February 20, 2014

Excess Campaign Contribution Kerfluffle Raises A Different Issue Than It First Appears

For those closely following the harris County Republican primary, the issue of campaign donations to Judge M.L. "Meca" Walker has been a tempestuous controversy. For those not following the race, the issue is almost certainly below the radar. So let me toss out the bare-bones facts for you.

Local judicial candidate Meca Walker said she has returned campaign contributions given to her in violation of Texas ethics rules by employees of Houston auto magnate Don McGill, who has a pending divorce case in the Harris County family court over which she is seeking to preside.

Walker currently is the associate judge in that state district court, the 247th. The campaign contributions in question, $5,000 each from four Don McGill Toyota employees and their wives for a total of $40,000, were made in a single day in December.

* * *

State law limits the amount a person or couple can donate to a judicial candidate to $5,000.

Walker said she returned the excess contributions on Tuesday after receiving confirmation from the Texas Ethics Commission that the donations were greater than the limit, something she did not know.

"This is just a huge, innocent mistake that is being blown to epic proportions and it doesn't have to be," she said.

Now I'm not going to get into the matter of what candidate has been pushing this story and what former associate judge and court clerk are hoping to get positions under that candidate in the event Walker is not elected. Frankly, that is not my focus -- though it was a major issue in my decision not to endorse that other candidate and my vow to never endorse that former associate judge for any office in the future.

No, my focus is much different from the petty politics at work here.

It is, in fact, on the Constitution of the United States and how the law that led to the return of the excess donations may itself be an affront to the Constitution.

Consider what the law says -- that a married couple are to be treated as a single unit for making campaign donations to judicial candidates (and only judicial candidates). It halves the level of political contributions that two individuals are allowed to make to the same candidate based upon their exercise of a fundamental human right -- the right to marry. That, my friends, seems to me to violate the Equal Protection Clause of the Fourteenth Amendment.

Now for those of you unfamiliar with Equal Protection Clause jurisprudence, you have to realize that the courts use one of three standards when examining a law that treats people differently because of some status or classification. Three are a couple different levels of scrutiny to which such classifications are subject.


You may ask -- which level of scrutiny applies in this case? Now I'm not a lawyer, but I'd argue a case can be made that strict scrutiny should apply, due to the fact that a fundamental right (participation in the political process) is restricted due to the exercise of another fundamental right (the right to marry). After all, an individual's right to contribute to the candidate of his or her choice is restricted due to marital status -- an unmarried couple living together, even one with commingled assets, would be allowed to contribute twice as much to a particular judicial candidate than to a judicial candidate than a married couple is permitted to donate.

But I'll be honest -- I do not know if the law in question even survives a rational basis review. After all, there really is not a reasonable basis for limiting campaign contributions to to judicial candidates -- and only judicial candidates -- in this way. Every argument that would justify such a limitation would require that the total contributions to a single judicial race be so limited, not merely those to a single candidate in that race. What's more, those same arguments would rationally require that the limit be extended to all contributions to candidates for any political office, not merely judicial candidates. It is therefore fair to say that the disparate treatment of married couples lacks a sound rationale and therefore cannot stand up to under even the deferential standard for examining non-suspect classifications for Equal Protection infirmities.

Of course, our legal system is such that only real cases or controversies are considered by our federal courts. In order for there to be a ruling on the matter, someone would need to bring suit in federal court, alleging an actual harm. That would mean that some couple would have to come forward alleging harm and file suit in federal court -- something I doubt will ever happen because the cost of such a suit would far exceed the benefit of being able to donate an extra $5000 to the judicial campaign of their choice. As such, I hope that the Texas Legislature will take this matter up during its 2015 session and undo this act of discrimination against married couples.

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