Statement of Facts

A. Texas Association of Business

TAB is a Texas non-profit corporation organized and

existing under the laws of the State of Texas, with its

principal place of business in Austin, Texas. TAB promotes

the free enterprise system by working to improve the Texas

business climate and to help make our state’s economy the

strongest in the world. Additionally, TAB lobbies on every

issue that impacts business to ensure that employers’

opinions are being heard. TAB’s efforts have aided

businesses from the largest multi-national corporations to

small businesses in nearly every community of our state.

See Appendix, Tab VV at Exhibit A.

B. BACPAC

TAB also sponsors a voluntary, non-profit,

unincorporated committee, known as the Texas Business

and Commerce Political Action Committee (BACPAC). The

purposes of BACPAC are:

To encourage and strive for the improvement of government by advocating and promoting active

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participation in the political process by Texas businessmen and women;

To promote political education in the Texas business community to increase understanding and appreciation for how the political process impacts the actions of government and the shaping of public policy, as it pertains to business issues;

To assist members of the Texas business community in organizing for more effective political action;

To uphold the tradition of individual liberty, competition, free enterprise, and support the rights guaranteed by the Constitution;

To establish and encourage constituent relationships and communications between Association members and elected officials; and

To solicit contributions from members and make political contributions on behalf of BACPAC to candidates for elective office, as permitted by law.

See Appendix, Tab VV at Exhibit A.

C. The Criminal Grand Jury Investigation

The Travis County District Attorney’s Office is targeting,

for criminal investigation, the actions of TAB which were

taken during the 2002 election cycle. Various grand jury

subpoenas have been issued (See Appendix, Tab A; Tab B;

Tab D; Tab M; Tab VV at Exhibits 3 and 4; Tab ZZ at Exhibit

2

3; Tab AAA at Exhibit 4;) , and the State has filed four

motions for contempt (See Appendix, Tab I, Tab R and Tab

FF), the latter two of which were granted by the Trial Court

(See Appendix, Tabs J and S), for which commitment orders

were entered (See Appendix, Tabs K and T).1

Because the First Amendment protections asserted

herein depend upon the actual content of the speech in each

particular piece of direct mail, TAB will discuss these mailers

in two separate categories: TAB public education pieces and

BACPAC direct mail pieces.

1. TAB public education mail pieces

During the 2002 state election cycle, TAB

independently provided voters, via eighty-six (86) direct

mailers, with information on candidates for the Texas House

of Representatives and the Texas Senate. See Appendix,

Tab XX. The mail pieces were funded through the Texas

Association of Business’ general account, which contains

moneys received from dues, special assessments, and other

revenue-producing activities of the Texas Association of

1 All of these matters will be collectively referred to herein as the “Criminal Grand Jury Investigation.”

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Business. See Appendix, Tab VV at Exhibit A. These mailers

provided by TAB highlighted a particular candidate’s view on

specific issues, such as lawsuit reform, healthcare and

taxes.2 Id. These voter education pieces were informational

only, and did not encourage readers to vote for or against

any candidate. Id. Additionally, these mail pieces did not

use any words or phrases, such as “vote for,” “elect,”

“support,” “cast your ballot for,” “vote against,” “defeat” or

“reject.” Id. TAB prepared these issue advertisements on

their own volition, without consultation with or cooperation

from any candidate or agent thereof. Id.

2. BACPAC direct mail pieces

Although none of the TAB voter education pieces

expressly advocated the election or defeat of a particular

2 Text of sample TAB voter education piece: “Raising your taxes can cause a gloomy outlook for years to come. Some legislators predict an overcast 2003 Legislative session… Big spenders in the Legislature want to raise your taxes to meet their budget, even though history has shown that higher taxes delay economic recovery. Martha Wong believes today’s gloomy forecast can turn to clear skies if the Texas Legislature slows spending down. Martha Wong believes that Texans shouldn’t have to pay one more dollar in taxes. Martha Wong believes Texas Government can make modest cuts until an economic upswing brings in more revenue. Martha Wong believes that raising taxes will become a vicious cycle that will on repeat itself in future bienniums. The Texas Association of Business believes that Texans do not have to choose between new taxes or harsh cuts in programs that will harm our most needy citizens. Martha Wong believes that the outlook for Texas is clear skies if we hold the line and look at solutions other than raising taxes.” See Appendix, Tab XX at Movants’ Exhibit 1.

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candidate, BACPAC mailers did.3 See Appendix, Tab VV, at

Exhibit A. These mailers have a reference to BACPAC on the

mailer itself, were funded by moneys contributed to BACPAC,

and BACPAC contributions were publicly reported by BACPAC

to the Texas Ethics Commission. Id. Even though BACPAC

engages in express advocacy and is subject to the regulatory

authority of the State, BACPAC nevertheless enjoys and

asserts the same freedom of association under the First

Amendment as does TAB. 4

D. The Hammond Grand Jury Subpoenas

William Hammond is President and CEO of TAB. See

Appendix, Tab VV, at Exhibit A. Hammond was served with a

Grand Jury Subpoena Duces Tecum seeking testimony and

documents pertaining to TAB activities during the 2002

election cycle. See Appendix, Tab AAA at Exhibit 4.

3 Text of sample BACPAC express advocacy piece: “When Donnie Jarvis, Jr. tells you that he’s your only choice for State Representative, he’s not telling you the truth. Look at the facts: President George W. Bush appointed State Representative Ron Clark to be a federal judge last January. But Tom Daschle & his fellow liberals had a scheme. They held up Ron’s confirmation until it was too late under Texas law to replace his name on the ballot for state representative. Donnie Jarvis, Jr. says he is the only choice. But, if Donnie is elected, you’ll have a liberal with a checkered past representing you in Austin. Donnie accepted county funds from his dad—a judge who was reprimanded for nepotism. Instead, vote for Ron Clark—the conservative. If Ron wins, the Governor will call a special election in January, and you’ll have a choice between liberal Donnie Jarvis, Jr. or a Republican conservative. For an honest election, and true choice, vote for Ron Clark on November 5th.” See Appendix, Tab RR at Movants’ Exhibit 3. 4 See FEC v. National Conservative PAC, 470 U.S. 480, 494 (1985) (“We also reject the notion that the PAC’s form of organization or method of solicitation diminishes their entitlement to First Amendment Protection.”).

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Categories 8 and 10 of the subpoena compel disclosure of

the following matters that implicate First Amendment

protections:

All records identifying and relating to the source of funds used by the Texas Association of Business to pay the costs associated with the design, printing, and mailing of all mailers described in item number one.5

All correspondence, including electronic mail, to or from any employee or agent of the Texas Association of Business and any person, business, or entity (including Association members) between the dates of November 1, 2001, and the present, that relates in any way to the solicitation of money or services or the offer of money or services for use by the Texas Association of Business in disseminating information to the public about elections and/or candidates for election in the State of Texas. This is to include, but not be limited to, the preparation and mailing of mailers or advertisements, letter writing campaigns, the hosting of receptions, the purchase of advertising in print or electronic media, and the preparation and maintenance of a website.6

See id.

The State sought a Motion for Contempt for his failure

to appear and for his failure to produce documents. See

Appendix, Tab FF. Mr. Hammond filed a Motion to Quash this 5 Category number one of the Hammond grand jury subpoena duces tecum relates to TAB’s public education issue ads, none of which constitutes express advocacy. Thus, category number eight of the Hammond grand jury subpoena seeks the identity of donors for these public education issue ads, in direct violation of Applicants’ right to free speech and freedom of association.6 This category of documentation demands the disclosure of both internal and external TAB communications relating to funding of constitutionally-protected public education issue advocacy.

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subpoena (See Appendix, Tab AAA), which was denied by the

Trial Court. See Appendix, Tab PP. Mr. Hammond received

two additional subpoenas; one for an appearance on March

27, 2003, and another for an appearance on June 6, 2003.

See Appendix, Tab B and Tab VV at Exhibit 3. Both of these

latter subpoenas seek testimony and documents.

E. The Shelton Grand Jury Subpoenas

Don Shelton is employed as the Information Systems

Director of TAB, and served in that capacity during the 2002

state election cycle. See Appendix, Tab VV at Exhibit A.

Shelton was served with a Grand Jury Subpoena Duces

Tecum seeking testimony and documents pertaining to TAB

activities during the 2002 election cycle. See Appendix, Tab

ZZ at Exhibit 3. Categories 3 and 4 of the subpoena compel

disclosure of the following matters that implicate First

Amendment protections:

All electronic mail, including deleted messages, to or from any employee or agent of the Texas Association of Business and any person, business, or entity (including Association members) between the dates of November 1, 2001 and the present, that relates in any way to the solicitation of money or services or the offer of money or services for use by the Texas Association of Business in

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disseminating information to the public about elections and/or candidates for election the State of Texas. This is to include, but not be limited to, the preparation and mailing of mailers or advertisements, letter writing campaigns, the hosting of receptions, the purchase of advertising in print or electronic media, and the preparation and maintenance of a website.

All backup archive media for the email server containing messages to or from any employee or agent of the Texas Association of Business and any person, business, or entity (including Association members) between the dates of November 1, 2001, and the present that relates in any way to the solicitation of money or services or the offer of money or services for use by the Texas Association of Business in disseminating information to the public about elections and/or candidates for election the State of Texas. This is to include, but not be limited to, the preparation and mailing of mailers or advertisements, letter writing campaigns, the hosting of receptions, the purchase of advertising in print or electronic media, and the preparation and maintenance of a website.

See id.

The State filed a Motion for Contempt for Mr. Shelton’s

failure to appear and for his failure to produce documents.

See Appendix, Tab FF. Mr. Shelton filed a Motion to Quash,

which was denied by the Trial Court. See Appendix, Tab PP.

Mr. Shelton received an additional subpoena for testimony

and documents on June 6, 2003. See Appendix, Tab A.

F. The Campbell Grand Jury Subpoenas

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TAB’s Governmental Affairs Manager, Jack Campbell,

was served with a grand jury subpoena for an appearance

on March 27, 2003. See Appendix, Tab VV at Exhibit 4. The

subpoena orders Campbell to appear and provide testimony

and documents to the Grand Jury. See id. Mr. Campbell filed

a Motion to Quash, which was denied by the Trial Court. See

Appendix, Tab PP. Mr. Campbell received an additional

subpoena for June 2, 2003 (See Appendix, Tab M), which is

the subpoena which lead to the commitment order made the

basis of this Original Petition for Writ of Habeas Corpus.

G. The DeWitt Grand Jury Subpoena

TAB’s Communications Director, Cathy DeWitt, was

served with a grand jury subpoena for an appearance on

June 2, 2003. See Appendix, Tab D. This subpoena is the

subpoena which lead to the commitment order made the

basis of this Original Petition for Writ of Habeas Corpus.

H. These Subpoenas Seek Protected Information

All of these subpoenas and questions seek information

which is protected from disclosure under the First and

Fourteenth Amendments to the United States Constitution.

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See Appendix, Tab A; Tab B; Tab D; Tab M; Tab VV at

Exhibits 3 and 4; Tab ZZ at Exhibit 3; Tab AAA at Exhibit 4;

and Tab AA at Exhibit 1. The recipients of these subpoenas

were employees and/or board members, so they are aware

of internal confidential TAB activities and possess

confidential documents owned by TAB. See Appendix, Tab

VV at Exhibit A. These communications and documents

pertain to TAB’s voter education efforts, which is

constitutionally-protected free speech and therefore beyond

the power of the State to regulate. Id. Furthermore, the

documents sought by the grand jury subpoenas and

questions by the grand jury will necessarily reveal the

identities of some of the members and/or donors of TAB.

See Appendix, Tab A; Tab B; Tab D; Tab M; Tab VV at

Exhibits 3 and 4; Tab ZZ at Exhibit 3; Tab AAA at Exhibit 4;

and Tab AA at Exhibit 1. This is of grave concern to TAB and

to the Applicants because it is highly likely that the district

attorney and/or civil plaintiffs will subpoena these individuals

in pursuit of frivolous claims against these individuals,

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should their identity become known.7 See Appendix, Tab VV

at Exhibit A. The Austin American Statesman has repeatedly

chastised TAB for refusing to identify its members and

donors. Id. It is therefore obvious that the compelled

disclosure of TAB contributors’ names will subject them to

threats, harassment and reprisals from government officials

and private parties alike. Id.

Procedural History

A. The Trial Court’s Ruling

On April 8, 2003, the Honorable Mike Lynch of the

167th Judicial District Court of Travis County, Texas, issued

his ruling on the various motions to quash. See Appendix,

Tab PP.8 Judge Lynch recognized that TAB was entitled to 7 On November 22, 2002, two separate lawsuits were filed against Relator TAB and Relator Bill Hammond in Texas state court by unsuccessful candidates alleging that TAB had violated various provisions of the Texas Election Code. (Cause No. GN2004224; Ann Kitchen, Debra Danburg and Danny Duncan v. Texas Association of Business d/b/a Texas Association of Business & Chambers of Commerce, and William O. Hammond; in the 53rd Judicial District Court of Travis County, Texas; and Cause No. GN204226; James Sylvester v. Texas Association of Business, et al.; in the 126th Judicial District Court of Travis County, Texas). These lawsuits, along with the instant criminal investigation, have had and threaten to have a chilling effect on TAB’s First Amendment right to political speech. As a result of the above actions, a cloud has been cast over TAB’s educational efforts. TAB is now faced with the difficult choice of either censoring itself or risking undue harassment. See Appendix, Tab VV at Exhibit A. 8 The Trial Court’s ruling came after two separate days of hearing testimony and argument of counsel. See Appendix, Tab QQ, RR, WW and XX. During the hearings, the State sought privileged information about TAB’s public education issue advocacy campaign, the funding of that campaign, as well as donor and member information. See id. TAB repeatedly asserted its objections to those questions during the questioning of TAB employees Sandra McGee, Cathy DeWitt and TAB Board Member Chuck McDonald. See id.

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the First Amendment’s protections of free speech and

freedom of association. Id. at 2. Judge Lynch also held that

TAB made its prima facie showing that it would suffer

threats, harassment and reprisals from the grand jury’s

investigation. Id. Nevertheless, he refused to address TAB’s

argument that the First Amendment’s protection of political

speech (as interpreted in Buckley v. Valeo and its progeny)

completely barred the grand jury’s investigation into TAB’s

issue advertising. Id. at 4. Nor did he determine whether

any of the ads in question constituted express advocacy. Id.

Nor did he explain whether any evidence or viable legal

theory of coordination between TAB and any benefited

candidate exists. Id. Accordingly, Judge Lynch denied the

motions to quash. Id.

He nevertheless entered a protective order that

excused compliance with the subpoenas in some ways. Id at

6. Judge Lynch protected the names of non-corporate TAB

members and donors from disclosure, and also protected the

names of “corporate members and member-donors” from

disclosure “unless and until the State makes a record, in

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camera, showing that the names are relevant to specific

possible criminal activity.” Id. On April 9, 2003, Applicants

filed a Motion for Emergency Stay with Judge Lynch, which

he temporarily granted that same day through April 18,

2003. See Appendix, Tab OO.

B. The Court of Appeals’ Ruling

TAB immediately filed a Petition for Writ of Mandamus

and a Motion for Temporary Stay on April 10, 2003 in the

Third Court of Appeals at Austin. See Appendix, Tabs LL, MM

and NN. On April 14, 2003, Justices Kidd, Yeakel and

Patterson granted a temporary stay. See Appendix, Tab KK.

In a per curiam memorandum opinion issued May 9, 2003,

Justices Kidd, Yeakel and Patterson vacated the April 14,

2003 temporary stay, overruled TAB’s motion for temporary

stay, and denied TAB’s Petition for Writ of Mandamus,

without opinion. See Appendix, Tab JJ.

C. The Texas Court of Criminal Appeals’ Ruling

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TAB immediately filed a Petition for Writ of Mandamus

and a Motion for Temporary Stay on May 12, 2003 with this

Court. See Appendix, Tabs HH and II. On May 21, 2003, this

Court denied TAB’s Petition without written opinion. In a

statement concurring in the Court’s May 21, 2003 Order

denying TAB’s Motion for Leave to File a Writ of Mandamus,

the following paragraph was included:

Relators’ claims of no adequate remedy at law are not yet ripe. While the subpoenae have been issued, there is no claim that any relator has been called to appear before the grand jury or has been asked to answer questions that would impinge on Relators’ First –Amendment rights. This is not to say that Relators must literally go to jail before such rights may be asserted; I note only that, at the time this motion for leave to file was directed to this Court, no relator had committed an act that could be condemned as contemptuous.

(In Re Texas Association of Business, William O. Hammond, Don Shelton and Jack Campbell v. Honorable Mike Lynch, No. 55,903-01 (Tex. Crim. App. May 21, 2003) (Johnson, J., concurring, in which Price and Cochran, J.J. joined)). (See Appendix, Tab GG).

Following this ruling, TAB supplemented the record

with a letter dated May 22, 2003 informing this Court

that the State had previously filed two Motions for

Contempt. See Appendix, Tab FF. On June 4, 2003, this

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Court denied relief. See Appendix, Tab C. As will be

demonstrated below, any lack of ripeness surrounding

TAB’s previous constitutional complaints have now

matured, because two TAB employees have been held

in contempt and ordered to jail. See Appendix, Tabs J,

K, S and T.

D. The Judgments of Contempt and Commitment Orders

Following TAB’s unsuccessful efforts to block

unconstitutional grand jury subpoenas by mandamus

petitions, two additional grand jury subpoenas were issued

to Jack Campbell and Cathy Dewitt for an appearance on

June 2, 2003. See Appendix, Tabs D and M. Instead of filing

Motions to Quash, as TAB had done in the past, Applicants’

heeded this Court’s concurring opinion and instead appeared

before the grand jury and plead the Fifth Amendment. In

return, the State filed Motions for Derivative –Use Immunity,

which were granted by the Trial Court. See Appendix, Tabs

E, F, N and O. Thereafter, Applicants were asked a series of

questions, as evidenced by the questions under seal, to

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which they asserted the First Amendment. See Appendix,

Tab AA at Exhibit 1.9 The State filed a Motion to Compel

Testimony (See Appendix, Tabs G and P), which was granted

by the Trial Court (See Appendix, Tabs H and Q), and

Applicants were ordered to answer the questions. Applicants

thereafter refused to do so, and the State filed Motions for

Contempt (See Appendix, Tabs I and R), which were granted

by the Trial Court (See Appendix, Tabs J and S). Applicants

were then committed to the Travis County Jail (See

Appendix, Tabs K and T), but released on personal

recognizance bonds of $2500.00 each. See Appendix, Tabs

L and U). Because Applicants’ liberty has been deprived,

Applicants’ claims are now ripe for determination.

Argument

According to the Travis County District Attorney,

Section 253.094 of the Texas Election Code sets forth the

statutory justification for its criminal investigation:

9 Although ads were generated both by TAB and by BACPAC, the definition of “mailers and other ads” accompanying the Grand Jury questions posed on June 2, 2003 are exclusively focused on the TAB ads. See Appendix, Tab AA, at Exhibit 1. Furthermore, that same definition is not limited to express advocacy. See id. (definition of “mailers and other ads” limited to TAB sponsored ads, but applicable to any ad that “mentions” any political candidate by name). Thus, the sealed questions drive a stake right through the heart of Applicants’ rights of free speech and freedom of association.

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Ҥ 253.094 Contributions and Expenditures Prohibited

(a) A corporation … may not make a … political expenditure that is not authorized by this subchapter …

(b) A person who violates this section commits an offense. An offense under this section is a felony of the third degree.”

See TEX. ELEC. CODE § 253.094. Section 253.094’s reference

to a “political expenditure” is defined elsewhere in the Code

as a “campaign expenditure.” See TEX. ELEC. CODE §

251.001(10). Moreover, a “campaign expenditure” is

defined as “an expenditure made by any person in

connection with a campaign for an elective office.” See id.

at § 251.001(7). In addition, a “direct campaign

expenditure” is defined as a “campaign expenditure that

does not constitute a campaign contribution by the person

making the expenditure.” See id. at § 251.001(8). Thus,

taking subparagraphs (7), (8), and (9) together, the Texas

Election Code creates a category of campaign expenditure

similar to an “independent expenditure” under federal law.

See Osterberg v. Peca, 12 S.W.2d 31, 36 n. 2 (Tex. 2000).

17

However, while the Federal Election Campaign Act clearly

inserts the “express advocacy” standard in its definition of

“independent expenditure”, the Texas Election Code does

not. Compare TEX. ELEC. CODE § 251.001(7), (8) (defining a

“direct campaign expenditure” as an expenditure made “in

connection with a campaign for elective office or on a

measure” that “does not constitute a campaign

contribution”), and 1 TEX. ADMIN. CODE § 20.1 (direct

campaign expenditure is “made without the prior consent or

approval of the candidate or officeholder on whose behalf

the expenditure was made”), with Federal Election

Campaign Act, 2 U.S.C. § 431(17) (2002) (defining an

“independent expenditure” as an “expenditure by a person

expressly advocating the election or defeat of a clearly

identified candidate and that is not made in concert or

cooperation with or at the request or suggestion of such

candidate, the candidate’s authorized political committee, or

their agents, or a political party committee or its agents”),

and Colorado Republican Fed. Campaign Comm. v. Federal

Election Comm’n, 518 U.S. 604, 609 (1996) (clarifying that

18

an “independent” expenditure is an expenditure “not

coordinated with the candidate or the candidate’s

campaign”). See generally, Op. Tex. Ethics Comm’n No. 336

(1996) (“Although the term ‘independent campaign

expenditure’ is not used in Texas law, it is often more easily

grasped than the term ‘direct expenditure,’ which Texas law

uses to describe a campaign expenditure made without the

prior consent or approval of the candidate benefited”).

Recognizing the constitutional limitations contained in

the First Amendment and certain key decisions, such as

Buckley v. Valeo, 424 U.S. 1 (1976) and Federal Election

Comm’n v. Massachusetts Citizens for Life, 479 U.S. 238

(1986), the Texas Ethics Commission held that the § 253.094

prohibition of corporate political expenditures is limited to

express advocacy. See Op. Tex. Ethics Comm’n No. 336

(1996) and No. 198 (1994). However, no Texas appellate

court has ever decided this issue.

In the case at bar, Applicants contend that the scope of

the state statute should be construed narrowly to restrict its

applicability to express advocacy. Alternatively, Applicants

19

contend that the statute is unconstitutional. In either event,

because the TAB ads in question do not contain express

advocacy, the judgments of contempt and commitment

orders violate Applicants’ constitutional rights of free speech

and freedom of association.

Just last month, this Honorable Court issued its opinion

in Doe v. State of Texas, No. 254-02, 2003 WL 21077961

(Tex. Crim. App. May 14, 2003). Of significance to the

instant case, is the constitutional test this Court applied to

determine whether an election code provision violates the

First Amendment. More specifically, this Court held that,

because a particular statute burdens core political speech,

that enactment is subject to exacting scrutiny and can only

be upheld if it is narrowly tailored to serve an overriding

state interest. See id. at *2-*3 (relying on McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 347 (1995)). The analysis

in Doe applies here: Neither the Grand Jury Investigation nor

the election code provisions upon which the subpoenas are

based are “sufficiently narrowly tailored to serve an

20

overriding state interest without placing an undue burden on

constitutionally protected free speech.” See id.

Despite raising the issue with the Trial Court, Judge

Lynch did not address this question. Nor did he determine

whether any of the ads in question constitute express

advocacy. The State’s attempt to compel the production of

documents and to force sworn testimony about TAB’s public

education issue advocacy campaign cannot be sustained

unless and until it is found by the trial court that TAB

engaged in express advocacy. If the content of the ad does

not cross the constitutional line of demarcation between

public education issue discussion and express campaign

advocacy, then the State is prohibited from regulating

Applicants’ speech, and Applicants’ conduct is outside the

reach of the Travis County District Attorney.10 Judge Lynch’s

refusal to make findings on this issue amounts to clear error,

and the contempt judgments and commitment orders based

on Applicants’ refusal to answer certain questions before the 10 As was explained by Applicants’ in the Trial Court below, the sole exception to the absolute privilege of free speech is evidence of coordination between TAB and any of the benefited candidates. No such evidence was alleged by the State, much less proven, at the hearing on the various motions to quash. Nor has the State offered a viable legal theory of coordination. Coordination is discussed on pages 36 to 43, infra.

21

grand jury was also clear error. Because Applicants’ release

on a personal recognizance bond is a deprivation of liberty,

Applicants seek a writ of habeas corpus. See Ex Parte

Robinson, 641 S.W.2d 552, 553-54 (Tex. Crim. App. 1982)

(citing Ex Parte Trillo, 540 S.W.2d 728, 730 (Tex. Crim. App.

1976), overruled on other grounds, Aguillar v. State, 621

S.W.2d 781, 785 (Tex. Crim. App. 1981)); see also Ex Parte

Clark, 813 S.W.2d 696, 697 (Tex. App.—Houston 1991).

A writ of habeas corpus is merited in this case because

federal constitutional law clearly prevents the State’s

attempt to regulate Applicants’ conduct. As decided in

numerous federal circuits, and most recently in the Fifth

Circuit, public education issue discussion is constitutionally

protected free speech. See generally Chamber of Commerce

of the USA v. Moore, 288 F3d 187, 195 (5th Cir 2002), cert.

denied, 123 S. Ct. 536 (mem), 154 L. Ed. 2d 425; Citizens for

Responsible Gov’t State Political Action Comm. v. Davidson,

236 F.3d 1174, 1187 (10th Cir. 2000); FEC v. Christian

Coalition, 52 F.Supp. 2d 45, 63-64 (D.D.C. 1999); Iowa Right

22

to Life Comm., Inc. v. Williams, 187 F.3d 963, 969 (8th Cir.

1999); FEC v. Christian Action Network, Inc., 110 F.3d 1049,

1051 (4th Cir. 1997); Faucher v. FEC, 928 F.2d 468, 472 (1st

Cir. 1991); FEC v. Cent. Long Island Tax Reform Immediately

Comm., 616 F.2d 45, 53 (2nd Cir. 1980) (en banc).

The Fifth Circuit in Moore reiterated the famous

footnote from Buckley and stated:

The Supreme Court has held that the First Amendment permits regulation of political advertisements, but only if they expressly advocate the election or defeat of a specific candidate…We hold that a state may regulate a political advertisement only if the advertisement advocates in express terms the election or defeat of a candidate.

See Moore, 288 F.3d at 190, citing Buckley v. Valeo, 424 U.S.

1, 44, n. 52 (1976). As will be demonstrated herein, the

Travis County District Attorney’s effort to use a state grand

jury to compel testimony and documents relating to

Applicants’ conduct in connection with the 2002 election

cycle violates the First and Fourteenth Amendments to the

United States Constitution and Article I, Section 8 of the

Texas Constitution.

23

The Criminal Grand Jury Investigation seeks two broad

categories of information. First, they seek information

regarding public education issue advocacy by TAB during the

election, which is free speech protected by the First

Amendment. Second, they seek information about members

and donors of TAB, which the First Amendment protects

against compelled disclosure. Applicants will address each

category below.

A. Freedom of Speech Bars the Grand Jury’s Investigation Into “Issue Advocacy”

The first category of information sought by the Grand

Jury Investigation are the eighty-six public education issue

ads mailed by TAB during the 2002 election. The First

Amendment encircles public education issue advocacy with

a wall against which the State cannot scale. Moreover, the

United States Supreme Court gave that wall clear boundaries

to ensure that political speech would never be chilled by

uncertainty. Even though TAB carefully crafted their mailers

in reliance on that Court’s wall of First Amendment

protection, they and their employees now find themselves

24

targeted by grand jury subpoenas and questions seeking the

very information protected by the Federal and State

Constitutions. Because the First Amendment clearly protects

public education issue advocacy against all forms of State

encroachment, Applicants are entitled to a writ of habeas

corpus and all aspects of the grand jury subpoena that seek

information because of those issue ads should be quashed.

1. The Supreme Court Carved Out An Absolute Protection for “Issue Advocacy”

In Buckley v. Valeo, 424 US. 1 (1976), the United States

Supreme Court considered the constitutionality of the

Federal Election Campaign Act (“FECA”), a sweeping election

reform law. In a groundbreaking decision, the Buckley court

held that FECA’s restrictions on political contributions and

expenditures implicated the First Amendment because

political contributions and expenditures were “political

speech.” After all, “virtually every means of communicating

ideas in today’s mass society requires the expenditure of

money.” Buckley, 424 U.S. at 19. The High Court, perhaps

following the national concern over political corruption in the

25

wake of the Watergate scandal, agreed that the

governmental interest in preventing corruption or the

appearance of corruption was “compelling” for purposes of

strict scrutiny. Nevertheless, when it came to the question

of “narrow tailoring,” the Court reiterated that the First

Amendment was even more important than the fear of

corruption. While FECA’s limitations on contributions met

First Amendment requirements, FECA’s limitations on

expenditures failed to satisfy the First Amendment’s

command that political expression be protected.

The key problem with the expenditure provision was

that it broadly imposed a limit on expenditures “relative to a

clearly identified candidate.” The Court held that this

statutory language would only pass First Amendment muster

if it were limited to “communications that include explicit

words of advocacy of election or defeat of a candidate.” Id.

at 43. Without the restriction, the statutory language would

burden more than merely campaign-related speech and thus

become overbroad and vague. It would impermissibly

burden most speech related to political issues. The Court

26

acknowledged that the difference between campaign-related

speech and issue-related speech was not always clear:

“[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.”

Id. at 42. As a result, the Court held that it was important to

provide clear rules that speakers could follow so that they

could speak with confidence that they would not be

prosecuted or sued for that speech:

"[T]he supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.”

Id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535

(1945)).

27

That concern for clarity led the Court to choose a test

that would be easily applied before-the-fact. FECA’s

restrictions on political expenditures could only apply to

“expenditures for communications that in express terms

advocate the election or defeat of a clearly identified

candidate for federal office.” Id. at 44. The Court offered a

now-famous footnote to further explain:

“This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your vote for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’”

Id. at 44, n. 52. Though these terms have sometimes been

dismissively called “magic words,” they provide the clear

guidance commanded by the First Amendment. The Court

even recognized that its strict restriction on FECA’s

expenditure rules would severely limit those rules:

“The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation’s effectiveness…. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate’s campaign.”

28

Id. at 45. Thus, even though the “express advocacy” test

could be easily evaded by the careful use of words, the Court

held that First Amendment required nothing less. As one

court later noted, “the Supreme Court felt that the First

Amendment required a choice between a toothless provision

and one with an overbite.” FEC v. Christian Coalition, 52

F.Supp. 2d 45, 63 (D.D.C. 1999).

The Court extended Buckley in FEC v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”). In

MCFL, the Court reiterated that “an expenditure must

constitute ‘express advocacy’ in order to be subject to”

regulation. Id. at 249. The Court also reemphasized the

need for specific words: “We therefore concluded in

[Buckley] that a finding of ‘express advocacy’ depended on

the use of the language such as ‘vote for,’ ‘elect,’ ‘support,’

etc.” Id. The Court applied the “language” test and

accordingly held that the Massachusetts Citizens for Life’s ad

was “express advocacy” because it urged the reader to

29

“Vote Pro-Life” and then listed pro-life candidates by name.

Id.

The Court also extended the Buckley holding to protect

the political speech of corporations. (Buckley had, on its

face, only applied to individuals.) Because the statute at

issue in MCFL limited “expenditures” by corporations or

unions, and because those entities were entitled to engage

in discussion of political issues, the Court imposed the same

“express advocacy” interpretation on the statute. Id. at 249.

The holding echoed the Court’s decision in First National

Bank of Boston v. Bellotti, 435 U.S. 765, 780-84 (1978), that

corporations have the right to free speech under the First

and Fourteenth Amendments to the Constitution. Thus,

“express advocacy” by a corporation may be prohibited,11

though other political speech by a corporation cannot. This

Court thereby reaffirmed and extended the express

advocacy standard to corporate political speech, ruling that

while express advocacy by corporations could be 11 The Court refined this holding in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). In Austin, the Court held that express advocacy by a corporation receives greater protection if the corporation is essentially nothing more than an organ of political speech. Austin only concerned express advocacy, see id. at 714 and 656, so the line between express and issue advocacy remains distinct.

30

legitimately prohibited, speech falling short of express

advocacy could not.

2. The Courts of Appeal Have Implemented Buckley As A Bright-Line Rule

In the years following Buckley and MCFL, the federal

courts of appeal have overwhelmingly held that Buckley’s

“express advocacy” test requires a “bright line” rule so that

the speaker can know ahead of time whether his speech will

be protected by the First Amendment or will run afoul of

regulations on “express advocacy.” This has been the

conclusion of the First, Second, Fourth, Fifth, Eighth and

Tenth Circuits, as well as the DC District Court.

The first federal appellate court to address the proper

application of Buckley was the Second Circuit, which held

that a federal election statute could not regulate statements

made “for the purpose, express or implied, of encouraging

election or defeat.” FEC v. Cent. Long Island Tax Reform

Immediately Comm., 616 F.2d 45, 53 (2nd Cir. 1980) (en

banc) (emphasis added). The First Circuit was next, drawing

a clear line because “trying to discern when issue advocacy

31

in a voter guide crosses the threshold and becomes express

advocacy invites just the sort of constitutional questions the

Court sought to avoid in adopting the bright-line express

advocacy test in Buckley.” Faucher v. FEC, 928 F.2d 468,

472 (1st Cir. 1991). See also Maine Right to Life Comm., Inc.

v. FEC, 914 F.Supp. 8, 12 (D. Me. 1996).

More recently, the Fourth Circuit held the FECA can “be

applied consistently with the First Amendment only if it [is]

limited to expenditures for communications that literally

include words which in and of themselves advocate the

election or defeat of a candidate,” and found this principle so

clearly stated in Buckley and MCFL that it ordered the FEC to

pay the plaintiff’s attorneys’ fees. FEC v. Christian Action

Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997). After

reviewing twenty years of jurisprudence since Buckley, the

Court concluded that the advertisement in question

contained no express advocacy:

“From the foregoing discussion of Buckley and [Massachusetts Citizens for Life], it is indisputable that the Supreme Court limited the FEC’s regulatory authority to expenditures which, through explicit words, advocate the election or defeat of a specially identified

32

candidate…. In other words, the Court itself in Buckley confirmed that it intended the phrase ‘express advocacy’ simply as a shorthand for the ‘explicit words of advocacy of election or defeat’ ‘of a clearly identified candidate for federal office,’ which it had held earlier in the opinion where required in order to save the Act from constitutional infirmity.”

Id. at 1062 (italics in original).

The Eighth Circuit agreed that “Questions of intent and

effect … are to be excluded from the analysis, since a

speaker, in such circumstances, could not safely assume

how anything he might say would be understood by others.”

Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 969

(8th Cir. 1999). The Tenth Circuit and D.C. District Court

concurred and adopted a bright-line test as well. Citizens for

Responsible Gov’t State Political Action Comm. v. Davidson,

236 F.3d 1174, 1187 (10th Cir. 2000); FEC v. Christian

Coalition, 52 F.Supp. 2d 45, 63-64 (D.D.C. 1999). Circuit

courts continue to reiterate their earlier rulings. See

Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d

376, 387 (2d Cir. 2000); Perry v. Bartlett, 231 F.3d 155, 159

(4th Cir. 2000).

33

Most recently, the Fifth Circuit decided that even

though a bright-line test allows “individuals and

organizations to circumvent electoral regulations simply by

omitting from their communications the genre of words and

phrases that convey the same meaning as the words listed

in Buckley,” speakers nevertheless were entitled to a clear

rule so that their speech would not be chilled. Chamber of

Commerce of the USA v. Moore, 288 F3d 187, 195 (5th Cir.

2002). In Moore, the court held that the Chamber of

Commerce was entitled to declaratory relief halting the

investigation of the Mississippi Attorney General because the

Chamber’s ads did not use the words specified in Buckley.

Id. at 190-91, 196-99.

Only one circuit—the Ninth—may have deviated from

the “bright line” test, but that early case is so problematic

that it should be disregarded entirely. See FEC v. Furgatch,

807 F.2d 857 (9th Cir. 1987). As the Fourth Circuit

explained, Furgatch ignored MCFL’s reiteration of the

Buckley bright-line rule, even though MCFL was handed

down one month before Furgatch. Christian Action Network,

34

Inc. 110 F.3d at 1052 n.4. Moreover, Furgatch’s departure

from the bright-line rule may have been de minimus. Even

though the Ninth Circuit considered “context,” it still

required explicit words exhorting voters to take a course of

action. Id. at 1054. Minimal though it may be, all other

circuits have soundly rejected Furgatch.12 The Fourth Circuit

even ordered the Federal Election Commission to pay its

opponents’ attorneys’ fees for continuing to ignore Buckley’s

bright-line test, though Furgatch had been on the books for

ten years. Christian Action Network, Inc., 110 F.3d at 1064.

The issue has not been decided in Texas. The Texas

Supreme Court noted the possible split of authority, but did

not choose a side because the advertisement at issue used

the words listed in Buckley. Osterberg v. Peca, 12 S.W.3d

31, 52 (Tex. 2000).

The federal courts have spoken, and they have almost

unanimously enforced Buckley in a way that provides clear,

unmistakable rules for political speakers to follow. The issue

12 Even the Ninth Circuit itself has diminished the impact of Furgatch. “But a close reading of Furgatch indicates that we presumed express advocacy must contain some explicit words of advocacy.” California Pro-Life v. Getman, No. 02-15378, 2003 WL 21027288 (9th Cir. 2003). FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987).

35

advertisements distributed by TAB in the 2002 election cycle

did not expressly advocate for or against any candidate;

therefore, these ads are not subject to government

regulation. As a result, the State is not permitted to inquire

or prosecute this protected free speech. See, e.g., Moore,

288 F.3d at 195 (attorney general’s investigation barred by

bright line issue advocacy test).

3. Freedom of Association Protects Issue Advocacy

As Well

The Buckley Court did not merely rest its decision on

the free speech protections of the First Amendment; it also

founded its decision on the First Amendment’s protection of

the right to associate freely and anonymously. See NAACP v.

Alabama, 357 U.S. 449, 460-61 (1958). Freedom of

association particularly prevents the grand jury’s request for

information about TAB’s donors and members. TAB’s public

education issue advocacy campaign cannot in any way

justify the revelation of information about TAB’s donors and

members.

36

Though the Buckley Court first imposed its “express

advocacy” limitation in the context of overall caps on

expenditures, it then turned to FECA’s disclosure

requirements. The Court noted that “compelled disclosure,

in itself, can seriously infringe on privacy of association and

belief guaranteed by the First Amendment.” Buckley, 424

U.S. at 64. Though the appellees in Buckley argued that the

FECA deserved lesser scrutiny because it merely required

‘disclosure of the names of contributors,” the Court rejected

this contention. Id. at 65. “Group association is protected

because it enhances effective advocacy,” the Court retorted,

and “the right to join together for the advancement of beliefs

and ideas is diluted if it does not include the right to pool

money through contributions, for funds are often essential if

advocacy is to truly be optimally effective.” Id. at 65-66

(quotations and citations omitted). “The invasion of privacy

of belief may be just great when the information sought

concerns the giving and pending of money as when it

concerns the joining of organizations, for financial

transactions can reveal much about a person’s activities,

37

associations and beliefs.” Id. at 66 (quotations and citations

omitted). “The strict test established by NAACP v. Alabama

is necessary because compelled disclosure has the potential

for substantially infringing the exercise of First Amendment

rights.” Id.

In applying the strict scrutiny test to the statutory

disclosure provision, the Court observed that the

government had a compelling interest in providing

information about the sources of money spent on elections.

Id. at 66-68. Just as with the spending caps, however, the

statute had to be narrowed to avoid offending the First

Amendment. To that end, the Court imposed the same

“express advocacy” standard it had incorporated earlier in

order to avoid “reach[ing] groups engaged purely in issue

discussion.” Id. at 79. Thus, the critical right to freely

associate prevented the government from compelling the

disclosure of information about a group’s contributors if the

group did not “expressly advocate” for or against the

election of a clearly specified candidate through explicit

words.

38

Buckley’s freedom of association analysis echoes its

free speech analysis. Insofar as TAB engaged in “issue

advocacy,” the State cannot compel the disclosure of

information about TAB’s members and donors.

4. Though “Coordination” Provides an Exception, The State Produced No Evidence of Coordination

There is one exception to Buckley’s bright-line test:

where the speaker “coordinates” issue advocacy with the

candidate’s campaign.13 Though the State would have a

very hard time proving “coordination” under normal

circumstances, the State has fallen especially short here.

Because the State advances a garbled understanding of

“coordination,” it has not even legally invoked the doctrine

nor introduced any evidence to support it. Judge Lynch

erred by replacing his lone exception with a lesser standard.

“Coordination” has been part of First Amendment law

since Buckley. Though the Buckley Court drew a bright line

between express advocacy and issue advocacy, it

13 In the trial court, TAB urged that issue advocacy cannot be regulated under any circumstances, even under allegations of coordination. Relators based their argument on Colorado Republican Fed. Campaign Committee v. FEC, 518 U.S. 604 (1996). In that case, a total of four justices (in two pluralities of three) opined that issue advocacy could not be regulated even in light of possible coordination, id. at 628-29, 631, while a plurality of three justices declined to reach the question because it was not factually presented. Id. at 623.

39

nonetheless recognized that issue advocacy could be

regulated if “coordinated” with a campaign:

“The parties defending [the cap on expenditures] contend that it is necessary to prevent would-be contributors form avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate’s campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act … [This provision] prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions.”

Buckley, 424 U.S. at 46-47. The Court added that the

coordination exception was needed because “[t]he absence

of prearrangement and coordination of an expenditure with

the candidate or his agent not only undermines the value of

the expenditure of the candidate, but also alleviates the

danger that expenditures will be given as a quid pro quo for

improper commitments from the candidate.” Id. at 47.

Though “coordination” would seem to be an important

part of constitutional express advocacy doctrine, it has not

been litigated often, and the only case to promulgate a

40

“coordination” test is FEC v. Christian Coalition, 52 F.Supp.

2d 45 (D.D.C. 1999). In Christian Coalition, the court

decided whether “a corporation’s expenditures on voter

guides and get-out-the-vote telephone calls” were

coordinated “where the evidence shows, among other

things, that the corporation was privy to non-public

information about a campaign’s strategies and discussed the

corporation’s plans to make campaign-related expenditures

in advance with the campaign.” Id. at 86. Based on

Buckley, the Christian Coalition court “fully agree[d] that the

standard for coordination must be restrictive, limiting the

universe of cases triggering potential enforcement actions to

those situations in which the coordination is extensive

enough to make the potential for corruption through

legislative quid pro quo palpable without chilling protected

contact between candidates and corporations and unions.”

Id. at 88-89. To that end, the court implemented an

extremely strict test:

“[A]n expressive expenditure becomes “coordinated,” where the candidate or her agents can exercise control over, or where there has been substantial discussion or

41

negotiation between the campaign and the spender over, a communication’s: (1) contents; (2) timing; (3) location, mode, or intended audience (e.g., choice between newspaper or radio advertisements); or (4) “volume” (e.g., number of copies of printed materials or frequency of media spots). Substantial discussion or negotiation is such that the candidate and spender emerge as partners or joint venturers in the expressive expenditures, but the candidate and spender need not be equal partners.”

Id. at 92. Under this standard, the State must prove that the

candidate in the 2002 election had such control over TAB’s

issue ads that they were essentially “partners or joint

venturers.”

Nevertheless, the State has offered no evidence of

coordination, nor has it even alleged facts that would raise

the issue legally. The State claimed that coordination was

“obvious” through allegations that TAB cooperated with two

PACs: BACPAC and Texans for a Republican Majority PAC

(“TRMPAC”). See Appendix, Tab QQ at 66-69. Though the

State argued that this cooperation was “coordination,” and

went so far as to analyze this cooperation under the four-

part test in Christian Coalition, see Appendix, Tab QQ at 66-

69, the State offered no evidence of cooperation with a

42

candidate, as required by Buckley. Thus, the State has

presented no evidence that would support a grand jury

investigation into TAB’s issue advocacy. The State has

simply not invoked the doctrine of coordination.

The entire point of the “coordination” exception is that

“[t]he absence of prearrangement and coordination of an

expenditure with the candidate or his agent not only

undermines the value of the expenditure to the candidate,

but also alleviates the danger that expenditures will be given

as a quid pro quo for improper commitments from the

candidate.” Buckley, 424 U.S. at 47. This logic simply does

not carry over to PACs, which may be why no case has ever

held that “coordination” can exist between anyone other

than a political speaker and a candidate. See Buckley, 424

at 46-47 (coordination involves a candidate); Colorado

Republican Fed. Campaign Committee v. FEC, 518 U.S. 604,

619 (1996) (same); Christian Coalition, 52 F.Supp. 2d at 91-

92 (same). There is simply nothing that would alter the First

Amendment analysis set forth in Buckley.

43

Confronted with its misunderstanding, the State

contended that evidence of “coordination” between TAB and

PACs was relevant because “the Texas Election Code treats

candidates and PACs the same.” See Appendix, Tab QQ at

68. Two flaws cleave the State’s argument. First, the Texas

Election Code does not treat candidates and PACs “the

same.” Though the definition of “campaign contribution”

may include both candidates and PACs, PACs are not treated

like candidates in campaign expenditures nor in any other

sense. Nothing in the Election Code prevents PACs and

corporations from conferring or even from reaching

agreement on strategy. The State simply cannot support its

conclusory claim that candidates and PACs can be equate

under the Texas Election Code, much less that they can be

equated in any sense meaningful to the First Amendment.

Second, and even more importantly, the content of the

Texas Election Code doesn’t matter for “coordination.”

Though the Buckley Court may have originally looked to the

concept of coordination in a provision of the Federal Election

Campaign Act, the Court nevertheless incorporated it as part

44

of its constitutional doctrine. See Christian Coalition, 52

F.Supp. 2d at 85; Colorado Republican, 518 U.S. at 617

(plurality) (“the constitutionally significant fact … is the lack

of coordination between the candidate and the source of

expenditure.”). Simply put, the Buckley Court held that the

First Amendment protects issue advocacy that is not

controlled by a candidate. That principle of constitutional

law no longer depends on the FECA, nor should the terms of

the Texas Election Code affect that ruling.14

Though the doctrine of coordination carries with it the

potential for complex factual inquiries, those problems are

absent here because the State utterly failed to advance any

evidence supporting coordination with a candidate. The

State points to TAB’s communications with PACs, but those

communications are both proper and irrelevant to the First

Amendment analysis. There is no fact question here; the

State failed to offer any evidence that would support a claim

14 The State’s argument is particularly flawed in light of the origin of the “coordination” doctrine. Under the FECA, contributions to candidates were strictly capped. If expenditures were unrestricted, candidates could evade the contribution caps by persuading individuals to pay the candidate’s bills directly instead of donating that money to the candidate. Thus, the statute filled the gap by treating an expenditure as a contribution if “coordinated” with the candidate. See Buckley, 424 U.S. at 46-47. Texas does not cap individuals’ contributions to a legislative candidate. Tex. Elec. Code § 253.061-062. Thus, the very situation that gave rise to the “coordination” portion of FECA does not even exist in Texas.

45

of “coordination.” This Court need not take TAB’s word for

it; the State has essentially conceded the point.15

5. Judge Lynch Failed To Enforce These Rules

In his opinion, Judge Lynch sidestepped the entire issue

of issue advocacy. See Appendix, Tab PP at 3-4. This was

clearly wrong because issue advocacy is protected

absolutely from the investigatory powers of the State. See

Moore, 288 F.3d at 190, 195-96. TAB avoided express

advocacy, and the State did not allege that TAB coordinated

with a benefited candidate. TAB is therefore entitled to First

Amendment protection against the grand jury subpoenas

and questioning. Judge Lynch’s attempt to implement a

lower standard is untenable in light of Moore.

Judge Lynch then tired to ameliorate the harsh effects

of his refusal to enforce the First Amendment, but his efforts

did not relieve the problem. First, he protected the names of

non-corporate TAB members and donors, but did not extend

that privilege to corporate members. See Appendix, Tab PP 15 Not only has the State introduced no evidence of coordination, but it has also failed to legally invoke the doctrine or allege facts that would permit the doctrine to operate. The State thus fails the sort of threshold legal sufficiency challenge contemplated in FEC v. Christian Coalition, 52 F.Supp. 2d at 89 n.52.

46

at 6. That is an untenable distinction so long as the speaker

avoids express advocacy, see Bellotti, 435 U.S. at 780-84,

upon which Judge Lynch refused to rule.

Second, Judge Lynch refused to protect non-member

donors to the extent he protected members. See id. This is

also an untenable distinction; if the speech is protected, it

protects both members and donors. Moreover, freedom of

association (discussed below) protects both donors and

members of an organization. See, e.g., Buckley, 424 U.S. at

66; St. German of Alaska Eastern Orthodox Catholic Church

v. United States, 840 F.2d 1082, 1094 (2nd Cir. 1988).

Third, Judge Lynch allowed the State to make an in

camera showing of relevance with regard to those corporate

members. This reverses the proper application of in camera

protections, because here the party seeking to destroy the

privilege has exclusive access to the contested information.

There is no justification for this unfair advantage offered to

the State.

Fourth, Judge Lynch concealed (at least temporarily)

the names of the corporate members, but nevertheless

47

permitted complete access to all other information about

those members. Free speech and freedom of association

extend beyond the names of the members and protect the

private information of TAB as well. See, e.g., Buckley, 424

U.S. at 66; Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978);

Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972).

Finally, Judge Lynch permitted the State to obtain donor

and member information “inadvertently,” which is simply

overbroad. This information is protected by the First

Amendment, regardless of whether disclosure is inadvertent

or purposeful.16

6. The Grand Jury Cannot Inquire Into Issue Advocacy

If Buckley stands for anything, it stands for the

proposition that political speakers are entitled to clearly

know the rules so that they will know what types of speech

will expose them to harassment by the government. The

Grand Jury Investigation represents exactly the kind of

intrusion into protected political speech that Buckley was

16 For example, if the State seeks to discover donor information by subpoenaing bank account information, Judge Lynch’s order allowing “inadvertent” discovery can be manipulated by the prosecutors to achieve indirectly that which they would be forbidden from obtaining directly.

48

trying to prevent. The advertisements meet the clear,

unmistakable standards for issue advocacy, and thus cannot

be regulated or investigated by the State. There can be no

exception to this rule because the district attorney offered

no evidence supporting an allegation of “coordination” with

a candidate. Accordingly, all matters pertaining to the issue

advocacy engaged in by TAB are shielded from this

impermissible investigation. This protection extends beyond

the advertisements themselves, and covers all non-public

information regarding the production of those

advertisements, including information about TAB’s members

and donors.

Notwithstanding these principles, Judge Lynch refused

to address the First Amendment standards arising from

Buckley v. Valeo. This decision is erroneous in light of

Buckley’s broad protections of political speech, which

absolutely prevent regulation and investigation of issue

advocacy. See Moore, 288 F.3d at 190, 195-96.

7. TAB’s Members and Donors Are Protected by the First Amendment

49

It is beyond debate that freedom to engage in

association for the advancement of beliefs and ideas is an

inseparable aspect of the liberty assured by the Due Process

Clause of the Fourteenth Amendment, which embraces

freedom of speech. See NAACP v. Alabama, 357 U.S. 449,

460-462. The United States Supreme Court has recognized

that inherent in this constitutional right of association is the

right to privacy in one’s particular chosen associations. See

id.

The freedom of association aspect of this matter arises

in the context of one’s right to freely associate for the

“purpose of advancing ideas and airing grievances.” See In

re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d at

375. This right extends to members and donors of

organizations or groups. See NAACP, 357 U.S. at 460-461;

Bates, 361 U.S at 522-523; In re Bay Area, 982 S.W. 2d at

375. The Supreme Court has recognized the vital

relationship between freedom to associate and privacy in

one's associations. See NAACP, 357 U.S. at 460-461.

50

Courts have recognized that compelled disclosure of

the identities of an organization's members or contributors

may have a chilling effect on the organization's contributors

as well as on the organization's own activity. See Buckley,

424 U.S. at 66-68. Therefore, the First Amendment requires

that a compelling state interest be shown before a court may

order disclosure of membership in an organization engaged

in the advocacy of particular beliefs. See In re Bay Area

Citizens Against Lawsuit Abuse, 982 S.W.2d at 375-377.

The Courts have set out the following test in

determining whether an organization may be compelled to

disclose member and donor information. First, the

organization must make a prima facie case that their First

Amendment right will be burdened. The Texas Supreme

Court has required a “light” showing by the organization.

See id. at 376. Next, the burden shifts to the State, who

must demonstrate that the information is “substantially

related to a compelling state interest.” See id. at 378.

However, not only must the information be substantially

related to a compelling state interest, when a law burdens

51

core political speech, it must also be narrowly tailored to

serve the particular compelling state interest. See First

National Bank of Boston v. Bellotti , 435 U.S. 765, 786-787

(1978); see also Doe v. State of Texas , No. 254-02, 2003 WL

21077961

(Tex. Crim. App. May 14, 2003).

TAB has met their light burden by showing that

disclosure of members’ and contributors’ names will subject

those individuals to harassment, threats and reprisals.

Conversely, the State has failed to show that this information

is substantially related to a governmental interest or that the

statute is narrowly tailored.

B. Information About Members and Donors Is Protected by Freedom of Association

As discussed above, the issue ads in the 2002 general

election are shielded from grand jury investigation. This

does not end the case, unfortunately, because the scope of

the grand jury’s investigation is not limited to TAB’s public

education issue advocacy. The grand jury also seeks to

investigate the State’s allegations that TAB made improper

52

“in kind” contributions to BACPAC and were used for express

advocacy. The grand jury subpoenaed information about

TAB’s member and donors based on mere speculation that

the donors might be “culpable” for something, regardless of

whether TAB committed any crimes or whether TAB’s actions

were protected. The First Amendment’s freedom of

association protects that member and donor information.

The grand jury has insufficient justification for piercing the

freedom of association enjoyed by TAB and Applicants.

1. TAB and BACPAC Have Made Their Prima Facie Case For Freedom of Association

Freedom of association for the purpose of advancing

ideas and airing grievances is a fundamental liberty

guaranteed by the First Amendment. In re Bay Area Citizens

Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex. 1998).

This protection extends to the names of an organization’s

members as well as to other critical information about the

workings of the organization. See, e.g., Ealy v. Littlejohn,

569 F.2d 219 (5th Cir. 1978); Bursey v. United States, 466

F.2d 1059 (9th Cir. 1972). It extends both to members of an

53

organization and to those that support it through donations.

See, e.g., Buckley, 424 U.S. at 66; St. German of Alaska

Eastern Orthodox Catholic Church v. United States, 840 F.2d

1082, 1094 (2nd Cir. 1988). The information sought by the

grand jury subpoenas invades this protected domain.

Nevertheless, TAB, BACPAC and the Applicants bear the

initial burden to make a prima facie showing that the trial

court’s orders will burden First Amendment rights. In re Bay

Area Citizens Against Lawsuit Abuse, 982 S.W.2d at 375

(Tex. 1998) (citing Buckley, 24 U.S. at 74); New York State

Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1355 (2nd Cir.

1989); Brock v. Local 375, Plumbers Int’l Union, 860 F.2d

346, 349-50 (9th Cir. 1988). The United States Supreme

Court has recognized that “unduly strict requirements of

proof could impose a heavy burden” and that a party “must

be allowed sufficient consideration of [its] claim.” See In re

Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d at 375

(Tex. 1998) (citing Buckley, 24 U.S. at 74). “The evidence

offered need show only a reasonable probability that the

compelled disclosure of a party’s contributors’ names will

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subject them to threats, harassment, or reprisals from either

governmental officials or private parties.” Id. For that

reason, the Texas Supreme Court has described this prima

facie showing as “light.” Id. (quoting Terry, 886 F.2d at 1355

(“[I]n making out a prima facie case of harm the burden is

light.”)). TAB, BACPAC and the Applicants have carried their

burden.

A prima facie showing was made by explaining that the

actions of several civil plaintiffs and the district attorney,

along with the public harangues of the Austin American-

Statesman, would result in legal and social harassment

against the members and donors of TAB. See Appendix, Tab

VV at Exhibit A. Moreover, it is the nature of political

advocacy that the loss of anonymity could seriously impair

those members’ and donors’ ability to engage in truly

bipartisan political disclosure and lobbying. This evidence

satisfied the “light” showing necessary to place the burden

on the Travis County District Attorney to justify the grand

jury’s investigation. The trial court agreed and held that the

threats of harassment and the very existence of a grand jury

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proceeding satisfied this requirement. See Appendix, Tab PP

at 2.

2. The State Must Show That The Information Sought is “Substantially Related” to a “Compelling Government Interest”

Once the affected party has made its “light” prima facie

case for harassment, the part seeking disclosure must

demonstrate that the information is “substantially related to

a compelling government interest.” In re Bay Area Citizens

Against Lawsuit Abuse, 982 S.W.2d at 375 (Tex. 1998). This

showing is “an essential prerequisite to the validity of an

investigation which intrudes into the area of constitutionally

protected” First Amendment rights. Gibson v. Florida

Legislative Investigation Committee, 372 U.S. 539, 546

(1963). Thus, this Court must examine whether the State

has offered a “compelling government interest” that is

“substantially related” to the information about members

and donors.

This issue was central to the Supreme Court’s opinion in

Branzburg v. Hayes, 408 U.S. 665 (1972). In that case, news

reporters argued that the First Amendment protected them

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from grand jury supoenas compelling them to reveal

confidential information. Id. at 667-79. The Branzburg Court

found that the grand jury’s role in investigating crimes was a

“compelling government interest.” Id. at 700-01. In

deciding whether the testimony was “substantially related”

to that interest, however, the Court pointed out that news

reporters have no First Amendment privilege to conceal their

sources. At best, the “reporters privilege” comes from

statutory law. Id. at 684-92. Accordingly, the “public

interest in law enforcement and in ensuring effective grand

jury proceedings is []sufficient to override the consequential,

but uncertain, burden on news gathering” imposed by a

grand jury investigation. Id. at 690. Though Branzburg

counsels that the State interest in grand jury investigations

may be “compelling,” it offers no guidance for the

“substantially related” test to be applied here. Freedom of

association is well-established constitutional law, and thus

receives greater deference than the reporters’ privilege.

This Circuit was able to retreat from this uncertainty

and apply a clear rule. In Ealy v. Littlejohn, 569 F.2d 219

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(5th Cir. 1978), a grand jury sought to compel the testimony

of various members of an African-American organization

regarding a leaflet that accused several law enforcement

officers with wrongdoing. Id. at 223. The grand jury sought

information as to whether any member had personal

knowledge of the leaflet, and also questioned the witnesses

about the internal and financial operations and activities of

their organization. Id. The Ealy court looked to Branzburg to

help balance the grand jury’s “broad powers” with “the

rights to associate and speak freely.” Id. at 226. Though the

appellants had a more robust constitutional argument than

did the reporter in Branzburg, the Ealy court avoided that

issue and relied instead on certain clear limitations on grand

jury power found in Branzburg. Id. Grand juries clearly

cannot “prob[e] at will and without relation to existing

need,” nor could they “force wholesale disclosure of names

and organizational affiliations for the prose that was not

germane to the determination of whether crime has been

committed,” nor could the grand jury engage in bad faith

investigation. Id. at 227. Because the “First Amendment

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can serve as a limitation on the power of the grand jury to

interfere with a witness’ freedoms of association and

expression,” grand juries were forbidden to engage in

“fishing expedition[s]” for information irrelevant to the crime

under investigation. Id. The grand jury in Ealy had no

reason to inquire about the leaflet, so the investigation was

in bad faith and thus barred. Id. at 230.

3. Information About Members and Donors is Not Substantially Related to the State’s

Justification

Under the clear rules set out in Ealy, Applicants are

entitled to a writ of habeas corpus because the grand jury is

engaging in nothing more than a “fishing expedition.” The

State has offered several flimsy excuses to claim that the

grand jury is truly investigating crime. But in each case, the

allegations are so unsubstantiated that the grand jury has no

genuine reason to investigate further, especially not to the

far-more-attenuated information about TAB’s members and

donors. Because the State offered no evidence connecting

these acts to their claim that TAB’s members and donors

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might have contributed money with the intent to break the

law. This simply will not suffice under Ealy.

First, the State relies on a $1,400 error that cannot

even be attributed to the TAB, much less to members and

donors. The State strongly emphasized the fact that TAB

paid for a benefit that accrued to BACPAC, which the State

characterizes as a criminal “in-kind campaign contribution”

from a corporation to a PAC. But the evidence adduced at

the hearing cast the State’s allegation in a very different

light. TAB board member and public relations consultant

Chuck McDonald asked BACPAC to pay him $1,000, which

was his good faith estimate of the value of the work he had

done for BACPAC during the election. See Appendix, Tab

WW. BACPAC paid this sum as requested. Later, McDonald

realized that he should have charged BACPAC $2,400 for his

work and expenses. Id. Instead, the additional sum was

accidentally included in an oral request for payment he

made to TAB. Id. TAB paid that sum before receiving the

invoice, and thus had no idea that BACPAC expenses were

included. See Appendix, Tab QQ at 14-18. Thus, the State’s

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allegation of criminal malfeasance boils down to a claim that

TAB paid $1,400 in good faith that it later discovered should

have been paid by BACPAC. When this information was

brought to its attention, TAB swiftly corrected the error. Id.

These allegations do not constitute evidence of criminal

activity, and do not in any way justify the grand jury’s further

investigation of TAB or its more-distant members and

donors.

Second, the State alleged that TAB paid for the artwork

used in an express advocacy mailer that was ultimately used

by the Texans for a Republican Majority PAC (“TRMPAC”).

The cost of this artwork was included in the bill that Chuck

McDonald erroneously sent to TAB, and thus was paid by

TAB with no knowledge that it constituted work for a PAC.

Once this error was discovered, BACPAC quickly corrected it

by reimbursing TAB. See Appendix, Tab QQ at 18. This had

the effect of making the artwork a donation from BACPAC to

TRMPAC, which is completely proper under the Election

Code. Again, the State failed to allege activity that was

criminal in nature.

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Third, the State argued that TAB made an improper “in

kind” contribution of salaries to BACPAC because TAB

employees also did work for BACPAC without being paid by

BACPAC. This is also much ado about nothing. Corporations

are expressly permitted to pay the administrative expenses

of a PAC. See Tex. Elec. Code § 253.200. Staff salaries are

an administrative expense unless the staff is “compensated

for engaging in political activities,” which was not the case

here. See Tex. Ethics Op. 132 (1993). The salaries of TAB

employees were due and owing regardless of any work they

did for BACPAC. See Appendix, Tab QQ at 50-51. TAB did

not make an “in-kind contribution” to BACPAC by paying

those salaries. Once again, there is no criminal conduct.

Fourth, the State claimed that TAB paid Bill Hammond’s

travel expense in connection with a press tour sponsored by

BACPAC, but that allegation was immediately shown to be

false. The full amount of those expenses--$874.19--was

included in BACPAC’s expenditure report. See Appendix, Tab

WW. Though the report did not explain the purpose of the

$874.19, that minor lapse of explanatory clarity was not

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criminal, and cannot justify a grand jury investigation into

TAB’s activities.

Finally, in addition to the public education issue

advocacy during the 2002 general election, TAB also sent

communications during the 2002 primary that expressly

urged the election or defeat of certain candidates.

Nevertheless, the grand jury cannot investigate those

communications because they were not sent in violation of

any law. Tex. Elec. Code § 253.098 permits corporations to

engage in express advocacy with their members. The

primary mailers were sent to TAB’s members. See

Appendix, Tab QQ at Exhibit 5.17 Thus, there is simply

nothing for the grand jury to investigate. Just as with the

issue advocacy, the grand jury’s subpoenas and questions

should be quashed insofar as they pertain to the mailers

sent in the 2002 primary.

Though these allegations are weak, the connection to

the members and donors is even weaker. None of these

allegations of non-criminal activity suggest criminal

17 Importantly, the State introduced no evidence contradicting this fact.

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wrongdoing by TAB’s members and donors, nor has the

State claimed that the members and donors were directly

involved in those activities. Instead, the State suggested

that the grand jury should be able to investigate TAB’s

members and donors because some of them may have

contributed to TAB with the desire that TAB should violate

the Election Code, which would be a separate Election Code

violation. See Appendix, QQ at 58-59. They urge this

connection even if TAB didn’t actually break the law, and

even with regard to communications that are protected issue

advocacy. Id. This theory amounts to nothing more than

idle speculation, with absolutely no substantial relationship

to the grand jury’s purpose. But without any information

indicating that the members and donors were connected to

those activities, the State falls into the territory forbidden by

Ealy. The grand jury’s requests are simply not substantially

connected to their interest in investigating the incidents set

forth by the State.

4. Judge Lynch Failed to Apply Ealy

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Ealy created a clear rule that a grand jury cannot

engage in a “fishing expedition” by demanding protected

information not genuinely related to the criminal

investigation at hand. But Judge Lynch did not apply this

clear rule. Instead of applying the cases that explained the

First Amendment’s greater protections in the grand jury

context, see Appendix, Tab PP at 5, Judge Lynch applied the

general rule applicable to all grand jury investigations

outside the First Amendment. That is, he asked whether

there was actual evidence … of a political witch hunt or

baseless investigation.” Id. at 4 (citing Ex parte Jennings,

240 S.W. 942 (Tex. Crim. App. 1922)). As explained above,

Ealy and Branzburg require a higher showing of relevance.

The judge’s error was multiplied in the next point of the

opinion. Instead of separately analyzing the State’s

allegations of misconduct, which would have revealed that

they failed to justify any investigation of the members or

donors, Judge Lynch instead stirred everything into one pot

that “involv[ed] a theory of cooperation and coordination

between groups and individuals.” See Appendix, Tab PP at 5.

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In light of the frivolous nature of those accusations

(especially the legally erroneous nature of the State’s

“coordination” argument), the district court’s willingness to

overlook the State’s lack of evidence was a clear failure to

apply clear law. Judge Lynch even admitted that the State

had failed to make its case: he noted that the State “offered,

at a minimum, a plausible explanation for most information

sought.” Id. He papered over the evidentiary gap by

continuing to note that the State “has demonstrated that a

good faith investigation is in progress.” Id. The test is not

whether the investigation is in good faith; the

Ealy/Branzburg test is whether the information sought is

truly related to the government’s allegations of wrongdoing.

Judge Lynch even reiterated this omission when he refused

to allow disclosure of the names of corporate members and

member-donors until the State “makes a record … showing

that the names are relevant to specific possible criminal

activity.” Id. at 6. This was tantamount to an admission that

the State had failed to make its case even though it had two

hearings and pounds of paper in which to do it.

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Nevertheless, despite this admitted failing, Judge Lynch

allowed the grand jury to seek all information about those

members and donors other than their names. Id. He even

pardoned any “inadvertent” disclosure of those names

before the fact, thus inviting the State to carefully craft its

questions. Id. Freedom of association protects all the

information about the members and donors, see Ealy, 569

F.2d at 230, and thus Judge Lynch should not have treated

the names differently than the other information.

The grand jury went on a “fishing expedition” when it

asked for information about TAB’s members and donors.

The State’s allegations of misconduct fail to even raise an

inference of criminal activity on the part of TAB, much less

on the part of their members and donors. The State’s

attempt to garner information about TAB’s membership is

based on nothing more than idle speculation, which must be

rejected. Though the grand jury’s investigative powers are

broad, they are now so broad that they can violate the First

Amendment without any suggestion of wrongdoing.

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5. TAB’s Members and Donors Are Protected by the First Amendment

It is beyond debate that freedom to engage in

association for the advancement of beliefs and ideas is an

inseparable aspect of the liberty assured by the Due Process

Clause of the Fourteenth Amendment, which embraces

freedom of speech. See NAACP, 357 U.S. 460-462. The

Supreme Court of the United States of America has

recognized that inherent in this constitutional right of

association is the right to privacy in one’s particular chosen

associations. See id. The documents and testimony that the

grand jury is requesting would necessarily disclose who

TAB’s members are, and which of these members

contributed to the voter education drive. This would violate

the right of TAB and its members to freely associate under

the First Amendment. The grand jury subpoenas and

questions overreach their bounds and clearly violate the First

Amendment. The Grand Jury Investigation would necessarily

disclose who TAB’s members are, and which of these

members contributed to the voter education drive. This

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would violate the right of TAB and its members to freely

associate under the First Amendment. The grand jury

subpoenas overreach their bounds and clearly violate the

First Amendment. The district court erred in failing to quash

the various subpoenas and by holding Applicants in

contempt and ordering them to jail.

C. Conclusion

The Applicants refusal to testify was the reliance on

clear and indisputable law stating that political speech and

freedom of association must be insulated so long as the

speaker does not venture into express advocacy. Applicants

also relied on clear law stating that the information sought

by a grand jury must be substantially related to criminal

investigation. Under this clear law, the Applicants should

not have been ordered to answer the questions before the

grand jury, and should not have been held in contempt or

ordered to jail.

Prayer

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For the above reasons, Applicants ask the Court to

issue a writ of habeas corpus.

DATED: June 5, 2003.

Respectfully Submitted,

ANDY TAYLOR & ASSOCIATES, P.C.

BY:________________________________Andy TaylorState Bar No. 19727600Amanda PetersonState Bar No. 24032953405 Main Street, Suite 200Houston, Texas 77002713-222-1817 (telephone)713-222-1855 (facsimile)

MINTON BURTON FOSTER & COLLINS, P.C.

Roy Q. MintonState Bar No. 14196000Samuel E. BassettState Bar No. 018941001100 GuadalupeAustin, Texas 78701512-472-0144 (telephone)512-479-8315 (facsimile)

ATTORNEYS FOR APPLICANTS,JACK CAMPBELL AND CATHY DEWITT

CERTIFICATE OF SERVICE

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By affixing my signature above, I , Andy Taylor, hereby certify that a true and correct copy of the above Applicants Original Petition for Writ of Habeas Corpus has been delivered via hand delivery to the below on the 5th day of June, 2003.

C. Bryan Case The Honorable Mike Lynch

Assistant District Attorney 167th Judicial District Court

509 West 11th Street 509 West 11th Street

Austin, Texas 78701 Austin, Texas 78701

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