IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-529-09 through PD-545-09
Ex parte JAMES W. ELLIS and JOHN D. COLYANDRO, Appellants
ON APPELLANT’S AND STATE’S
PETITIONS FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY
K ELLER, P.J., delivered the opinion of the unanimous Court.
This case involves constitutional challenges to the money laundering statute and to certain
Election Code provisions relating to corporate contributions. With respect to the money laundering
statute, we determine that the court of appeals inappropriately resolved issues that are not cognizable
in a pretrial habeas proceeding. With respect to the Election Code provisions, we determine that the
statutes are not facially unconstitutional. Consequently, we sustain the State’s first ground for
review and otherwise affirm the judgment of the court of appeals.
I. BACKGROUND
The State filed a number of indictments against Colyandro for election code violations.
These indictments charged that, in 2002, on behalf of the Texans for Republican Majority Political
ELLIS & COLYANDRO — 2
Action Committee (TRMPAC), Colyandro knowingly accepted from several corporations political
contributions in various dollar amounts that he knew were contributed in violation of Chapter 253
of the Election Code. The State also filed one indictment against Colyandro for money laundering
and one indictment against Ellis for money laundering. The money laundering indictments alleged
that the above contributions were transferred to the Republican National Committee (RNC) via a
$190,000 check made payable to the Republican National State Elections Committee (RNSEC) that
Colyandro signed and delivered to Ellis and that Ellis delivered to the RNC. The State later filed
re-indictments of the money laundering charges. The re-indictments omitted any references to a
“check,” instead alleging the “transfer of funds of the value of $190,000” from TRMPAC to the
RNSEC.
Ellis and Colyandro filed pretrial habeas corpus applications, which the trial court denied.
On appeal, they argued that the Election Code provisions governing political contributions were
unconstitutionally vague and overbroad with respect to protected First Amendment expression. They
further argued that the money laundering statute was unconstitutionally vague if it were interpreted
to apply to checks or to a transaction involving something other than cash.
Drawing a sharp distinction between contributions and expenditures, the court of appeals held
that laws governing contributions were not subject to “strict scrutiny” but were reviewed under a less
rigorous test of being “closely drawn” to meet a “sufficiently important interest.”1 Responding to
the appellants’ overbreadth argument, the court of appeals rejected the contention that Supreme
Court cases prohibiting restrictions on expenditures had any application to the Texas Election Code
1
Ex parte Ellis, 279 S.W.3d 1, 19 (Tex. App.–Austin 2008).
ELLIS & COLYANDRO — 3
provisions that restricted contributions.2 Moreover, the court of appeals held that the appellants
failed to demonstrate that the contribution restrictions reached a substantial amount of protected
conduct.3 With respect to the appellants’ vagueness claims, the court of appeals concluded that the
Election Code provisions, though broad and complex, were not so indefinite as to deprive a person
of ordinary intelligence of the ability to understand what was prohibited.4 The court held that “a
person of ordinary intelligence is capable of properly designating whether his or her contribution is
intended to support or oppose a measure (lawful), be used solely for administrative expenses
(lawful), be used for unregulated expenditures (lawful), or be used [] ‘in connection with’ a
candidate’s campaign (unlawful).”5 The court of appeals explained that “the statute places burdens
on those making and accepting corporate contributions to designate and to ascertain the purpose of
a contribution before giving it or using it in a campaign for elective office.”6
The court of appeals answered the contention that the money laundering statute was
unconstitutionally vague if it applied to checks by holding that the statute did not apply to checks.7
Whether the statute encompassed checks depended on whether checks were included in the
2
Id. at 20.
3
Id. at 20-21.
4
Id. at 21-23.
5
Id. at 22.
6
Id.
7
Id. at 23-30.
ELLIS & COLYANDRO — 4
definition of “funds.”8 The statute provided that the term “funds” includes a list of specific items.9
According to the court of appeals, the term “includes” meant that the list was not exclusive.10 But,
relying upon the principle of ejusdem generis, the court held that the term “funds” could only
encompass items that were of the “same kind, class, or nature” as the items in the list.11 The court
of appeals then observed that all the items in the list were forms of cash or cash equivalents.12 The
court of appeals held that checks were unlike these items because a check is not guaranteed, and
therefore does not function as cash or a cash equivalent:
Coin, currency, cash, or items that function as cash equivalents are, themselves,
payment. By contrast, a check is a promise or commitment to make payment when
the check is later presented for payment. Accordingly, payment by check that is not
guaranteed in some way, such as a cashier’s check or teller’s check, is not payment
in the same sense as payment by cash or cash equivalent.13
***
Cash or cash equivalents such as currency, Treasury notes, silver certificates, foreign
bank drafts, cashier’s checks, or other forms of payment similar to those enumerated
in the pre-2005 version of section 34.01 are not at all similar to checks or other
non-guaranteed negotiable instruments as a medium of exchange. Cash or a cash
equivalent is, without more, a form of payment, and once the currency or other cash
equivalent is delivered, payment is accomplished and is no longer contingent on
some future event.14
8
Id. at 23-24.
9
Id. at 24.
10
Id.
11
Id. at 25.
12
Id. at 25-26.
13
Id. at 25.
14
Id. at 26.
ELLIS & COLYANDRO — 5
During this discussion, the court of appeals noted that a “foreign bank draft” was a “teller’s check,”
with payment guaranteed, and thus constituted a cash equivalent.15 “Foreign bank drafts” was among
the items in the statutory list.16 The court of appeals also cited legislative history in support of its
conclusion that the version of the money laundering statute that was applicable to the appellants was
not intended to apply to checks.17
In a motion for rehearing, the State argued that the court of appeals erred in discussing
whether or not the money laundering statute applies to checks because the appellants’ claim with
respect to checks was an “as applied” challenge to the statute that was not cognizable in pretrial
habeas proceedings.18 In a supplemental opinion, the court of appeals conceded that it “may consider
only facial challenges on pretrial habeas.”19 Nevertheless, the court of appeals concluded that the
State’s contention was without merit. First, the court concluded that the appellants had in fact raised
a facial challenge to the statute because they did not contend that the term ‘funds’ was vague “only
as it applied in these indictments.”20 Although the appellants argued that the money laundering
statute was unconstitutional if money laundering could be committed by check, the court of appeals
15
Id. at 26 n.21.
16
Id. at 24.
17
Id. at 27-29. In 2005, the money laundering statute was amended to explicitly include
checks within the definition of “funds.” See id. at 28 (citing Acts 2005, 79th Leg., R.S., ch. 1162,
§1).
18
See id. at 37 (supplemental opinion). The State also challenged the court of appeals’s
statutory construction analysis, see id. at 39-41, but, given our disposition of the State’s first ground
for review, see this opinion, infra, we are not concerned with that challenge here.
19
Id.
20
Id. at 37-38.
ELLIS & COLYANDRO — 6
found that the appellants also argued more generally that “dictionaries offer many and divergent
definitions of ‘fund,’ which are inconsistent with the types of ‘funds’ enumerated in the statute” and
that “the statute is unconstitutionally vague because it denies fair notice that it criminalizes conduct
not within the enumerated classes of ‘funds.’”21 Second, the court of appeals concluded that, even
if some of the appellants’ complaints could be characterized as raising an “as applied” challenge,
resolution of those complaints was necessary to resolving the facial challenge at issue on appeal.22
In support of this conclusion, the court relied upon a statement by the Supreme Court in Hoffman
Estates v. Flipside, Hoffman Estates Inc.,23 that in analyzing a facial overbreadth or vagueness
challenge, “[a] court should . . . examine the complainant’s conduct before analyzing other
hypothetical applications of the law.”24
In a dissent to the refusal to hear the case en banc,25 Justice Henson criticized the court of
appeals panel’s opinion as “overbroad and rife with dicta.”26 She believed that the panel, in
concluding that the money laundering statute did not apply to checks, had reached the merits of an
“as applied” challenge that was not properly before the court.27 She characterized the appellants’
21
Id. at 38 (some internal quotation marks omitted).
22
Id.
23
455 U.S. 489 (1982).
24
Ellis, 279 S.W.3d at 38 (quoting Hoffman Estates, 455 U.S. at 495); see also Ellis, 279
S.W.3d at 38-39.
25
Justice Henson requested that the cases be heard en banc, and that request was overruled.
Id. at 30.
26
Id. at 31 (Henson, J., dissenting).
27
Id.
ELLIS & COLYANDRO — 7
challenge as an “as applied” challenge “in sheep’s clothing” because “the State’s interpretation of
the statute must be correct in order for their vagueness challenge to succeed.”28 Justice Henson
further concluded that, because the appellants conceded that the term “funds” plainly includes cash
or currency, a facial challenge must necessarily fail on that basis.29 She also observed that two
Dallas Court of Appeals cases had upheld the sufficiency of the evidence to support money-
laundering charges based on transactions involving checks30 and that the federal money laundering
statute “clearly criminalizes the laundering of checks.”31 Justice Henson also criticized the panel’s
application of the principle of ejusdem generis and the conclusions drawn from the 2005
amendments to the money laundering statute.32
In a dissent to the overruling of the State’s motion for reconsideration en banc,33 Justice
Patterson also argued that the court of appeals panel had ruled on an “as applied” vagueness
challenge that was not properly before it.34 In her view, the money laundering indictments merely
alleged the $190,000 check as the method of laundering the funds, but the actual funds were the
28
Id.
29
Id. at 32.
30
Id. at 33 (citing Lee v. State, 29 S.W.3d 570 (Tex. App.–Dallas 2000, no pet.) and Davis
v. State, 68 S.W.3d 273 (Tex. App.–Dallas 2002, pet. ref’d)). Justice Henson acknowledged that
“the precise issue of whether checks were considered ‘funds’ under the money laundering statute was
not before the court” in those cases. Ellis, 279 S.W.3d at 33.
31
Id.
32
Id. at 35-37.
33
See id. at 41.
34
Id. 41-42 (Patterson, J., dissenting).
ELLIS & COLYANDRO — 8
corporate contributions, which may or may not have consisted of checks.35 Because a trial had not
occurred, in which evidence could have been elicited as to the exact form of the corporate
contributions, Justice Patterson concluded that a ruling on the appellants’ vagueness challenge was
premature.36 Justice Patterson also concluded that any facial challenge made by the appellants failed
because, by conceding that “funds” included cash, they could not demonstrate that the statute was
vague in all its applications.37
The State filed a petition for discretionary review, arguing in its first ground that the court
of appeals erred in discussing whether or not the money laundering statute applies to checks because
the appellants’ claim with respect to checks was an “as applied” challenge to the statute that was not
cognizable in pretrial habeas proceedings.38 Colyandro also filed a petition for discretionary review,
35
Id.
36
Id.
37
Id. at 42-43.
38
The State’s grounds for review read as follows:
GROUND ONE: The court of appeals erred by addressing the appellants’ “as
applied” challenge to the 2002 money laundering statute brought in a pretrial writ of
habeas corpus, where only a facial challenge was cognizable. In holding that this “as
applied” challenge was actually a facial challenge, the court improperly looked
behind the face of the indictment and misinterpreted a decision of the United States
Supreme Court.
GROUND TWO: The court of appeals erred in performing unnecessary statutory
analysis and in examining legislative history and treatises to interpret the meaning of
terms in the statute when the plain text was not ambiguous and did not lead to absurd
results.
Due to our disposition of the State’s first ground for review, we do not reach its second ground for
review.
ELLIS & COLYANDRO — 9
arguing that the court of appeals erred in declining to apply a “strict scrutiny” analysis and erred in
refusing to hold that the Election Code provisions were unconstitutionally vague or overbroad.39 We
granted both petitions.
II. ANALYSIS
A. Money Laundering
Regarding the State’s petition, the first question that we confront was raised by Ellis’s
attorney at oral argument: “Why are we here?” The court of appeals affirmed the trial court’s
judgment in favor of the State, so the State “won” on appeal. Ordinarily, a first-level appellate court
retains wide latitude to uphold a trial court’s decision in a manner the appellate court deems
appropriate.40 But pretrial habeas, followed by an interlocutory appeal, is an “extraordinary remedy,”
39
Colyandro’s grounds for review read as follows:
GROUND ONE: The court of appeals erred in finding that Section 253.094 of the
Texas Election Code was not unconstitutionally vague, employing a standard of
review applicable to civil, not criminal cases.
GROUND TWO: The court of appeals erred in finding that Section 253.094 of the
Texas Election Code was not unconstitutionally overbroad, employing a standard of
review applicable to civil, not criminal cases.
In his brief, Colyandro breaks the discussion into three topics: (1) the appropriate standard of review,
(2) vagueness, and (3) overbreadth. The State contends that the standard of review topic is the only
issue fairly encompassed within Colyandro’s petition and that we should not address the merits of
the vagueness and overbreadth issues. We conclude, however, that the three topics outlined in
Colyandro’s brief were all fairly raised in his petition, and we will follow the three-point structure
of his brief in our analysis of his claims.
40
See Menefee v. State, 287 S.W.3d 9, 18 (Tex. Crim. App. 2009) (court of appeals that
affirmed the trial court’s judgment on one basis was not “compelled to address” an alternate
argument for affirming the trial court’s judgment); State v. Plambeck, 182 S.W.3d 365, 367 n.10
(Tex. Crim. App. 2005) (court of appeals did not err in failing to decide an issue that became moot
because of its resolution of a different issue); State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App.
1998) (an appellate court may consider, for the first time on appeal, an alternate theory of law
ELLIS & COLYANDRO — 10
and “appellate courts have been careful to ensure that a pretrial writ is not misused to secure pretrial
appellate review of matters that in actual fact should not be put before appellate courts at the pretrial
stage.”41 Consequently, whether a claim is even cognizable on pretrial habeas is a threshold issue
that should be addressed before the merits of the claim may be resolved.42 If a non-cognizable claim
is resolved on the merits in a pretrial habeas appeal, then the pretrial writ has been misused, and the
State can appropriately petition this Court to correct such misuse.
So, did the court of appeals resolve a non-cognizable claim? Generally, pretrial habeas is not
available to test the sufficiency of the charging instrument43 or to construe the meaning and
application of the statute defining the offense charged.44 Pretrial habeas can be used to bring a facial
challenge to the constitutionality of the statute that defines the offense but may not be used to
advance an “as applied” challenge.45
The appellants certainly asserted that the money laundering statute was facially
unconstitutional, but such an assertion is not, by itself, enough. If a claim designated as a facial
applicable to the facts of the case which supports the trial court’s decision). But see Rushing v. State,
85 S.W.3d 283, (Tex. Crim. App. 2002) (although the court of appeals affirmed the trial court’s
decision in favor of the State, we granted the State’s petition for discretionary review and held that
the court of appeals erred in finding a statute unconstitutional).
41
Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (internal quotation marks
omitted) (quoting, in part, from Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)).
42
Doster, 303 S.W.3d at 721, 721 n.2, 727.
43
Id. at 724; Weise v. State, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).
44
See Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006) (in pari materia
challenge not cognizable on pretrial habeas); Weise, 55 S.W.3d at 620-21 (whether illegal dumping
statute requires a culpable mental state not ripe for review on pretrial habeas).
45
Weise, 55 S.W.3d at 620-21.
ELLIS & COLYANDRO — 11
challenge is in fact an as-applied challenge, courts should refuse to consider the merits of the claim.
The money laundering statute that the appellants are accused of violating provides: “A person
commits an offense if the person knowingly . . . conducts, supervises, or facilitates a transaction
involving the proceeds of criminal activity.”46 The term “proceeds” is defined to mean “funds
acquired or derived directly or indirectly from, produced through, or realized through an act.”47 In
turn, the term “funds” is defined as follows:
(A) coin or paper money of the United States or any other country that is designated
as legal tender and that circulates and is customarily used and accepted as a medium
of exchange in the country of issue;
(B) United States silver certificates, United States Treasury notes, and Federal
Reserve System notes;
(C) official foreign bank notes that are customarily used and accepted as a medium
of exchange in a foreign country and foreign bank drafts.48
The court of appeals’s supplemental opinion suggests that the appellants’ challenge to the
definition of “funds” was a facial challenge because it was not limited to the particular indictments
in these cases. But unless First Amendment freedoms are implicated,49 a facial vagueness challenge
can succeed only if it is shown that the law is unconstitutionally vague in all of its applications.50
46
T EX . PENAL CODE § 34.02(a)(2).
47
Id., § 34.01(4).
48
Id., § 34.01(2).
49
Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim. App. 1996).
50
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
(2008) (citing United States v. Salerno, 481 U.S. 739, 745 (1987), which set forth the standard);
Sanchez v. State 995 S.W.2d 677, 683 (Tex. Crim. App. 1999). Appellants contend that the Salerno
standard no longer applies and instead argue that the test is whether the statute has “plainly
legitimate sweep.” In State v. Markovich, we recognized that the appropriate standard to apply for
ELLIS & COLYANDRO — 12
Here, no one has argued that the money laundering statute implicates First Amendment activity, and
we have no reason to think that it does so. It is not enough, then, that the appellants’ constitutional
challenge may have been somewhat broader than the indictments. That fact, standing alone, does
not suffice to establish that the claim is a facial challenge because, despite this breadth, it still is not
a claim that the law is vague in all of its applications.
A facial vagueness challenge to the definition of “funds” in the money laundering statute
would have to take one of two forms. First, one could challenge the definition of “funds” as vague
in its entirety. But the appellants conceded in their briefs to the court of appeals that the items listed
in the statutory definition of “funds” were reasonably specific. They referred to the list as a
“seemingly narrow definition,” that was disrupted by the State’s broad interpretation of the term
“includes.” The appellants took the position that the enumerated items were forms of cash, and they
objected to the money laundering statute only insofar as it “criminalized transactions not involving
cash.”
There is a second form that a facial challenge could take in this case. One could challenge
the definition of “funds” as vague insofar as it extends outside the statutory list. This second
scenario for mounting a facial challenge is possible because the term “includes,” as a term of
“enlargement and not of limitation,”51 essentially creates an implied “catch-all” provision. Courts
facial vagueness challenges was “the subject of debate within the U.S. Supreme Court.” 77 S.W.3d
274, 278 (Tex. Crim. App. 2002). Our reading of Washington State Grange indicates that the debate
has been settled in favor of the Salerno standard, 552 U.S. at 449, but, as in that case, id., evaluation
of the money laundering statute under the “plainly legitimate sweep” standard would not alter our
disposition here. As our discussion will show, the existence of legitimate applications in this case
also shows that the statute has a “plainly legitimate sweep.”
51
“‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive
enumeration, and use of the terms does not create a presumption that components not expressed are
ELLIS & COLYANDRO — 13
have recognized that a catch-all provision can be unconstitutionally vague on its face even if the
other, enumerated items in a statutory list are reasonably specific.52
But a challenge to the implied catch-all provision in this case is defeated by the inclusion of
foreign bank drafts in the list. As we have observed above, the appellants claim that all of the items
in the statutory list of “funds” are forms of cash,53 and they claim that the term “funds” is vague to
the extent that it encompasses items other than cash. “Foreign bank drafts” is one of the enumerated
items in the list. For the appellants’ characterization of the list to be correct, then, foreign bank
drafts would have to be a form of cash, and in fact, the appellants (and the court of appeals) contend
that a foreign bank draft is a form of cash because payment is guaranteed by the bank. We need not
decide whether the characterization of foreign bank drafts as a form of cash is accurate. Assuming
its accuracy for the sake of discussion, the characterization would apply equally to domestic bank
drafts, also known as “cashier’s checks”—a fact the court of appeals recognized in its opinion. But
domestic bank drafts are not enumerated in the list, so they would be covered by the implied catch-
all provision. And because the implied catch-all provision would cover at least one form of
cash—domestic bank drafts, a.k.a. cashier’s checks—the appellants “cash only” position, if assumed
excluded.” TEX . GOV ’T CODE § 311.005(13).
52
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769-70, 772 (1988)
(catch-all provision found to be unconstitutionally vague, remand to determine whether
unconstitutional provisions can be severed); State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998)
(error in instructing jury on facially unconstitutionally vague catch-all provision was harmless in
light of other nonvague provisions under which the jury was also instructed).
53
Sometimes the appellants and the court of appeals refer to “cash equivalents.” For the
sake of discussion, future references to “a form of cash” in this opinion include the term “cash
equivalents.”
ELLIS & COLYANDRO — 14
to be true, establishes that the implied catch-all provision is facially constitutional.54
What about the court of appeals’s contention that it had to resolve whether the statute was
constitutional “as applied” in order to resolve the appellants’ facial challenge? The short answer to
this question is that the appellants did not really advance a facial challenge, but advanced an “as
applied” claim that was disguised as a facial challenge. Addressing the “as applied” substance of
the claim resulted in a circumvention of the pretrial habeas cognizability limitations.
With respect to the court of appeals’s reliance upon Hoffman Estates for the proposition that
it should examine the appellants’ conduct before analyzing other hypothetical applications of the
law, we observe that the decision in Hoffman Estates was issued after a full trial.55 When the
Supreme Court suggested addressing the complainant’s conduct first,56 it had a record detailing the
conduct in question. In the pretrial habeas action currently before us, all we have are the
indictments. Moreover, the rationale for first examining the conduct of the complaining party is that
a person “who engages in some conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others.”57 The suggestion that a complaining party’s conduct
should be examined first is designed to quickly dispose of unmeritorious facial claims. Given the
cognizability limitations and the sparse record in pretrial habeas proceedings, an appellate court
should not address a novel statutory construction argument when, under established law, the
54
Because domestic bank drafts are in common use, a facial challenge would fail even under
the “plainly legitimate sweep” standard advocated by the appellants.
55
455 U.S. at 493-94.
56
See id. at 495.
57
Id.
ELLIS & COLYANDRO — 15
defendant’s facial challenge is clearly without merit.
Moreover, the Hoffman Estates court upheld the facial validity of the ordinance at issue by
finding that “at least some of the items sold by [the complaining party] are covered” clearly by the
statutory language.58 The Supreme Court did not feel the need to comprehensively determine what
was and was not covered to uphold the facial constitutionality of the statute. It was enough to say
that some things were clearly covered. In the present case, the court of appeals held that checks are
not covered by the term “funds” because the term “funds” covers only forms of cash. In arriving at
its holding, the court of appeals necessarily determined that the items contained in the statutory list,
along with cashier’s checks, were forms of cash that clearly constituted “funds” under the money
laundering statute. Deciding that the term “funds” clearly covers at least those items that are forms
of cash would itself have been sufficient to defeat a facial vagueness challenge. There was no need
for the court of appeals to go further and decide that “funds” covered only forms of cash.
Consequently, we sustain the State’s first ground for review, and we hold that the court of
appeals improperly resolved an “as applied” challenge when it held that the money laundering statute
did not apply to checks.
B. Election Code
1. Overview
We begin with a brief overview of the evolution of the Supreme Court’s First Amendment
jurisprudence with respect to money in elections. In Buckley v. Valeo, the Court upheld limitations
on the amount of money a person may contribute to another person’s campaign59 but struck down
58
Id. at 500 (bracketed material inserted).
59
424 U.S. 1, 23-29 (1976).
ELLIS & COLYANDRO — 16
limitations on independent expenditures made on behalf of a political cause or candidate.60 Although
a limitation upon the amount of money a person or group may contribute to a candidate or political
committee “entails only a marginal restriction upon the contributor’s ability to engage in free
communication,”61 a limitation upon independent expenditures “heavily burdens core First
Amendment expression.”62 The Court found that contribution limitations were sufficiently justified
by the danger of corruption or the appearance of corruption,63 while these dangers were not sufficient
to justify limitations on independent expenditures.64
In Federal Election Comm’n v. Beaumont, the Court would later say that this disparate
treatment between contributions and independent expenditures was explained by a differing level
of scrutiny applied to the two categories of activity.65 Contribution regulations were justified so long
as they were “closely drawn to match a sufficiently important interest,” while expenditure regulations
had to be “narrowly tailored to serve a compelling government interest.”66
In Austin v. Michigan State Chamber of Commerce, the Supreme Court held that limitations
on independent corporate expenditures were justified by a newly articulated, compelling government
interest in preventing the “corrosive and distorting effects of immense aggregations of wealth that
60
Id. at 39-56.
61
Id. at 20-21.
62
Id. at 47-48.
63
Id. at 26-28.
64
Id. at 45-48.
65
539 U.S. 146, 161-62 (2003).
66
Id. at 162.
ELLIS & COLYANDRO — 17
are accumulated with the help of the . . . unique state-conferred corporate structure.”67 Beaumont
was decided after Austin and cited Austin for the proposition that the “special characteristics of the
corporate structure” could threaten the integrity of the political process.68 But the Beaumont case
involved a ban on corporate contributions, rather than on expenditures, and the statute was analyzed
under the more traditional rationale of preventing corruption.69 In addition to preventing “war-chest”
corruption, the Beaumont court explained that a ban on corporate contributions also served to prevent
individuals from using the corporate form to circumvent valid contribution limits.70 Recently, in
Citizens United v. Federal Election Comm’n,71 the Supreme Court overruled Austin and held that
the government could not place limitations upon independent corporate expenditures.72
2. Standard of Review
Colyandro contends that the court of appeals should have reviewed the Election Code
provisions under strict scrutiny—the compelling government interest test—rather than under the
more lenient “sufficiently important interest” test applied to contributions in Buckley and Beaumont.
First, Colyandro argues that strict scrutiny should apply to the extent that a law carries criminal
sanctions. In support of this proposition, he cites Reno v. American Civil Liberties Union.73 Reno
67
494 U.S. 652, 660 (1990).
68
Beaumont, 539 U.S. at 153.
69
Id. at 154.
70
Id. at 155.
71
130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).
72
Citizens United, 130 S. Ct. at 912-13, 175 L. Ed. 2d at 798-99.
73
521 U.S. 844 (1997).
ELLIS & COLYANDRO — 18
is not on point because that opinion addressed the constitutionality of the Communications Decency
Act,74 not the regulation of political contributions. If the Supreme Court’s caselaw were devoid of
political contribution decisions, then we might look to Reno for guidance, but that is not the situation
here, as we have Buckley and Beaumont to guide us.
Colyandro asserts that Buckley and Beaumont are distinguishable because the laws addressed
in those cases “involved civil regulations on contributions, as opposed to criminal penalties.” We
find that Colyandro is mistaken in that regard. The Buckley lawsuit sought declaratory and
injunctive relief.75 The Attorney General of the United States was named as one of the defendants,76
presumably because the plaintiffs feared potential criminal liability. Indeed, Colyandro observes that
the independent expenditure limitations in Buckley did carry criminal penalties, and he cites the
“expenditures” portion of the Buckley opinion for the proposition that “close examination” is
required when “the legislation imposes criminal penalties in an area permeated by First Amendment
interests.”77 But Colyandro overlooks the fact that the contribution limitations also carried criminal
penalties, which was taken into account by the Court in Buckley, which held that the expenditure
limitations were not needed to enforce the valid limitations upon contributions: “There is no
indication that the substantial criminal penalties for violating the contribution ceilings combined with
the political repercussion of such violations will be insufficient to police the contribution
74
Id.
75
Buckley, 424 U.S. at 8-9.
76
Id. at 8.
77
See id. at 40-41.
ELLIS & COLYANDRO — 19
provisions.”78
Beaumont involved a lawsuit by a corporation against the Federal Election Commission that
challenged the constitutionality of a federal statute and some FEC regulations,79 and it appears to
have been in essentially the same procedural posture as Buckley. The Beaumont court recognized
the criminal sanctions attached to illegal corporate contributions: “[M]uch of the periodic
amendment [of election laws] was meant to strengthen the original, core prohibition on direct
corporate contributions. The Foreign Corrupt Practices Act of 1925, for example, broadened the ban
on contributions to include ‘anything of value,’ and criminalized the act of receiving a contribution
to match the criminality of making one.”80 Applying strict scrutiny to an election statute on the basis
that it carries a criminal penalty would also conflict with Beaumont’s pronouncement that “the
degree of scrutiny turns on the nature of the activity regulated.”81
Colyandro next argues that Buckley is distinguishable because it limited only the size of
contributions, while the election statutes at issue here ban corporate contributions in their entirety.
But Beaumont dealt with a ban on corporate contributions,82 and Colyandro acknowledges that, in
that case, the Supreme Court “held that a ban on direct corporate contributions does not change its
analytical approach to the constitutional question.” The Supreme Court explained that “restrictions
on political contributions have been treated as merely ‘marginal’ speech restrictions subject to
78
Id. at 55-56.
79
Beaumont, 539 U.S. at 149-50.
80
Id. at 153 (bracketed material added).
81
See id. at 162.
82
Id. at 161-62.
ELLIS & COLYANDRO — 20
relatively complaisant review under the First Amendment, because contributions lie closer to the
edges than to the core of political expression.”83 According to the Court: “It is not that the difference
between a ban and a limit is to be ignored; it is just that the time to consider it is when applying
scrutiny at the level selected, not in selecting the standard of review itself.”84 Nevertheless,
Colyandro claims that “the Court has yet to rule on whether such a ban on contributions demands
strict scrutiny when the statute at issue also imposes criminal penalties for violations,” but as we
have explained above, Colyandro is simply mistaken in that regard.
Finally, in a supplemental-authority letter, Colyandro suggests that our analysis should be
affected by the recent Supreme Court decision in Citizens United.85 Colyandro acknowledges that
“the Supreme Court’s explicit holding was limited to campaign expenditures,” but he contends that
“the ruling marks a philosophical shift in the Court’s treatment of restrictions on corporate free
speech.” Colyandro argues: “Given the fact that contributions are a type of political speech, Citizens
United’s broad language concerning the unlawfulness of restrictions on corporate speech logically
extends to restrictions on corporate campaign contributions.”
Although we agree that Citizens United has significantly affected the constitutional landscape
with respect to corporate free speech by removing restrictions on independent corporate
expenditures, we disagree with Colyandro’s contention that the decision has had any effect on the
Court’s jurisprudence relating to corporate contributions. The Court explained that Buckley
83
Id. at 161.
84
Id. at 162.
85
Citizens United was handed down after the oral arguments in the present case.
ELLIS & COLYANDRO — 21
“distinguished direct contributions to candidates from independent expenditures.”86 The Court found
that a later case had “little relevance” to the issue at hand because it “involved contribution limits,
which, unlike limits on independent expenditures, have been an accepted means to prevent quid pro
quo corruption.”87
Two concurring opinions in Citizens United suggest continued support for the Court’s prior
pronouncements regarding corporate contributions. Chief Justice Roberts, joined by Justice Alito,
remarked that Austin was an “aberration” that “undermined the careful line that Buckley drew to
distinguish limits to contributions to candidates from limits on independent expenditures on
speech.”88 The Chief Justice also explained that Beaumont, and certain other cases decided after
Austin, did not in any way “reaffirm” Austin’s holding.89 Justice Scalia observed that corporations
are entitled to First Amendment protection because they are simply “associations of individuals.”90
If it is unconstitutional to limit an individual’s independent expenditure, then it is necessarily
unconstitutional to limit expenditures made by associations of individuals.91 But if it is legitimate
to limit an individual’s contributions (Buckley), then it follows that laws can be enacted to prevent
86
Citizens United, 130 S. Ct. at 901-02, 175 L. Ed. 2d at 785-86.
87
Id., 130 S. Ct. at 909, 175 L. Ed. 2d at 794 (discussing Federal Election Comm’n v.
National Right to Work Comm., 459 U.S. 197, 210, 103 S. Ct. 552, 74 L. Ed. 2d 364 (1982)).
88
Citizens United, 130 S. Ct. at 921, 175 L. Ed. 2d at 807-08 (Roberts, C.J., concurring).
89
Id., 130 S. Ct. at 919-20, 175 L. Ed. 2d at 806.
90
Id., 130 S. Ct. at 929, 175 L. Ed. 2d at 816 (Scalia, J., concurring).
91
See id. (“The [First] Amendment is written in terms of ‘speech,’ not speakers. Its text
offers no foothold for excluding any category of speaker, from single individuals to partnerships of
individuals, to unincorporated associations of individuals, to incorporated associations of
individuals.”)
ELLIS & COLYANDRO — 22
associations of individuals from being used to circumvent those contribution limits (Beaumont).
3. Vagueness
When First Amendment freedoms are implicated, a criminal law must: (1) be sufficiently
clear to afford a person of ordinary intelligence a reasonable opportunity to know what is prohibited,
(2) establish determinate guidelines for law enforcement, and (3) be sufficiently definite to avoid
chilling protected expression.92 When a vagueness challenge involves First Amendment
considerations, a criminal law may be held facially invalid even if the law has some valid
application.93 “But perfect clarity and precise guidance have never been required even of regulations
that restrict expressive activity.”94
Colyandro’s prosecution arises from the interplay of several provisions of the Election Code.
Texas Election Code § 253.003 provides in relevant part that “[a] person may not knowingly accept
a political contribution the person knows to have been made in violation of this chapter.”95 Under
§ 253.094, “[a] corporation . . . may not make a political contribution . . . that is not authorized by
this subchapter.”96 A “contribution” is “a direct or indirect transfer of money, goods, services, or any
other thing of value,”97 and a contribution constitutes a “political contribution” if it is “a campaign
92
Long, 931 S.W.2d at 287.
93
Id. at 288 (if First Amendment is involved, “criminal law may be held facially invalid even
though it may not be unconstitutional as applied to the defendant’s conduct”).
94
United States v. Williams, 553 U.S. 285, 304 (2008) (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 794 (1989)) (internal quotation marks omitted).
95
T EX . ELECTION CODE § 253.003(b).
96
Id., § 253.094(a).
97
Id., § 251.001(2).
ELLIS & COLYANDRO — 23
contribution or an officeholder contribution.”98 A “campaign contribution” is “a contribution to a
candidate or political committee that is offered or given with the intent that it be used in connection
with a campaign for elective office or on a measure.”99
a. Issue Advocacy
Colyandro argues that this statutory scheme is unconstitutionally vague because a corporation
that makes a contribution for the purpose of advocating an issue would not know whether the
contribution was legal. He asks: “[I]f a certain political candidate is the only person supporting a
particular measure, and the corporation knows that any money given to a political committee
supporting the measure would assist this candidate’s campaign, then has the corporation made a
contribution ‘in connection with’ a campaign for elective office?” Colyandro observes that the
Election Code allows certain corporate contributions in support of measures, but he overlooks the
significance of the wording of the provision in question.
As we explained above, corporate political contributions are prohibited unless authorized in
the Election Code. The Code authorizes corporate contributions on a measure under the following
circumstances: “A corporation . . . may make campaign contributions from its own property in
connection with an election on a measure only to a political committee for supporting or opposing
measures exclusively.”100 Under this statute, a corporation can contribute money to support or
oppose a measure, but only if it gives that money to an entity devoted exclusively to measures, i.e.
an entity that does not contribute to candidates. A corporation violates the law if it makes a
98
Id., § 251.001(5).
99
Id., § 251.001(3).
100
Id., § 253.096.
ELLIS & COLYANDRO — 24
contribution to a political committee for the purpose of supporting or opposing a measure if that
political committee also contributes to candidates. The exclusivity aspect of the provision seems
designed to prevent diversion of funds from an acceptable purpose (supporting or opposing a
measure) to an unacceptable purpose (supporting or opposing a candidate). A corporation can be
confident that it is following the law if the contribution is given to a political committee devoted
exclusively to measures because that political committee cannot make a contribution to a candidate.
And a corporation can be equally confident that a political contribution given to an entity that is not
devoted exclusively to measures is a violation of the law unless authorized by another provision of
the Election Code. Corporations are also allowed to contribute to political parties under certain
circumstances.101
b. Designation
Colyandro also contends that the court of appeals’s holding that the election statute is not
vague hinges upon the court’s determination that a person can “designate” the purpose of a
contribution. But, he argues, the whole point of Buckley’s holding with respect to contributions is
that the contributor does not have to designate anything—it is the person who receives the
contribution who decides how the money is spent. If a corporation must designate the purpose for
which a contribution is used, then, Colyandro contends, the contribution becomes “closer to an
expenditure” under the Supreme Court’s jurisprudence.
An understanding of the court of appeals’s “designation” discussion requires an examination
of some arguments made by Colyandro in the court of appeals. Colyandro suggested two scenarios
in which the Election Code failed to provide adequate guidance regarding what conduct is
101
See id., §§ 253.104, 257.001, 257.002, 257.004.
ELLIS & COLYANDRO — 25
prohibited. First, he contended that a corporation might wish to make a donation to a group that
advocates in favor of a particular issue. We have addressed this argument above. A corporation may
make a political contribution to a group that favors a measure but only if the group does not
contribute to candidates. In a sense, the corporation “designates” the purpose of the contribution by
giving it to a group that can use it only for a certain purpose.
The second scenario Colyandro presented to the court of appeals was based on § 253.100,
which governs expenditures made by a corporation to finance the establishment or administration
of a general-purpose committee.102 Colyandro contended that this law allowed TRMPAC to accept
corporate money for establishment and administration, but he contended that the law offered no clear
definition of the phrase “establishment or administration,” so that a corporate donor would have to
guess whether a donation would fit that category.
Under § 253.100, a corporation may create its own political committee.103 The corporation
may then use this political committee to solicit contributions from shareholders, employees, and their
families.104 The corporation is permitted to make expenditures for the maintenance and operation
of the committee.105 The Legislature set out a list of twelve items included as qualifying
expenditures (e.g., office equipment and utilities)106 and a list of eight items for which expenditures
102
See id., § 253.100.
103
See id., § 253.100(a).
104
Id., § 253.100(b).
105
Id., § 253.100(a).
106
Id., § 253.100(a)(1)-(12).
ELLIS & COLYANDRO — 26
may not be made.107 It appears that contributions made by a corporation to such a committee would
not be considered to be expenditures.108 But even assuming that they could be considered the same,
it is nevertheless clear that § 253.100 contemplates expenditures made by a corporation for certain
purposes. A contribution with no strings attached would not qualify as such an expenditure.
To the extent that the court of appeals may have suggested that there is no such thing as an
undesignated corporate political contribution, the error it made was minor. It would be more
accurate to say that there is no such thing as a legal undesignated corporate political contribution.
Individuals can legally make undesignated political contributions, but corporations cannot. A
corporation must designate the purpose of the political contribution by contributing to a political
committee that is exclusively devoted to measures, by making expenditures for maintenance or
operation of a corporate political committee, or by contributing to a political party under certain
narrowly defined conditions.
c. “in connection with”
Colyandro also argues that the phrase “in connection with a campaign for elective office” is
unconstitutionally vague for the same reasons that the phrase “relative to a clearly identified
candidate” was found problematic in Buckley. But the Supreme Court’s problem with the latter
phrase arose in the context of independent expenditures, not contributions.109 The Court addressed
a similarly broad phrase, “‘for the purpose of influencing’ an election,” and found that its use
107
Id., § 253.100(d)(1)-(8).
108
See id., § 251.001(8)(“‘Direct campaign expenditure’ means a campaign expenditure that
does not constitute a campaign contribution by the person making the expenditure”).
109
Buckley, 424 U.S. at 39-44.
ELLIS & COLYANDRO — 27
presented “fewer problems in connection with the definition of a contribution because of the limiting
connotation created by the general understanding of what constitutes a political contribution.”110
Under this limited definition, “[f]unds provided to a candidate or political party or campaign
committee either directly or indirectly through an intermediary constitute a contribution. In addition,
dollars given to another person or organization that are earmarked for political purposes are
contributions under the Act.”111 Moreover, though the Court did not address a vagueness argument
in Beaumont, it is nevertheless worth pointing out that the Court upheld against a First Amendment
challenge the contribution aspect of a statute that makes it “unlawful . . . for any corporation
whatever . . . to make a contribution or expenditure in connection with” certain federal elections.112
Colyandro points to the Supreme Court’s statement that “the distinction between discussion
of issues and candidates and advocacy of election or defeat of candidates may often dissolve in
practical application.”113 Again, this statement was made with respect to independent
expenditures.114 The Supreme Court has not suggested that a similar problem arises with respect to
contributions. The problem arises with respect to independent expenditures because expenditures
on some types of speech are allowed while others are not, and the dividing line between them is
110
Id. at 24 n.24.
111
Id.
112
539 U.S. at 149. As with our statute, the federal election statute allowed a corporation
to form a political committee for the purpose of soliciting contributions from its shareholders and
employees. Id.
113
Buckley, 424 U.S. at 42.
114
Id.
ELLIS & COLYANDRO — 28
wholly subjective.115 But, as Colyandro has pointed out, and as with the statute in Beaumont, the
Election Code provisions at issue here effect a complete ban on undesignated corporate political
contributions.116
d. Intent
Finally, Colyandro contends that vagueness inheres in the requirement that the contribution
be made “with the intent that it be used” for prohibited purposes. He claims that a contributor
cannot know whether the intended use of the contribution would be construed as being in connection
with a campaign for political office117 and that the recipient cannot know the intent of the contributor,
especially if the contributor is a corporation. Colyandro further argues that enforcement of the law
is virtually impossible because law enforcement will not be able to ascertain the intent of the
corporate contributor or the recipient:
Given that the Election Code does not force the corporate contributor to report the
purpose of the contribution, law enforcement will be hard-pressed to determine when
an acceptor of an unlawful contribution actually knew that the contribution was given
with an unlawful intent. Likewise, prosecuting a corporate contributor for
intentionally making an unlawful contribution would be close to impossible in the
absence of a legislative requirement that the corporation report the purpose of the
contribution.
But the Supreme Court has held that the practical difficulty a factfinder may have in ascertaining
115
Id. at 42-43.
116
See Beaumont, 539 U.S. at 161-63 (corporate participation limited to establishing and
paying the administrative expenses of political action committees).
117
Our discussions above have largely answered the contention that a contributor cannot
know whether the contribution will be construed as intended for use in connection with a campaign
for elective office. Corporations are not permitted to make undesignated political contributions.
What remains to be addressed is the possibility that a contribution does not qualify as a “political
contribution” because it is not intended to be used in connection with an election, e.g., a contribution
made for the purpose of lobbying the legislature.
ELLIS & COLYANDRO — 29
intent does not render a law unconstitutionally vague:
What renders a statute vague is not the possibility that it will sometimes be difficult
to determine whether the incriminating fact it establishes has been proved; but rather
the indeterminacy of precisely what that fact is. Thus, we have struck down statutes
that tied criminal culpability to whether the defendant’s conduct was “annoying” or
“indecent”—wholly subjective judgments without statutory definitions, narrowing
context, or settled legal meanings. There is no such indeterminacy here. The statute
requires that the defendant hold, and make a statement that reflects, the belief that the
material is child pornography; or that he communicate in a manner intended to cause
another so to believe. Those are clear questions of fact. Whether someone held a
belief or had an intent is a true-or-false determination, not a subjective judgment such
as whether conduct is “annoying” or “indecent.” Similarly true or false is the
determination whether a particular formulation reflects a belief that material or
purported material is child pornography. To be sure, it may be difficult in some cases
to determine whether these clear requirements have been met. “But courts and juries
every day pass upon knowledge, belief and intent—the state of men’s minds—having
before them no more than evidence of their words and conduct, from which, in
ordinary human experience, mental condition may be inferred.”118
Moreover, the Supreme Court has long since taken the position that intent can be ascertained with
respect to corporations for the purpose of imposing criminal liability:
Mr. Chief Justice Feld, said: “We think that a corporation may be liable criminally
for certain offenses of which a specific intent may be a necessary element. There is
no more difficulty in imputing to a corporation a specific intent in criminal
proceedings than in civil.”
***
It is true that there are some crimes, which in their nature cannot be committed by
corporations. But there is a large class of offenses, of which rebating under the
Federal statutes is one, wherein the crime consists in purposely doing the things
prohibited by statute. In that class of crimes we see no good reason why corporations
may not be held responsible for and charged with the knowledge and purposes of
their agents, acting within the authority conferred upon them.119
118
Williams, 553 U.S. at 306 (citation omitted).
119
New York Central & Hudson Riv. R.R. Co. v. United States, 212 U.S. 481, 483 (1909)
(quoting Chief Justice Feld in Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 297, 52
N.E. 445, 446 (1899)).
ELLIS & COLYANDRO — 30
The Election Code provisions at issue require that a contributor have a certain intent before the
contribution is deemed illegal, and it requires that a recipient know that a contribution is in fact
illegal, which entails knowing the intent of the contributor, before imposing criminal liability. The
State has the burden to prove the applicable culpable mental states, and if it cannot, then a defendant
charged under these provisions is entitled to an acquittal.
We conclude that the Election Code provisions at issue here are not facially unconstitutional
due to vagueness.
4. Overbreadth
To vindicate First Amendment interests and prevent a chilling effect on the exercise of First
Amendment freedoms, the overbreadth doctrine allows a statute to be invalidated on its face even
if it has legitimate application, and even if the parties before the court have suffered no constitutional
violation.120 The overbreadth doctrine is “strong medicine” that should be employed “sparingly” and
“only as a last resort.”121 “[T]he overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute’s plainly legitimate sweep.”122
Colyandro contends that the restrictions on corporate contributions are overbroad because
they encompass issue advocacy by prohibiting some contributions with respect to measures. He
argues: “[I]f an election on a measure coincides with a political candidate’s support for this measure,
then a contribution to an election on this measure is ‘in connection with’ that candidate’s campaign,
especially if the candidate is one of the sole supporters of the measure. However . . . § 253.094
120
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
121
Id. at 613.
122
Id. at 615.
ELLIS & COLYANDRO — 31
would prevent such issue advocacy . . . .”
Colyandro’s contention about the operation of the statute is not entirely correct. As we
explained above in connection with his vagueness claim, a corporation may make a political
contribution with respect to a measure, so long as the contribution is to a political committee devoted
exclusively to measures.123 That a particular candidate may be associated with the measure has no
effect on this authorization. As we also explained above, it is true that a corporation may not make
a political contribution with respect to a measure to a political committee that also contributes to
candidates.124 That is so, regardless of whether or not a particular candidate is associated with the
measure in question.
We decide that the prohibition against making corporate political contributions on a measure
to a mixed-purpose political committee is “closely drawn to match a sufficiently important
interest.”125 This prohibition serves to prevent the diversion of corporate “measure” money to
candidates, and thus ensures that the prohibition against corporate contributions to candidates will
not be circumvented.126 The law is narrowly drawn because it addresses a narrow aspect of political
association while allowing corporations several alternate avenues for political expression with
123
T EX . ELECTION CODE, § 253.096.
124
Id.; § 253.094.
125
As we have already explained above, the “sufficiently important interest” test, not strict
scrutiny, is the appropriate standard. See Buckley, 424 U.S. at 25-29; Beaumont, 539 U.S. at 162.
126
See Beaumont, 539 U.S. at 155 (important interest in preventing the circumvention of
valid contribution limits).
ELLIS & COLYANDRO — 32
respect to measures.127 First and most obviously, a corporation may contribute to a political
committee devoted exclusively to measures.128 Second, a corporation may create its own political
committee, which can then solicit contributions from the corporation’s shareholders, employees, and
their families, and any contributions received may then be contributed without being subject to
corporate limitations.129 Finally, a corporation may make independent expenditures (e.g., buy its
own issue ads), make press releases, and otherwise have its agents directly engage in communication
with respect to a measure (or a candidate, for that matter).130 To the extent that Colyandro’s
arguments address more broadly the concept of issue advocacy, regardless of whether a measure is
slated for election, the second and third avenues detailed above afford sufficient avenues for free
127
See Buckley, 424 U.S. at 28-29 (“The Act’s $1,000 contribution limitation focuses
precisely on the problem of large campaign contributions -- the narrow aspect of political association
where the actuality and potential for corruption have been identified -- while leaving persons free
to engage in independent political expression, to associate actively through volunteering their
services, and to assist to a limited but nonetheless substantial extent in supporting candidates and
committees with financial resources.”).
128
T EX . ELECTION CODE § 253.096.
129
T EX . ELECTION CODE § 253.100; see also id., § 253.092 (“If a political committee the
only principal purpose of which is accepting political contributions and making political
expenditures incorporates for liability purposes only, the committee is not considered a corporation
for purposes of this subchapter.”). See Beaumont, 539 U.S. at 162-63 (“[T]he section permits some
participation of unions and corporations in the federal electoral process by allowing them to establish
and pay the administrative expenses of (PACs). The PAC option allows corporate political
participation without the temptation to use corporate funds for political influence, quite possibly at
odds with the sentiments of some shareholders or members, and it lets the government regulate
campaign activity through registration and disclosure, without jeopardizing the associational rights
of advocacy organizations’ members.”) (Citations and internal quotation marks omitted).
130
See Buckley, 424 U.S. at 28-29. See also Citizens United, passim (overturning federal
limitations on corporate independent expenditures).
ELLIS & COLYANDRO — 33
expression.131 We reject Colyandro’s overbreadth contention.
III. CONCLUSION
We sustain the State’s first ground for review and hold that the court of appeals should not
have addressed an “as applied” challenge to the money laundering statute. However, we agree with
the court of appeals’s conclusion that the Election Code provisions are not facially unconstitutional.
Therefore, we affirm the judgment of the court of appeals.
Delivered: April 28, 2010
Publish
131
See Buckley, 424 U.S. at 28-29; Beaumont, 539 U.S. at 162-63.