King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs v. Texas Democratic Party Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk And Ann Bennett, in Her Capacity as the Democratic

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 15-0320
444444444444

KING STREET PATRIOTS, CATHERINE ENGELBRECHT, BRYAN ENGELBRECHT, AND
DIANE JOSEPHS, PETITIONERS,

v.

TEXAS DEMOCRATIC PARTY; GILBERTO HINOJOSA, SUCCESSOR TO BOYD RICHIE ,
IN HIS CAPACITY AS CHAIRMAN OF THE TEXAS D EMOCRATIC PARTY ; JOHN
WARREN, IN HIS CAPACITY AS DEMOCRATIC NOMINEE FOR DALLAS COUNTY
CLERK; AND ANN BENNETT, IN HER CAPACITY AS THE DEMOCRATIC NOMINEE
FOR HARRIS COUNTY CLERK , RESPONDENTS

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

Argued February 7, 2017

JUSTICE GUZMAN delivered the opinion of the Court.

JUSTICE DEVINE filed a concurring opinion.

The liberty of the electors in the exercise of the right vested in them by the
Constitution to choose public officers on whatever principle or dictated by whatever
motive they see fit . . . cannot be denied.1

1
Gilmore v. Waples, 188 S.W . 1037, 1039 (Tex. 1916).
 Political liberty is the bedrock of our democracy, and the right of citizens to choose their

public officials and political associations is deeply rooted in our constitutional firmament. The vast

breadth of the freedoms “We the People”2 enjoy moved Alexis de Tocqueville to write “[t]here is

only one country on the face of the earth where the citizens enjoy unlimited freedom of association

for political purposes.”3 But while the United States Constitution robustly protects the right of

electors to choose their representatives, “[t]he States possess a broad power to prescribe the ‘Times,

Places and Manner of holding Elections for Senators and Representatives,’ . . . [and] state offices.”4

Though broad, the State’s power to prescribe laws regulating elections is constitutionally constrained

and is therefore subject to limits established by the First Amendment, including the freedom of

political association granted to our citizens.5 This case, which involves a constitutional challenge

to the Texas Election Code, highlights the tension between the warp and weft of these rights and

powers in our constitutional fabric.

2
U.S. C O N ST . pmbl.

3
2 A LEXIS D E T O CQ UEVILLE , D EM O CRACY IN A M ERICA 140 (Francis Bowen ed., Henry Reeve trans., Sever &
Francis 4th ed. 1864) (1835).

4
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (citing U.S. C O N ST . art. I,
§ 4, cl. 1).

5
Id.

2
 The Texas Democratic Party6 sued King Street Patriots,7 alleging noncompliance with

obligations and restraints the Election Code imposes on “political committees” and corporations.

King Street Patriots is a self-described “group of concerned residents from the Houston area” who

“engage[d] in the political process” by forming a Texas nonprofit corporation to “provide education

and awareness [to] the general public on important civic and patriotic duties.” The Texas

Democratic Party claims King Street Patriots is a “political committee” that unlawfully accepts

“political contributions” and makes “political expenditures” as those terms are defined in the

Election Code. King Street Patriots firmly denies being a “political committee” or violating any

applicable law. But to the extent it is subject to regulation under the Election Code, King Street

Patriots contends certain statutory provisions impermissibly burden its constitutional rights,

including the right of political association. In the trial court, the parties took the unusual step of

obtaining an agreed order (1) deferring resolution of the Texas Democratic Party’s claims and King

Street Patriots’s as-applied constitutional challenges and (2) severing King Street Patriots’s facial

challenges to the Election Code for expedited adjudication.8 The former remain pending in the trial

court, while the latter are the subject of this appeal.

6
Joining as plaintiffs were Boyd L. Richie in his capacity as chairman of the Texas Democratic Party, and two
Democratic Party candidates in the 2010 general election, John W arren for Dallas County Clerk and Ann Bennett for
Harris County Clerk. W e refer to plaintiffs collectively as the “Texas Democratic Party.”

7
W e refer to King Street Patriots, Inc. and the individual defendants associated with the non-profit
corporation— Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs— collectively as the “King Street Patriots.”

8
Separate and apart from the facial challenges King Street Patriots asserted as counterclaims, King Street
Patriots asserted as-applied constitutional challenges as defenses to enforcement in its Original Answer.

3
 Following severance, the trial court found the challenged Election Code provisions facially

valid, and the court of appeals affirmed.9 Here, though the issues are more narrow in scope, King

Street Patriots continues to assail the constitutionality of Code provisions that (1) restrict corporate

contributions, (2) grant a private right of action, and (3) define political committees, campaign

contributions, and political contributions. As to the last of these, the Texas Solicitor General,

weighing in on the matter at our request, argues that if we properly construe the term “political

committee,” no constitutional infirmity exists and King Street Patriots does not fall within its ambit

because it is not a “political committee.”

Adhering to the United States Supreme Court’s decision in Federal Election Commission

v. Beaumont,10 as we are obliged to do,11 we conclude that legislatively enacted bans on corporate

political contributions are constitutional under the First Amendment. We also reaffirm, as we held

in Osterberg v. Peca, that the Legislature’s public policy choice to authorize a private right of action

passes constitutional muster.12 Though we further conclude the Election Code’s campaign

contribution and political contribution definitions are not unconstitutionally vague, we do not reach

King Street Patriots’s challenge to the Code’s political committee definitions because, as a prudential

matter, that issue is not ripe.

9
459 S.W .3d 631, 650 (Tex. App.— Austin 2014).

10
539 U.S. 146 (2003).

11
Owens Corning v. Carter, 997 S.W .2d 560, 571 (Tex. 1999) (holding “we are bound by [U.S. Supreme Court
precedent] unless and until the Supreme Court overrules it”).

12
12 S.W .3d 31, 48-49 (Tex. 2000).

4
 The parties’ agreement to sever King Street Patriots’s facial challenges from its as-applied

challenges is an unconventional procedural course. As a jurisprudential matter, we do not decide

constitutional questions when a dispute may be resolved otherwise. Moreover, under the hierarchy

of constitutional inquiry, “the usual judicial practice” is to determine an as-applied challenge before

addressing a facial challenge.13 In this case, adjudication of King Street Patriots’s facial challenge

to the political committee definitions is premature because the limited record before us establishes

King Street Patriots is not a political committee. We therefore hold King Street Patriots’s as-applied

challenges should be adjudicated before facial constitutionality of the political committee definitions

is determined. Accordingly, we affirm the court of appeals’ judgment in part, vacate the portions

of the lower courts’ judgments upholding the facial constitutionality of the political committee

definitions of the Texas Election Code, and remand to the trial court for further proceedings

consistent with this opinion.

I. Factual and Procedural Background

Under section 251.001(12) of the Texas Election Code, a “[p]olitical committee” is “a group

of persons that has as a principal purpose accepting political contributions or making political

expenditures.” King Street Patriots denies it meets this definition, arguing it merely “offered to train

anyone interested in serving as a poll watcher for any party or candidate” before the 2010 election,14

13
Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85 (1989).

14
King Street Patriots is not, however, a person or entity entitled to appoint poll watchers under Texas law.
See T EX . E LEC . C O D E §§ 33.001 (“‘W atcher’ means a person appointed under this subchapter to observe the conduct of
an election on behalf of a candidate, a political party, or the proponents or opponents of a measure.”), .002
(“Appointment by Candidate”), .003 (“Appointment by Political Party”), .004 (“Appointment for W rite-In Candidate”),
.005 (“Appointment for Election on Measure”).

5
trained several hundred people who “observed” the election as poll watchers “to help ensure that

election laws were followed,” and held weekly meetings on “topics of interest” to local “concerned

citizens.” King Street Patriots insists speakers at its weekly meetings “are strictly informed that King

Street Patriots is nonpartisan” and expressly prohibited from campaigning or promoting themselves

at these events. Though money is collected at the meetings, King Street Patriots says (1) the

collection process involves no more than passing around a cowboy hat, and (2) it “[has] not made

any monetary contributions to any candidate or politician.”

The Texas Democratic Party sued King Street Patriots after the 2010 election, alleging the

group is a “sham domestic nonprofit corporation” that “was explicitly created in an effort to make

and receive political contributions and to make political expenditures without complying with federal

or state disclosure laws” and is knowingly operated as “an unregistered and illegal political

committee.”

The Texas Democratic Party claims King Street Patriots’s Election Code violations include:

• making undisclosed and non-independent political expenditures from group
members’ contributions;

• training and assigning poll watchers “to polling locations in direct
coordination with and [at the] request of Republican Party and elected
officials”;

• designing, preparing, and implementing training materials for poll watchers,
which were used by the Travis County Republican Party and others;

• providing forums only for “Republican interests,” including “political rallies”
for the Governor and other Republican officeholders;

• holding statewide and nationwide “summit[s]” to impact the election; and

6
 • organizing events and making expenditures, in funds or in-kind, to press for
changes in the Election Code.15
The Texas Democratic Party seeks damages and injunctive relief under the Election Code,16 along

with declaratory relief.

In response, King Street Patriots brought counterclaims challenging the constitutionality of

several Election Code provisions, sought declaratory and injunctive relief barring the Texas

Democratic Party from enforcing those provisions, and requested reimbursement of its attorney’s

fees and costs .17 Among other complaints not at issue here, King Street Patriots asserted that myriad

provisions of the Texas Election Code, on their face, violate its rights under the First and Fourteenth

Amendments to the United States Constitution.18

In a Rule 11 Agreement, the parties agreed to (1) sever the counterclaims into a new cause

number in which “the only issue to be decided” would be “the [facial] constitutionality of the

15
The Texas Democratic Party alleged violations of Chapter 253 of the Texas Election Code, including sections
253.001 (prohibiting a “person” from knowingly making a political contribution or expenditure in another’s name),
253.002 (repealed in 2011, regarding unlawfully directing a campaign expenditure), 253.003 (prohibiting a “person”
from knowingly making or accepting a political contribution violating Chapter 253), 253.004 (prohibiting a “person”
from knowingly making a political expenditure violating Chapter 253), 253.005 (prohibiting a “person” from knowingly
making an expenditure from an unlawful contribution), 253.031 (prohibiting a “political committee” from knowingly
accepting a political contribution or making a political expenditure without appointing a campaign treasurer), 253.032
(prohibiting a “political committee” from accepting a contribution over $500 from an out-of-state committee), 253.094
(prohibiting a “corporation” from making an unauthorized political contribution), and 253.104 (prohibiting a
“corporation” from knowingly making a contribution to a political party during a proscribed period). The Texas
Democratic Party also alleged a failure to comply with the recordkeeping and reporting requirements Chapter 254
imposes on political committees.

16
T EX . E LEC . C O D E §§ 253.131-.132, 273.081.

17
Id. §§ 253.131(e), .132(c). King Street Patriots also invoked a federal civil-rights provision, 28 U.S.C.
§ 1988, and “any other” applicable authority.

18
King Street Patriots asserted facial constitutional challenges under the United States Constitution to Texas
Election Code sections 251.001(2), (10), (12), (13), (14); 253.031(c); 253.037(a)(1) and (b); 253.062 (repealed in 2011);
253.094; 253.097 (repealed in 2011); 253.104; 253.131; 253.132; and 273.081.

7
applicable statutes,” and (2) abate the original action pending disposition of the severed action. As

to the claims in the severed proceeding, the parties stipulated to the following facts:

King Street Patriots, during and in advance of the 2010 General Election for State
and County Officers, conducted, at its own expense, a training and recruitment
program for poll watchers. Many of these . . . poll watchers [that King Street Patriots
located and trained] were subsequently appointed to serve under Texas Election Code
§§ 32.002-003 by the Harris County Republican Party Chairman and/or Republican
Nominees with regard to the 2010 General Election for State and County Officers[.]

The parties further stipulated that the Texas Democratic Party intends to “us[e] the private right of

action” in Election Code sections 273.081, 253.131, and 253.132 to enforce the challenged statutes

against King Street Patriots “based on alleged political speech.”

In the severed action, the parties litigated the constitutional issues in cross-motions for

summary judgment. King Street Patriots’s motion, which was unsupported by evidence, assailed the

challenged provisions as facially unconstitutional and unenforceable as a matter of law. Arguing the

statutes are facially constitutional, the Texas Democratic Party supported its summary-judgment

motion with affidavits, documents, and videos.

The trial court denied King Street Patriots’s summary-judgment motion and granted the

Texas Democratic Party’s motion, finding no constitutional infirmity. The court of appeals

affirmed,19 and King Street Patriots petitioned this Court for review.

19
459 S.W .3d 631, 650 (Tex. App.— Austin 2014).

8
 Narrowing its focus and dropping contentions asserted in the courts below,20 King Street

Patriots limits its constitutional attack here to Election Code provisions (1) “banning” corporate

contributions (sections 253.091 and 253.094), (2) creating a private right of action (sections 253.131

and 253.132), (3) defining political committees subject to regulation (section 251.001(12), (13), (14))

and (4) defining political contributions (section 251.001(3), (5)). Recognizing the State’s interest

in the validity of its laws, we requested the Texas Solicitor General’s views on the constitutional

issues presented.

II. Prudential Ripeness

Before turning to the merits, we consider the Texas Solicitor General’s argument that, as a

threshold matter, King Street Patriots does not, on the record before the Court, qualify as a political

committee under the Election Code’s plain language. Although the parties did not specifically

address this issue in the lower courts, King Street Patriots’s status as a political committee is relevant

to deciding whether, as a prudential matter,21 we should entertain its facial-invalidity challenges to

the Election Code’s political committee definitions.22

20
King Street Patriots disavows any intent to seek review of holdings disposing of its Fourth and Eighth
Amendment issues, “prior restraint” arguments, and complaints about so-called blackout provisions applicable when
political committees fail to timely file a campaign treasurer appointment. Nor has King Street Patriots carried forward
its complaints about the Code’s “expenditure” definition and the statutory limits on corporate expenditures. W ith respect
to the Election Code’s “campaign contribution” and “political contribution” definitions, King Street Patriots limits its
appellate complaints to vagueness arising from alleged circularity of the definitions’ constituent components and use of
“intent” as a key term.

21
See Nat’l Park Hosp. Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003) (“The ripeness doctrine is drawn
both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction, but,
even in a case raising only prudential concerns, the question of ripeness may be considered on a court’s own motion.”
(emphasis added) (citation and quotation marks omitted)); see also Heckman v. Williamson Cty., 369 S.W .3d 137, 154
(Tex. 2012) (noting that Texas’s standing doctrine “parallels the federal test for Article III standing”).

22
T EX . E LEC . C OD E § 251.001(12)–(14).

9
 Under Section 251.001(12), a “political committee” is “a group of persons that has as a

principal purpose accepting political contributions or making political expenditures.” A “[p]olitical

contribution” is “a campaign contribution or an officeholder contribution,” and a “[p]olitical

expenditure” is “a campaign expenditure or an officeholder expenditure.”23

The Election Code defines a “[c]ampaign contribution” as “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,”24 and an “officeholder contribution” is “a contribution

to an officeholder or political committee . . . offered or given with the intent that it be used to defray

expenses . . . incurred by the officeholder in performing a duty or engaging in an activity in

connection with the office.”25 “Campaign expenditure” and “[o]fficeholder expenditure” are

analogously defined.26 In Osterberg v. Peca, we narrowly construed the statutory definition of

“[d]irect campaign expenditure”27 to avoid vagueness and overbreadth concerns, holding that term

23
Id. § 251.001(5), (10).

24
Id. § 251.001(3).

25
Id. § 251.001(4).

26
A “[c]ampaign expenditure” is “an expenditure made by any person in connection with a campaign for an
elective office or on a measure” and an “[o]fficeholder expenditure” is “an expenditure made by any person to defray
expenses that are incurred by an officeholder.” Id. § 251.001(7), (9).

27
The Code defines “[d]irect campaign expenditure” as “a campaign expenditure that does not constitute a
campaign contribution by the person making the expenditure.” Id. § 251.001(8).

10
refers only to those expenditures that “‘expressly advocate’ the election or defeat of an identified

candidate.”28

Considering the foregoing, a group is a “[p]olitical committee” if it has a principal purpose

of accepting contributions given to the group with the intent that those contributions be used in

connection with a campaign for elective office or on a measure or to defray expenses of

officeholders.29 And under Osterberg, a group is subject to regulation as a political committee if it

has a principal purpose of making expenditures to expressly advocate for a particular outcome in an

election.30

King Street Patriots maintains it has taken no actions that would make it a political

committee, as defined in the Election Code,31 and specifically denies making any political

contributions or expenditures,32 including expenditures expressly advocating a particular election

28
12 S.W .3d 31, 51 (Tex. 2000) (holding that a “‘direct campaign expenditure’ by an individual in a candidate
election includes only those expenditures that ‘expressly advocate’ the election or defeat of an identified candidate”),
citing Op. Tex. Ethics Comm’n No. 198 (1994) (limiting the Election Code’s “campaign expenditure” definition to
expenditures for a communication that “‘expressly advocates’ the defeat or election of an identified candidate, as that
term has been used by the United States Supreme Court”); see also 1 T EX . A D M IN . C O D E § 20.1(21)(A)(i), (B)(i); Fed.
Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 248 (1986); Buckley v. Valeo, 424 U.S. 1, 80 (1976).

29
A direct contribution to a candidate, officeholder, or political committee is not an independent expenditure.
See Buckley, 424 U.S. at 46-48.

30
W e note, however, that Osterberg’s express-advocacy requirement applies only to the term “direct campaign
expenditure.” See 12 S.W .3d at 51; see also T EX . E LEC . C O DE § 251.001(8).

31
At oral argument, King Street Patriots was more equivocal, stating a belief that it is not a political action
committee under federal law but expressing uncertainty about whether it is a political committee under the Texas Election
Code.

32
King Street Patriots claims it makes “neither direct contributions nor indirect contributions” as those terms
are defined under federal law in Buckley. See 424 U.S. at 23 n.24 (“Funds 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.”).

11
outcome. Although the Texas Democratic Party sued King Street Patriots claiming the entity is a

political committee and a “sham” corporation, the record is silent as to whether those donating to

King Street Patriots do so with the intent that their donations be used to defray officeholder expenses

or used in connection with a measure or a campaign for elective office. Nor is there evidence that

King Street Patriots has a principal purpose of accepting such contributions. King Street Patriots

insists it provides training for poll watchers and speaker forums on a nonpartisan basis. It claims

speakers at its weekly meetings discuss only “topics of interest” to local “concerned citizens,” and

speakers “are strictly informed that King Street Patriots is nonpartisan and . . . politicians are not to

campaign or promote themselves.”33 Although the Texas Democratic Party claims King Street

Patriots violated the Texas Election Code by training and assigning poll watchers “to polling

locations in direct coordination with and [at the] request of Republican Party and elected officials”

and providing forums only for “Republican interests,” these allegations, even when coupled with the

available summary-judgment evidence, are insufficient for us to determine whether the activities

constitute a principal purpose of the group. Absent other evidence, King Street Patriots could not

be a political committee because it would not have “a principal purpose [of] accepting political

contributions or making political expenditures.”34

Our conclusion that, on the limited record before us, King Street Patriots is not a political

committee, has left us in a procedural quagmire. We are asked to strike down provisions of a Texas

33
Cf. T EX . E LEC . C O D E § 251.008 (providing that meeting expenses incurred by certain political clubs in hosting
candidates and officeholders are not considered political contributions or political expenditures “if no political
contributions are made to or solicited for the candidate or officeholder at the meetings”).

34
Id. § 251.001(12).

12
statute with the “strong medicine”35 of the “disfavored”36 facial overbreadth doctrine by a party

against whom those provisions likely do not apply. The parties’ agreement to sever King Street

Patriots’s facial challenges to the Texas Election Code from the remaining issues in the case is the

primary reason for the muddled procedural posture we now face.

“It is not the usual judicial practice . . . nor do we consider it generally desirable, to proceed

to an overbreadth issue unnecessarily—that is, before it is determined that the statute would be valid

as applied.”37 As the United States Supreme Court has explained, “[s]uch a course would convert

use of the overbreadth doctrine from a necessary means of vindicating the plaintiff’s own right not

to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale

attacks upon state and federal laws.”38 We agree with the Supreme Court that “for reasons relating

both to the proper functioning of courts and to their efficiency, the lawfulness of the particular

application of the law should ordinarily be decided first.”39

We thus refrain from considering King Street Patriots’s challenges to the political committee

definitions under subsections 251.001(12), (13), and (14) of the Texas Election Code because as-

35
Comm’n for Lawyer Discipline v. Benton, 980 S.W .2d 425, 436 (Tex. 1998) (quoting New York v. Ferber,
458 U.S. 747, 769 (1982)).

36
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008) (“Facial challenges are
disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the
risk of premature interpretation of statutes on the basis of factually barebones records.” (citation and quotation marks
omitted)).

37
Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85 (1989).

38
Id. at 485.

39
Id.

13
applied constitutional challenges remain pending in the abated action and discovery directed to a

threshold legal and prudential matter either has not yet occurred40 or, if it has occurred, establishes

King Street Patriots is not a political committee.41 The State’s jurisprudential interests are not

furthered by allowing a facial challenge to the political committee definitions when both this Court

and the Solicitor General have concluded, on the record before us, that King Street Patriots does not

fall within those definitions. As a prudential matter, we will not consider challenges to the political

committee definitions under these circumstances. Because we have determined King Street

Patriots’s challenges to the political committee definitions are not prudentially ripe, the portions of

the lower courts’ judgments upholding the facial constitutionality of these definitions are

impermissible advisory opinions.42

40
See Pub. Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 113 (1962) (“These are delicate problems; their
solution is bound to have far-reaching import. Adjudication of such problems, certainly . . . should rest on an adequate
and full-bodied record. The record before us is woefully lacking in these requirements.”).

41
See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 300 (1979) (“Even though a challenged
statute is sure to work the injury alleged . . . adjudication might be postponed until a better factual record might be
available.” (citation and quotation marks omitted)); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 143 (1974)
(“[T]here are situations where, even though an allegedly injurious event is certain to occur, the Court may delay
resolution of constitutional questions until . . . a better factual record might be available.”); see also Kiser v. Reitz, 765
F.3d 601, 607 n.2 (6th Cir. 2014) (calling “fitness of the record for review” a matter of “prudential ripeness” (citation
and quotation marks omitted)). But see Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386
(2014) (“[A] federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.”
(punctuation and quotation marks omitted)).
Although the Supreme Court recently questioned prudential standing in the context of the zone-of-interests test
at issue in Lexmark, “[i]t is highly doubtful that [many important doctrinal principles, including prudential ripeness, are]
to go by the wayside in the wake of Lexmark. Judges have always formulated rules for the decision of cases that
constrain their powers more narrowly than external sources—constitutional and statutory jurisdictional
provisions— would permit.” Ernest A. Young, Prudential Standing After Lexmark International, Inc. v. Static Control
Components, Inc., 10 D UKE J. C O N ST . L. & P U B . P O L ’Y 149, 163 (2014).

42
See Waco Indep. Sch. Dist. v. Gibson, 22 S.W .3d 849, 853 (Tex. 2000) (noting “[t]he ripeness doctrine
prevents premature adjudication of hypothetical or contingent situations” and a decision ruling on an unripe issue would
constitute an “impermissible advisory opinion”).

14
 Similar prudential concerns do not exist with respect to King Street Patriots’s challenges to

the Election Code provisions that regulate the activities of corporations, which manifestly apply to

King Street Patriots. Accordingly, we consider the merits of those claims below.

III. Private Right of Action

In Osterberg v. Peca, we upheld the Legislature’s choice to authorize a limited private right

of action to enforce Election Code provisions.43 The Texas Democratic Party contends, and the

Solicitor General agrees, that Osterberg is dispositive of King Street Patriots’s challenges to Election

Code sections 253.131 and 253.132. King Street Patriots maintains Osterberg is neither controlling

nor dispositive. First, King Street Patriots argues Osterberg is distinguishable because it concerned

an enforcement action brought only by a single claimant and sections 253.131 and 253.132 create

the potential for constitutionally excessive damages by allowing “an unlimited number of private

parties to sue” based on the same violations. Second, King Street Patriots argues the private-right-

of-action provisions are unconstitutional because plaintiffs are permitted to sue alleged

violators—and pursue discovery—without a predicate showing that a claim is meritorious, which

Osterberg does not address. We reject King Street Patriots’s arguments and thus uphold the facial

constitutionality of Election Code sections 253.131 and 253.132.44

43
12 S.W .3d 31, 48-49 (Tex. 2000) (rejecting claims that section 253.131 of the Election Code is
unconstitutional and not narrowly tailored to serve a compelling state interest because it allows an opposing candidate
to bring suit).

44
In its briefing, King Street Patriots also challenges section 273.081, which authorizes injunctive relief, but
asserts in a footnote that it “seek[s] no review here of [the lower court’s] holding that this law is not a prior restraint.”
Because King Street Patriots does not otherwise discuss section 273.081, we cannot discern a basis for its challenge to
the provision. Accordingly, we do not address it.

15
 We first consider King Street Patriots’s arguments that the enforcement provisions lack a

constitutional essential: a minimal evidentiary threshold to institute a private enforcement action.

Arguing the burdens of discovery are “chilling,” King Street Patriots contends the Code’s failure to

“delineate the showing necessary to seek discovery” effectively denies meaningful protection of a

citizen’s First Amendment associational rights. King Street Patriots also argues the absence of

standards for initiating a suit and seeking discovery violates its due process rights under the

Fourteenth Amendment.

While the Election Code does not specifically prescribe standards for limiting discovery or

addressing the burdens of litigating meritless claims, procedural safeguards exist in the Texas Rules

of Civil Procedure and elsewhere. With regard to discovery burdens, our civil procedure rules limit

discovery if “the burden or expense of the proposed discovery outweighs its likely benefit, taking

into account the needs of the case, the amount in controversy, the parties’ resources, the importance

of the issues at stake in the litigation, and the importance of the proposed discovery in resolving

those issues.”45 Further, trial courts “must make an effort to impose reasonable discovery limits”46

and may issue protective orders to avoid unduly burdening constitutional rights of free association

and free speech.47

45
T EX . R. C IV . P. 192.4(b); see In re State Farm Lloyds, 2017 WL 2323099, at *6, ___ S.W .3d ___, ___ (Tex.
2017) (orig. proceeding).

46
In re CSX Corp., 124 S.W .3d 149, 152 (Tex. 2003) (orig. proceeding).

47
See, e.g., Buckley v. Valeo, 424 U.S. 1, 66-68 (1976); In re Bay Area Citizens Against Lawsuit Abuse, 982
S.W .2d 371, 375-76 (Tex. 1998) (orig. proceeding).

16
 Moreover, claims lacking genuine merit may be resolved expeditiously under Rule 91a’s

dismissal procedures or summarily under Rule 166a.48 An important additional safeguard is the trial

court’s ability under Rule 13 to impose sanctions against attorneys and parties who file pleadings

or motions that are groundless and brought in bad faith or for the purpose of harassment.49 The

Election Code itself provides another ameliorative measure, which King Street Patriots has already

invoked by counterclaim: reimbursement of reasonable attorney’s fees “if judgment is rendered in

the defendant’s favor.”50

Concluding that adequate procedural safeguards exist both within the Election Code and via

other established mechanisms, we hold the Election Code is not constitutionally defective because

it lacks evidentiary prerequisites to a private enforcement action.

In Osterberg, we expressly left open “the issue of whether punishment for reporting

violations can rise to the level of being so severe and so extreme that it amounts to an

unconstitutional infringement of rights under the First Amendment.”51 There, the damages were

potentially large, but the Osterbergs did not challenge the statutorily authorized damages on First

Amendment grounds.52 King Street Patriots does not take up this thread, however. Rather than

48
T EX . R. C IV . P. 91a, 166a.

49
T EX . R. C IV . P. 13; see also T EX . C IV . P RAC . & R EM . C O D E §§ 9.001–10.006 (governing sanctions for
frivolous pleadings, claims, and motions).

50
T EX . E LEC . C OD E §§ 253.131(e), .132(c).

51
12 S.W .3d 31, 49 n.24 (Tex. 2000).

52
Id. Damages are calculated at “twice the value of the unlawful contribution or expenditure” plus “reasonable
attorney’s fees incurred in the suit.” T EX . E LEC . C O D E §§ 253.131(d), .132(b).

17
framing its challenge in terms of the severity of the potential damages in a privately instituted action,

King Street Patriots argues Election Code sections 253.131 and 253.132 would allow “an unlimited

number of private parties to sue.”53 King Street Patriots’s complaint could be construed as asserting

that too many people may be able to sue for the same violations or that a damages cap is

constitutionally necessary in this context.

However the argument may be viewed, King Street Patriots is correct that sections 253.131

and 253.132 could allow more than one private party to sue, though the number would hardly be

“unlimited.” A case involving an improper contribution in opposition to a candidate, as in

Osterberg, would have only one possible claimant—the candidate who was opposed. A case

involving a contribution made in support of a candidate could have multiple “opposing candidates”

authorized to sue, but only so many as appeared on the ballot.

While a case involving a contribution to a political committee is not necessarily as limited,

viewing the number of potential plaintiffs as “unlimited” would require us to ignore the jurisdictional

53
Section 253.131 provides:

(a) A person who knowingly makes or accepts a campaign contribution or makes a campaign
expenditure in violation of this chapter is liable for damages as provided by this section.

(b) If the contribution or expenditure is in support of a candidate, each opposing candidate whose
name appears on the ballot is entitled to recover damages under this section.

(c) If the contribution or expenditure is in opposition to a candidate, the candidate is entitled to recover
damages under this section.

Section 253.132(a) provides:

A corporation or labor organization that knowingly makes a campaign contribution to a political
committee . . . in violation of Subchapter D [§§ 253.091–.104] is liable for damages as provided by
this section to each political committee of opposing interest in the election in connection with which
the contribution or expenditure is made.

18
constraint of standing and “imagine” unrealistic hypothetical scenarios, which a facial challenge does

not allow.54 Texas is home to a lot of political committees.55 But even though Texas election

statutes have included a provision granting a private right of action against corporations since 1951,56

there have been only a handful of suits since.

To successfully mount a claim under the Election Code, a potential plaintiff would have to

prove it was a political committee with an “opposing interest in the election in connection with

which the contribution [] was made.”57 A political committee supporting a measure might be

matched with multiple political committees opposing that measure. Or none. If the donation was

made to a political committee supporting a candidate, or multiple candidates, an alleged violation

might trigger a claim by all committees opposing any one or all of those candidates. On the other

hand, if candidates share political committees, there may be fewer committees than there are

54
Comm’n for Lawyer Discipline v. Benton, 980 S.W .2d 425, 436 (Tex. 1998) (“[A] statute will not be
invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications.” (citing Members
of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984) (requiring a “realistic danger that the statute itself
will significantly compromise recognized First Amendment protections of parties not before the Court”))); see also Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50 (2008) (“In determining whether a law is facially
invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or
‘imaginary’ cases.”).

55
There are currently around 1,900 active political committees registered in Texas; the number has been
re la tiv e ly stab le since 2 0 1 1 . S e e T E X . E T H IC S C O M M ’N , P O L IT IC A L C O M M . L IS T S ,
https://www.ethics.state.tx.us/dfs/paclists.htm (last visited June 30, 2017). The website does not include numbers from
before 2010, the year the Citizens United decision issued.

56
Act of May 30, 1951, 52d Leg., R.S., ch. 492, § 1, 1951 Tex. Gen. Laws 1097, 1190 [HB 6] (codified as
former T EX . E LEC . C OD E § 14.07(b)) (“Any corporation making or promising a gift, loan, or payment to any candidate,
campaign manager, assistant campaign manager, or other person in violation of Paragraph (a) of this Section shall be
civilly liable for double the amount or value of such loan or gift, promised or made, to each opponent of the candidate
favored by such gift, loan, or payment, or to the particular candidate or candidates opposed by such gift, loan, or
payment.”).

57
T EX . E LEC . C O D E § 253.132(a). Plaintiffs also risk, if they lose, an award of attorney’s fees. Id. § 253.132(c).

19
candidates on the ballot. Here, the plaintiffs include only one political committee and two

candidates.

The fear that a horde of claimants could assert multiple claims based on the same violations

and extract a cumulatively excessive sum from that defendant is daunting. But we do not invalidate

statutes “for overbreadth merely because it is possible to imagine some unconstitutional

applications.”58 Claims of facial invalidity often rest on speculation; that is one of the reasons such

claims are disfavored.59 We should not speculate about “hypothetical” or “imaginary” cases.60

Facial challenges are also disfavored because they “threaten to short circuit the democratic process

by preventing laws embodying the will of the people from being implemented in a manner consistent

with the Constitution.”61 King Street Patriots may yet be able to show that the damages sought

against it are excessive, but has not established the statute is facially invalid.

IV. Ban on Corporate Contributions

Election Code section 253.094 generally prohibits corporations from making political

contributions:

(a) A corporation or labor organization may not make a political contribution or
political expenditure that is not authorized by this subchapter.

58
Benton, 980 S.W .2d at 436 (citing Members of City Council, 466 U.S. at 800).

59
Wash. State Grange, 552 U.S. at 450; see also Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580
(1998) (“Facial invalidation ‘is, manifestly, strong medicine’ that ‘has been employed by the Court sparingly and only
as a last resort.’” (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973))).

60
Wash. State Grange, 552 U.S. at 449-50 (citing U.S. v. Raines, 362 U.S. 17, 22 (1960)).

61
Id. at 451.

20
 (b) A corporation or labor organization may not make a political contribution or
political expenditure in connection with a recall election, including the circulation
and submission of a petition to call an election.

(c) A person who violates this section commits an offense. An offense under this
section is a felony of the third degree.62

Section 253.091 applies these contribution restrictions “only to corporations that are organized under

the Texas Business Corporation Act, the Texas For-Profit Corporation Law, the Texas Non-Profit

Corporation Act, the Texas Nonprofit Corporation Law, federal law, or law of another state or

nation.”63

Section 253.094’s current incarnation reflects a 2011 amendment that removed a limitation

on political expenditures in response to the United States Supreme Court’s decision in Citizens

United v. Federal Election Commission.64 Restrictions on corporate political contributions remained

intact, however, presumably because the Supreme Court’s Citizens United decision did not overturn

its earlier holding in Federal Election Commission v. Beaumont that laws barring corporate political

contributions are “consistent with the First Amendment” and are not subject to strict scrutiny.65

62
T EX . E LEC . C OD E § 253.094.

63
Id. § 253.091.

64
558 U.S. 310, 359 (2010).

65
Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 149 (2003); see also Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 359 (2010) (“Citizens United has not made direct contributions to candidates, and it has not
suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment
scrutiny.”).

21
 Advocating for an expansion of Citizens United, King Street Patriots challenges the facial

constitutionality of the Texas Election Code’s corporate contribution restrictions on the basis that

post-Beaumont Supreme Court decisions undermine that precedent’s continued vitality.66

The Texas Democratic Party and the Solicitor General stress that Beaumont (1) establishes

the First Amendment does not prohibit a governmental ban on direct corporate contributions to

candidates and (2) remains binding Supreme Court precedent.67 We concur. Only the Supreme

Court has the “prerogative . . . to overrule one of its precedents.”68 Thus even if Beaumont’s

rationale is in doubt, we are bound to follow it unless and until the Supreme Court overrules it.69

Our unanimous acknowledgment that Beaumont is binding Supreme Court precedent terminates our

inquiry.70 As the Supreme Court has admonished, any further examination is “wrong,” even

querying whether subsequent authority impugns its continued vitality.71 Our role is simply to “say

what the law is,”72 not prognosticate how the law could change. Applying Beaumont, we conclude

sections 253.091 and 253.094 of the Texas Election Code are not unconstitutional.

66
See, e.g., Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 879 n.12 (8th Cir. 2012) (noting
that “Citizens United’s outright rejection of the government’s antidistortion rationale . . . casts doubt on Beaumont,
leaving its precedential value on shaky ground,” but following Beaumont as controlling precedent).

67
See Beaumont, 539 U.S. at 149.

68
Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016).

69
See Owens Corning v. Carter, 997 S.W .2d 560, 571 (Tex. 1999).

70
Bosse, 137 S. Ct. at 2.

71
Id.

72
Marbury v. Madison, 5 U.S. 137, 177 (1803).

22
 V. Vagueness of Statutory Definitions

King Street Patriots argues the campaign contribution and political contribution definitions

in section 251.001 of the Texas Election Code are unconstitutionally vague because they are circular

and employ an intent-based standard. With regard to circularity, King Street Patriots notes that:

• “campaign contribution” is defined as a contribution to a “political
committee”;

• “political committee” is a group that has accepting “political contributions”
as a principal purpose; and

• “political contribution” is defined as a “campaign contribution.”73

King Street Patriots complains that circular definitions are “not especially helpful.”74

The definition of campaign contribution is also tied to the intent with which a contribution

is offered or given. Relying on United States Supreme Court precedent that “[a]n intent-based

standard ‘blankets with uncertainty whatever may be said,’ and ‘offers no security for free

discussion,’”75 King Street Patriots argues the Texas Election Code’s campaign-contribution

definition is hopelessly vague.76

73
See T EX . E LEC . C O D E § 251.001(2), (3), (5), (12).

74
See Bilski v. Kappos, 561 U.S. 593, 622 (2010).

75
Fed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 468 (2007) (quoting Buckley v. Valeo, 424
U.S. 1, 43 (1976)).

76
T EX . E LEC . C O D E § 251.001(3) (“‘Campaign contribution’ means 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. W hether a contribution is made before, during, or after an election does not affect its status as a campaign
contribution.” (emphasis added)).

23
 When persons of common intelligence are compelled to guess a law’s meaning and

applicability, the law violates due process and is invalid.77 But to succeed in a facial due process

challenge “the complainant must demonstrate that the law is impermissibly vague in all of its

applications.”78 If a “law interferes with the right of free speech or of association, a more stringent

vagueness test should apply”79 because “[u]ncertain meanings inevitably lead citizens to steer far

wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.”80

The Texas Court of Criminal Appeals addressed similar complaints about the Election

Code’s intent-based political- and campaign-contribution definitions in Ex parte Ellis. Applying

Supreme Court guidance, the Ellis court said “the practical difficulty a factfinder may have in

ascertaining intent does not render a law unconstitutionally vague.”81 We agree the challenged

definitions are not unconstitutionally vague merely because they are intent-based.

We also reject Kings Streets Patriots’s argument that the definitions are circular and, thus,

vague. When the component definitions are embedded into one another, we discern no uncertainty

of meaning: “campaign contribution” is “a [direct or indirect transfer of money, goods, services, or

any other thing of value] to a candidate or [a group of persons that has a principal purpose of

77
See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

78
Vill. of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982).

79
Id. at 499.

80
Grayned, 408 U.S. at 109 (punctuation and citations omitted).

81
309 S.W .3d 71, 89 (Tex. Crim. App. 2010).

24
accepting (campaign or officeholder) contributions].”82 The indirect reference to “campaign

contribution” within the definition of “campaign contribution” is not circular because it is used only

to reference a group’s “principal purpose,” not the essence of the defined term. Persons of common

intelligence are not compelled to guess at the meaning and applicability of the political- and

campaign-contribution definitions; accordingly, they are not void for vagueness.

VI. Conclusion

Because we lack power to overturn United States Supreme Court precedent, we uphold the

Texas Election Code’s restrictions on corporate contributions. We further hold the Code’s

definitions of “campaign contribution” and “political contribution” are neither circular nor

unconstitutionally vague, and we will not disturb the Texas Legislature’s policy preferences reflected

in the private rights of action provisions of the Code. Although the parties invite us to review the

merits of King Street Patriots’s facial challenges to the Code’s political committee definitions, we

decline in light of our view, which the Texas Solicitor General shares, that King Street Patriots is

not a political committee on the record before us. Absent other evidence, that conclusion would be

fatal to the Texas Democratic Party’s claims. Thus, making a determination of facial

constitutionality is premature and prudentially unripe. Accordingly, we affirm the court of appeals’

judgment in part, vacate the portions of the lower courts’ judgments upholding the facial

constitutionality of the political committee definitions of the Texas Election Code, and remand the

case to the trial court for further proceedings consistent with this opinion.

82
T EX . E LEC . C OD E § 251.001(2), (3), (5), (12).

25
 ___________________________
Eva M. Guzman
Justice

OPINION DELIVERED: June 30, 2017

26