5th Circuit: Texas churches can engage in recall elections Appeals panel cites 2013 ruling allowing corporations to form state Super PACs



less Pastor Charles Flowers of Faith Outreach Center International speaks as members of congregations from area churches gather on the steps of San Antonio City Hall on Tuesday, August 27, 2013, to voice their opposition to the city's nondiscrimination ordinance. Faith Outreach Center is one of three churches that sued the state arguing Texas election law prevented them from supporting recall efforts in San Antonio and Houston. Pastor Charles Flowers of Faith Outreach Center International speaks as members of congregations from area churches gather on the steps of San Antonio City Hall on Tuesday, August 27, 2013, to voice their ... more Photo: San Antonio Express-News Photo: San Antonio Express-News Image 1 of / 1 Caption Close 5th Circuit: Texas churches can engage in recall elections 1 / 1 Back to Gallery

AUSTIN — A recent court ruling that cleared the way for super PACs to influence state and local races in Texas also allows churches to coordinate efforts in recall elections without running afoul of campaign finance laws, according to a federal appeals panel.

The 5th U.S. Circuit Court of Appeals, in an opinion issued last week, clarified that churches, designated as nonprofit corporations, are not only permitted to partake in campaigns to recall sitting politicians but can also form a super PAC to band together in those endeavours.

Three churches sued the Texas Ethics Commission last year claiming that a state law prohibiting corporations from spending cash in recall elections prevented them from launching such efforts in the two cities.

The churches — a San Antonio congregation, Faith Outreach International Center, and two Houston churches, Joint Heirs Fellowship Church and the Houston First Church of God — asked the court to strike down the law.

However, the commission, which regulates state campaign finance laws, argued the ban on corporate money in recall elections was no longer being enforced after the 5th Circuit ruled in 2013 that certain political action committees can accept money from a corporation to make independent expenditures in an election.

In court filings, the commissions said in light of that ruling the three churches were not breaking any law by pooling resources and money in a recall election so long as they registered as a super PAC, which is not allowed to coordinate with a candidate.

The 5th Circuit agreed with the commission, ruling the churches "cannot show a credible threat of enforcement by the Commission because of this court's precedents."

"The churches are trying too hard to claim injury," a three-judge panel wrote in its opinion.

Lawyers representing the churches did not return requests for comment. They can still ask for the decision to be reconsidered by the full 5th circuit.

For now, the ruling provides legal guidance for churches throughout Texas on the ability to engage in recall elections.

The San Antonio and Houston churches, upset over ordinances passed in both cities in 2013 to protect gay people, planned to launch coordinated recall movements targeting former San Antonio Mayor Julian Castro, along with the entire City Council at the time, and Houston Mayor Annise Parker. Houston's ordinance is suspended pending the outcome of a Tuesday referendum.

The groups never went through with the recall efforts, citing state law and a case out of El Paso.

In 2012, a state appeals court ruled against a congregation in El Paso that spearheaded recall efforts against the city's mayor at the time, concluding that state law was broken because a corporation engaged in the recall.

Lawyers for the churches in San Antonio and Houston said the 2012 case has had a "chilling effect" for congregations wanting to engage in recalls and that state law was still ambiguous on the issue even after the 5th Circuit ruled to allow super PACs.

The three-judge panel rejected that idea, writing that the El Paso case predated the court's decision allowing certain political action committees to accept corporate contributions during elections, including recalls.

The final decision handed down by the appeals panel was somewhat telegraphed during oral arguments in September. That's when judges raised the idea of wrapping up the case by concluding the churches could not prove they were facing any threat of enforcement from the commission — and could proceed with their recall activities.

"You will not take 'yes' for an answer," Judge Leslie Southwick told the church lawyers, who opposed such a ruling.

During oral arguments, Judge Edith Jones also laid into the church lawyers, describing claims that the commission could simply ignore the court's super PAC ruling and seek to prosecute the congregations as "rather paranoid."

"That sounds to me like an argument abortion providers would make and say the law enjoined abortions, but it's still there on the books," she said. "It doesn't quite make sense to me."