As a nonprofit 501(c)4 corporation, King Street Patriots (KSP) should be allowed to engage in electioneering without disclosing donors or registering as a political committee, and Texas laws to the contrary are unconstitutional, said the Indiana attorney who put together the pivotal U.S. Supreme Court Citizens United campaign finance case. He placed the burden of enforcing regulations squarely on the Internal Revenue Service.

“(KSP opponents) are trying use Texas law to shut up their opponents, to throw them in jail for talking about issues,” said James Bopp Jr., general counsel for the James Madison Center for Free Speech.

Houston tea party spinoff KSP and its 501(c)3 initiative KSP/True the Vote are the subjects of a state ethics complaint by nonprofit Texans for Public Justice and a lawsuit by the Texas Democratic Party, both alleging KSP has broken state prohibitions against corporate campaign contributions — and that it should be registered as a state political committee and have to reveal its donors’ identities.

“The Supreme Court has consistently held that you cannot require an organization to be a PAC unless its major purpose is to be involved in elections. A c4 lobby group’s primary purpose is to educate and lobby, rather than participate in elections,” Bopp said. “Otherwise the IRS wouldn’t let it be a c4. They would say it’s a 527.”

KSP has regularly hosted forums for GOP candidates without extending invitations to opponents from other parties, the Texas Independent has previously reported.

“The incumbent politicians have not given up trying to drive citizens out of the democratic process by using campaign finance laws, even though the Supreme Court has been very vigorous in applying First Amendment protections in this area. And this is a classic example that we’re talking about right now,” he said.

Bopp, who’s currently challenging campaign laws in at least a dozen other states, said it’s clear to him that Texas laws run afoul of the First Amendment when they require 501(c)4 nonprofit corporations to register separate political committees to report coordinated campaign expenditures.

“I’ve won this numerous times,” Bopp said.

Legal precedence for this exists in Supreme Court decisions prior to Citizens United (2010), he said, citing earlier landmark cases such as Buckley vs. Vallejo (1976), FEC vs. Massachusetts Citizens for Life (1984) and McConnell vs. FEC (2003). Bopp put the Citizens United case together, argued it in lower courts and got the Supreme Court to accept the case, though he did not make arguments in front of the high court.

Basically, the Citizens United decision enabled corporate entities to spend unlimited money advocating for or against political candidates, as long as they don’t coordinate those expenditures with the campaigns. While the ruling did not address in-kind donations, such as hosting one-sided candidate forums, the case may have cleared the way for further challenges to remaining restrictions on corporate political contributions.

“Particularly now that the last barrier on many independent expenditures has been lifted by Citizens United — it was the last one in a chain — there will be a lot more attention paid to exactly what constitutes a coordinated expenditure,” said Justin Levitt, associate professor of law at Loyola School of Law.

In Bopp’s reasoning, the underlying assumption is that KSP is abiding by federal regulations on 501(c)4 nonprofits — namely that the organization’s primary purpose is not electioneering, generally interpreted as meaning the organization spends less than 50 percent of its resources trying to influence election outcomes for or against particular candidates.

As with national Democratic allegations concerning the Karl Rove-linked American Crossroads GPS, also a 501(c)4, the responsibility for discovering whether KSP is devoting the majority of its funds to electioneering would belong to the IRS, whose investigations are generally not very swift or public. There are also questions about how to measure the percent of an organization’s political activity.

“Tax guidance has been remarkably hazy concerning the time frame you look at to determine an organization’s primary purpose,” Levitt said. “It’s not like you can say ‘in the last year’ or ‘in the next year’ what has it spent its time doing. Tax guidance has been much more about fact-finding. Throw everything in the pot and see what it looks like its primary purpose is.”

Under pressure from the Texas Democratic Party, KSP recently released its financial records, which are now posted on its website. Since March, the organization has raised about $87,000 from “general meeting donations,” according to the records, which don’t reveal the amount of individual contributions or identities of donors. Much of that sum came in the form of three deposits: $15,201 on April 20, $12,150 on June 1 and $7,003 on Oct. 7.

“As anyone can see, there has only been $87,000 in donations over the group’s entire existence. This shows what a joke of a lawsuit this is,” said Kelly Shackleford, president/CEO of the Liberty Institute, KSP’s legal counsel.

Meanwhile TDP general counsel Chad Dunn said, “It strains belief that this group is saying they raised $87,000 by passing the hat at their meetings.”

Dunn said the records are sufficient evidence to determine that KSP is violating the law, and that the Democrats are pressing forward with their suit involving KSP as well as the Green Party of Texas. TDP wants both of those entities to release information on sources of donations.

TDP and Harris County Democrats have also taken legal action against Harris County voter registrar Leo Vasquez, for allegedly violating terms of an earlier settlement when he provided voter registration records to KSP, which challenged thousands of the applications connected to voter registration group Houston Votes. Democrats say Harris County officials gave them an estimate of $1.5 million for a similar public records request; however, Harris County officials said KSP’s request was vastly different, estimating KSP’s bill at less than $1,000.

KSP’s transactions report lists two cash expenses for “Public Data,” one on Sept. 20 and one on Oct. 12, each for $81.19. The items don’t list a vendor or a description of the public data purchased.

Meanwhile, nonprofit Texans Together Education Fund and its Houston Votes leader Fred Lewis have sued KSP and its leader Catherine Engelbrecht for defamation, saying Engelbrecht linked Houston Votes to the New Black Panthers. KSP legal counsel responded that corporations can’t sue individuals in Texas.

Additionally, Democrats have accused KSP/TTV-trained poll watchers of being involved in reports of voter intimidation at Harris County polling places. The U.S. Department of Justice is investigating those claims.

KSP has posted on its website an email from KSP/TTV attorney J. Christian Adams to T. Christian Herren, chief of the Voting Rights Section of the DOJ’s Civil Rights Division. Adams invites Herren to send a DOJ lead attorney to KSP/TTV’s final briefings of poll watchers on Monday, and also to have the DOJ attorney address the poll watchers if desired.

If the DOJ had not planned on sending its own observers, Adams urged Herren to do so on behalf of KSP/TTV.

“They believe that the presence of federal observers in the polling place will serve to mitigate some of the more threatening harassment directed toward poll watchers. The poll watchers trained by True the Vote are often elderly retirees. They have endured a variety of insults and discourteous behavior from a variety of sources. As you know, a federal presence tends to keep everyone on their best behavior,” Adams said in the letter, also asking Herren to deploy Community Relations Services staff due to “racially incendiary charges” directed at poll watchers.

U.S. Rep. Sheila Jackson Lee, whom KSP has accused of campaigning right outside polling places, has also called for DOJ observers, according to Politico.

Bopp dismissed the allegations of voter intimidation reported in Harris County in the first days of early voting, saying Democrats are attacking KSP because they want to hurt Republicans.

“The Democrats are all about shutting up their opponents because they have no message. They have nothing they are for that is popular with the American peoples, so their only recourse is lies,” he said.

Read the Texas Independent for previous reporting on KSP.

[Image from kingstreetpatriots.org]