-term tax free bonds that the MUD issues.
When the City and the developers entered into an agreement authorizing the District’s creation, state law required them to allocate the respective taxes charged to District residents by the two taxing entities. So the District and the City charged the District’s residents full tax rates. Usually MUDs that are created inside a city limits pay a lower city tax rate as the MUD performs certain services and of course, has to have a high enough rate to repay the bonds. In the District’s case, those services included operating the 13.7 acre Trailhead Park and managing 400 or so acres of conservation lands set aside for endangered species mitigation for the Canyon Creek development.
In addition to the full taxation, the city negotiated to receive all of the District’s water and sewer lines, and ultimately, Trailhead Park. This full taxation continued unchallenged until some principled and determined residents sought and won positions on the District’s board of directors.
The Districts directors who served during that time period included Bill Ferguson, Don Zimmerman, Karen Temborius, Allen Weiss, Ed Swarthout, George Frederickson, Rob Ratcliff, Russell Hill and Chris Bowers.
The board of directors began putting pressure on city officials, who ultimately acceded to provide a water rate reduction equivalent to one-half of the District’s debt service to District residents in exchange for about 200 acres of the 400 acre District conservation lands. This transaction occurred after the District and some residents filed suit against the City claiming that the 1987 creation agreement illegally failed to allocate the City’s and District’s taxes. While the District was careful to make it clear that this transaction was separate from the lawsuit, clearly it was the lawsuit that brought the City to the table (along with strong and persistent activism from the board and some key residents).
The District lost the first round at the Travis County District Court, but won on appeal at the Austin Court of Appeals after several years of waiting for the opinion. The Texas Supreme Court declined to consider the City’s appeal, and after the City exhausted all rehearing options, the City informed the District in December, 2009 that the City intended to dissolve the District. Cities may dissolve MUDs that are wholly located within their city limits, provided that they assume all liabilities and assets of the MUD.
Had the City just taken that opportunity at the beginning of the litigation, the City could have avoided millions in legal fees. Instead, as a result of the litigation, and follow up litigation filed by District residents against the City to stop the illegal tax collection, the City agreed to pay the legal fees to the District’s lawyers (Greg Coleman of Yetter, Warden & Coleman took the case on a contingency basis, and the District’s residents were never in danger of having to pay those fees), plus an undisclosed amount of fees and expenses incurred by the City in the litigation.
Although they paid decades of unfair taxes, the end result for District residents is favorable. The settlement agreement that Greg Coleman and his team (including Chris Ward and Marc Tabolsky) negotiated requires the City to refund all of the District’s taxes paid by District landowners for 2009. Anticipating the dissolution, the District’s board drew from its operating fund reserves and made significant improvements to Trailhead Park (new sod on the fields, irrigation upgrades, a new play scape, a repaved parking lot, and upgrades to the pavilion) and the trails behind the park. The District also sold its remaining conservation lands to the Canyon Creek Homeowners Association (it was required to sell any assets at fair market value) so that they would remain in local control and not under the thumb of the City. Finally, the board ordered refunds of remaining operating account funds to 2008 taxpayers (as noted above, the City is refunding 2009 taxes).
The District created history in 2009 when it won its case before the U.S. Supreme Court, Northwest Austin MUD No. 1 v. Holder. The case successfully challenged the U.S. Justice Department’s refusal to allow the District to bail out from the requirements of Section 5 of the Voting Rights Act. The District became the first non-county political subdivision in the nation to win independence from the preclearance stigma of Section 5, which requires certain jurisdictions to prove that any proposed change in rules or procedures affecting voting is not discriminatory. Gregory S. Coleman of Yetter, Warden & Coleman of Austin argued the case and also took this case at no cost to the District and its taxpayers. I was honored to be seated with Mr. Coleman and his partner Christian Ward at the counsel’s table during the arguments before the Supreme Court.
So there is now one less taxing entity in Austin, and the property owners in that area are all the better for it. They will, over the next two and a half decades, save over $16 million in property taxes. They have a strong board of directors, dedicated to limited taxation, to thank for that savings.
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Houston lawyer and businessman Steve Munisteri has announced his intention to seek the chairmanship of the Republican Party of Texas at its June, 2010 convention.
Munisteri has a 38-year long history of activism, leadership and financial support for conservative and Republican causes. He was the founding chairman of Young Conservatives of Texas when it broke ranks from Young Americans for Freedom 30 years ago. He has served as a member of the State Republican Executive Committee, as a precinct chair, a delegate to multiple county, state and national GOP conventions, and as an organizer in Texas and other states for Ronald Reagan, George W. Bush, Fred Thompson and John McCain.
Munisteri stated, “I believe both the Republican Party of Texas as well as our country are at crossroads. Our country, which after the election of Ronald Reagan moved in the direction of free enterprise, entrepreneurship, strong national defense, less government intrusion in our lives, and lower tax rates, has been dramatically moved to the left by President Obama with massive government programs and bailouts. Republicans have a unique window of opportunity to reverse some of these disastrous Obama policies before it is too late, but must act quickly to seize momentum.”
Munisteri went on to explain his view of the Chairman’s role, “However, to do so, the Republican Party must be a more effective organization, and that is why I am seeking the role of Chairman. Although I am a solid Conservative I believe the Republican Party must do a better job at reaching beyond just its base to independent and minority voters without sacrificing its core beliefs. Most important to this effort, the Republican Party must do a much better job of reaching minority communities, especially the Hispanic community.”
Munisteri further stated that “in order for the Republican Party to remain a majority party in Texas, a new state Chairman must also be able to work all of the various activists and groups who are disenchanted with the liberal Democrats and Congress. It is vital to ongoing Republican success to keep all of these groups within the party.”
In addition to uniting the party, Munisteri will seek to put the party back on sound financial footing. He has the support of Bill McMinn and Mike Boylan, two key supporters and organizers of Associated Republicans of Texas, and former state party finance chair Rob Mosbacher. This blogger also serves as his campaign treasurer. In the short few weeks of campaigning in 2009, he raised $26,000 and had pledges of an additional $40,000.
Munisteri, who is retired from his law practice, will campaign full-time for the job, and if elected as chair, will be a full-time chairman. The campaign has opened a headquarters located at 3637 W. Alabama #210, Houston, Texas 77027.
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Posted by frankreilly
The U.S. Supreme Court issued its long-awaited opinion in the Citizens United v.Federal Election Commission case. In that opinion, the Court overturned prior precedent in two cases, and held that the federal government’s absolute ban on corporations and labor unions using their funds in federal elections was an unconstitutional infringement on the freedom of speech guaranteed by the First Amendment.
In addition to the watershed holding allowing the use of corporate or union funds in independent campaign expenditures, the Court’s opinion raises a few interesting questions. One question is whether Congress could narrowly tailor a ban on contributions from entities that have a special relationship to the government, such as vendors or national banks. Another question is whether Chief Justice Roberts’ concurrence, in which he explains the court’s swerve away from precedent as follows, is a harbinger for possible future court actions:
[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.” (slip op., pp. 7-8).
So in this case, the Court overturned, with a 5-4 split, a portion of a prior 5-4 split in a 2003 opinion in McConnell v. Federal Election Commission. The issues in both cases were “hotly contested.” If the Court was willing, a mere seven years later, to overturn a 5-4 split on this issue, what does that portend for other 5-4 opinions, in matters such as abortion issues and quotas? The Court is at an interesting crossroad, and its travels will be closely watched.
Note: Texas Ethics Commission posted the following on its website on January 22, 2010 with regard to the opinion:
As we have stated in advisory opinions, we believe the Texas Legislature intended laws under our jurisdiction to prohibit political expenditures by corporations to the full extent allowed by the Constitution, as interpreted by theUnited States Supreme Court. In light of the recently issued United States Supreme Court ruling in Citizens United v. Federal Elections Commission, it is our position that corporations are allowed to make all types of direct campaign expenditures (referred to in Citizens United as independent expenditures) regulated by Title 15 of the Election Code. It is also our position that corporations are still prohibited from making political contributions unless specifically allowed by Title 15 of the Election Code.
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Posted by frankreilly
