Osterberg v. Peca

Justice GONZALES,

concurring.

I withdraw my July 29, 1999 concurring opinion and substitute the following.

I agree with the Court that the Texas Election Code’s direct-campaign-expenditure disclosure requirements, with the exception of the in-concert provision, survive the Osterbergs’ specific constitutional challenges. This Court appropriately rejects the Osterbergs’ argument that the Election Code’s approach to regulation — which begins with a rule generally forbidding direct campaign expenditures but makes that rule subject to specified exceptions— is facially unconstitutional.

*57The Court also correctly concludes that section 253.131(a) of the Election Code allows persons to be held civilly liable for violating the reporting requirements without proof that they knew they were breaking the law. On its face, section 253.131(a) is ambiguous.1 It could be read to require proof that the person making the campaign contributions or expenditures knew that failing to report them violated the Election Code before civil liability could attach. However, as the Court properly advises, our primary aim is to give effect to the Legislature’s intent.2 And as the Court points out, the Legislature demonstrated in two other sections of the Election Code that it clearly knew how to require that the actor have knowledge of the Election Code before being charged with a violation. The Court’s construction is further supported by the fact that sections 253.003(b), 253.005(a), and 253.131(a) were all amended in the 1987 revision of the Election Code.3

I write separately, however, for three reasons. First, I would elaborate on the reasons why section 253.131(a) does not offend First Amendment guarantees of free speech, even though it allows a civil suit for damages for failure to report a campaign expenditure without requiring the plaintiff to prove the defendant knew about the specific reporting requirement. Second, I disagree with the plurality’s and dissent’s respective evaluations of the significance of the United States Supreme Court’s decision in United States v. X-Citement Video, Inc.4 Third, while I conclude section 253.131(a) is constitutional, I note my concern that Chapter 253 raises other constitutional concerns not challenged in this case.

A.

The Court correctly concludes that Chapter 253 imposes constitutionally permissible reporting requirements, not a ban or ceiling on expenditures. But enforcing the reporting requirements also must not offend the First Amendment. When the Court states that Peca need not prove the Osterbergs’ subjective knowledge of electoral laws, it necessarily implies that the Constitution does not require that a person know he is violating the election laws before being punished. The Court’s opinion states that section 253.131(a) does not violate the Osterbergs’ First Amendment rights because the statute does not prevent them from making campaign expenditures.5 Then the opinion concludes that the statute merely requires the Osterbergs to report their expenditures, and that reporting requirements comport with the constitutional guidelines established in Buckley v. Valeo6 and McIntyre v. Ohio Elections Commission.7

But the issue here is not merely whether Chapter 253 prevents the Osterbergs from *58making a campaign expenditure. More than that, the issue is whether the Court’s construction of section 253.131(a), which allows a penalty for a violation of Chapter 253 whether or not an individual knows of the duty to report, is constitutional. While section 253.131(a) does not directly constrain speech, under the Court’s construction, it can impact speech. Imposing liability on an unknowing violator has the indirect effect of penalizing core First Amendment speech.

In Buckley v. Valeo, the Supreme Court evaluated the constitutionality of campaign expenditure limits and reporting requirements.8 The Supreme Court, however, did not consider the constitutionality of the enforcement of the reporting requirements. Thus, Buckley does not fully answer whether the Constitution allows this particular burden on speech.

In McIntyre v. Ohio Elections Commission, the Supreme Court considered an Ohio statute that prohibited the distribution of anonymous campaign literature.9 A person was fined under that statute for distributing anonymous leaflets that opposed a local tax proposal.10 The Supreme Court concluded that the statute was unconstitutional, however, it noted that these disclosure requirements rested on different and less powerful state interests than the state interests in campaign expenditure reporting.11 Thus, McIntyre, like Buckley, does not fully dispose of the question before us.

The dissent’s analysis is likewise incomplete. The dissent contends that the Court’s application of the statute, punishing the Osterbergs solely for engaging in core First Amendment activity, without more, is unconstitutional. But direct limitations on speech can be constitutional if the limitation is content neutral and survives the appropriate standard of scrutiny.12 As the Supreme Court has stated, “It has been clear since this Court’s earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest.” 13 Even when the primary effect of a content-neutral law is to restrict core First Amendment speech, the Supreme Court has held the constitutionality of the restriction “turns on whether the governmental interests advanced in [the restriction’s] support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.” 14 Thus, the “something more” that the dissent apparently seeks and the Constitution requires is a substantial state interest in the limitation on speech. But rather than comparing the state interest here with the impact on speech, the dissent simply concludes without further analysis that this application must be unconstitutional.

Although the current Federal Election Campaign Act and several state reporting statutes impose liability for failing to report campaign expenditures, whether such liability can be enforced in the absence of the actor’s knowledge appears to be an issue of first impression. The federal reporting statute imposes liability for both knowing and unknowing failures to report campaign expenditures.15 Thirteen states *59in addition to Texas require individuals making campaign expenditures to file reports with the state. Seven states impose liability for non-reporting under statutes that contain no express scienter requirement.16 The other six states have an express knowing term in their reporting statute.17 Of those six, the Missouri and Delaware statutes most closely resemble section 258.131(a). The Delaware statute states, “Any person who knowingly accepts or knowingly makes an unlawful contribution or expenditure in violation of any provision of subchapter II or III of this title shall be guilty of a class A misdemeanor.” 18 But we are unaware of any decision construing this provision.

The Missouri statute provides that “[a]ny person who knowingly accepts or makes a contribution or makes an expenditure in violation of any provision of this chapter ... may be held liable to the state in civil penalties in twice the amount of any such contribution or expenditure, not to exceed a total amount of five thousand dollars.”19 The statute also provides that “any person who purposely violates the provisions of this chapter is guilty of a class A misdemeanor.”20 One court recently construed this provision to require the state to prove that the defendant purposely violated the statute, not merely that he engaged in purposeful acts that violated the statute.21 The remaining four states that have a knowing requirement in their reporting statute require proof of a knowing violation of the reporting requirement, not merely proof of a knowing act that violates the statute.22

Although I am unaware of any decision upholding a statute imposing liability for an unknowing violation of a reporting requirement, we are not entirely without guidance. The Supreme Court has articulated that a statute is constitutional unless every application of the statute violates the First Amendment or unless the statute is substantially overbroad so as to create a realistic danger that the statute itself will significantly compromise recognized First Amendment protections.23

I would evaluate whether section 253.131(a) has a constitutional application, by turning to the principles articulated in *60Buckley. In that ease, the Supreme Court explained that campaign expenditures operate in an area of the most fundamental First Amendment activities.24 Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.25 Thus, a limitation on this core First Amendment speech will be constitutional only if the limitation passes exacting scrutiny as articulated in Buckley. In other words, the limitation must bear a sufficient relationship to a substantial state interest.26

Buckley recognized three substantial governmental interests in requiring disclosure of campaign expenditures.27 The state’s interest in enforcing its disclosure requirements are the same here. First, independent expenditure disclosure furthers the state’s effort to achieve total disclosure by reaching every kind of political activity in order to ensure voters are fully informed. This informational interest helps voters to ascertain more of the candidates’ constituencies. Second, disclosure plays a part in the state’s attempt to deter corruption and undue influence through publicity. Third, the provision responds to the legitimate fear that efforts would be made, as they have in the past, to avoid the disclosure requirements by financially supporting candidates through avenues not explicitly covered by the other provisions of the statute. Thus, independent expenditure disclosure compliments the general disclosure requirements by shedding the light of publicity on unambiguously campaign-related spending that would not otherwise be reported.

I would determine whether section 253.131(a) bears a sufficient relationship to these substantial government interests by considering section 253.131(a)’s impact on speech. In doing so, I recognize the difficulty in ascertaining how section 253.131(a) impacts speech differently from the impact the reporting requirements themselves have on speech. As the Supreme Court noted in Buckley, reporting requirements are constitutional even when they deter some who might otherwise contribute.28 Potential liability for an unknowing violation has additional impacts on speech. First, a person found liable may be less willing to re-enter the political discussion since they were penalized for their prior actions. Second, a person may be less willing to undertake large expenditures in light of the double penalty that section 253.131 imposes. These are troubling concerns because as the Supreme Court noted in Buckley, effective participation in the public arena may require large expenditures.29 Third, potential liability for an unknowing violation may deter activism in different political contexts for fear of some other unknown liability.

While these impacts on speech are not insignificant, the competing state interests are substantial. It might be argued that imposing a requirement that an individual knowingly violates the law is a less restrictive means of mitigating the evils of campaign corruption and voters’ lack of information. But the cost to the statute’s effectiveness is reasonably clear. As the Court argues, proving a contributor knew about the reporting requirements yet chose to violate them would be inordinately difficult in most cases. Also, a person determined to violate the reporting laws need only avoid learning what the regula*61tions required. On the other hand, enforcing the reporting requirements regardless of knowledge provides incentive to learn what the regulations require and to abide by them. Consequently, I believe that section 253.131(a) bears a sufficient relationship to the state’s substantial interest to meet the exacting scrutiny required under Buckley. Because the Court’s application is constitutional, it cannot be said that every application of section 253.131(a) violates the First Amendment. Thus, I conclude section 253.131(a) satisfies the first part of the test articulated by the Supreme Court in City Council of Los Angeles.30

I would then turn to the second part of the test: whether section 253.131(a) is substantially overbroad so as to create a realistic danger that the statute itself will significantly compromise recognized First Amendment protections. Liability can arise under section 253.131(a) for either a knowing or unknowing violation. Both the Court and the dissent seem to agree that liability under section 253.131(a) would be constitutional when a person knowingly violates the statute. I believe they are right because the state interests are not substantially outweighed by the chilling effects the statute would have on free speech. Second, as I concluded above, section 253.131(a) is constitutional when liability is enforced on an unknowing violator. Thus, section 253.131(a) is not unconstitutionally overbroad and satisfies the second part of the test announced in City Council of Los Angeles.31 Therefore, I conclude that section 253.131(a) passes constitutional scrutiny.

B.

I do not join part V of the plurality’s opinion because I believe it misconstrues United States v. X-Citement Video, Inc.32 in responding to the dissent. The plurality concludes that X-Citement “stands for the proposition that a person must be aware of engaging in certain conduct — not aware of violating a particular statute— before being punished for conduct that otherwise is protected by the First Amendment.”33 I believe the case has more to do with notice of the essential elements of a crime.

The opinion in X-Citement primarily concerns statutory construction. In X-Citement the Supreme Court reviewed a conviction under the Protection of Children Against Sexual Exploitation Act of 1977,34 which criminalized acts of (1) knowingly transporting or shipping visual depictions of minors engaged in sexually explicit conduct and (2) knowingly receiving, distributing or reproducing such depictions.35 The defendant there was convicted for selling video tapes involving an actress who was a minor when she made the films.36 The United States Court of Appeals for the Ninth Circuit reversed, holding the statute unconstitutional for not containing a scienter requirement that the defendant knew one of the performers was a minor.37 The Supreme Court reversed, holding that a scienter requirement could be implied in the federal statute.38 The Supreme Court acknowledged that under the statute’s most natural grammatical reading, “knowingly” did not modify the *62element regarding the age of the performers.39 But the Supreme Court found an implied scienter requirement for several reasons.40 First, if the statute did not require a knowing violation it would lead to absurd results, for example, criminalizing the conduct of a retail druggist who unknowingly returns an uninspected roll of developed film containing pictures of minors engaged in sexually explicit conduct41 Second, the Supreme Court acknowledged the strong presumption that criminal statutes require scienter for each of the statutory elements that criminalize otherwise innocent conduct.42 Third, the Supreme Court looked at the federal statute’s legislative history and concluded that because the committee reports and floor debates indicated that Congress intended that the term “knowingly” modify another part of the subsection containing the term “minor”, it was difficult to conclude that “knowingly” did not also modify the remainder of the subsection.43 Finally, the Supreme Court concluded that a statute completely bereft of a scienter requirement regarding the age of the actors would raise serious constitutional doubts; therefore, as a rule of construction, the Supreme Court read the statute so as to eliminate those doubts.44

While X-Citement may be instructive for purposes of statutory construction, it does not guide the constitutional evaluation of section 253.131(a). The Supreme Court in X-Citement construed an additional mens rea element in the criminal statute to avoid serious constitutional problems. Nevertheless, the plurality’s and the dissent’s respective opinions erroneously presume that the constitutional problems to be avoided primarily related to the First Amendment. But the Supreme Court’s main concern in X-Citement was whether the statute satisfied the notice and fairness concerns underpinning the long-standing criminal law principle that mens rea requirements must be applied to every fact element of a crime.45 The First Amendment conduct was relevant in the X-Citement analysis because without a knowing requirement in the criminal statute an individual could be engaged in what he perceived as protected First Amendment speech without sufficient notice that his conduct was no longer permitted. This is a significant concern because the public is entitled to notice whenever generally believed legal conduct has been made illegal. The Supreme Court’s construction of a knowing requirement satisfied these notice and fairness concerns.

While X-Citement may articulate important statutory construction principles, they do not have force here. First, the Court’s interpretation of section 253.131(a) does not produce the odd or absurd results that concerned the Supreme Court in X-Citement. Here, section 253.131(a) punishes only those individuals who fail to report knowing campaign expenditures. Second, there is nothing in the legislative history to show that the Legislature intended to punish only knowing violations of section 253.131(a). Finally, as I conclude above, the Constitution does not require a knowing violation of the reporting statute. Thus, there is no need to construe the statute to include a knowing requirement in order to make it constitutional.

C.

While I conclude that section 253.131(a) is a constitutional enforcement provision, I note other concerns arising from Chapter 253 that were not raised by the Oster-*63bergs. In particular, I am concerned that the Election Code’s disclosure requirements may be so cumbersome for ordinary citizens that they unduly burden free speech. The sheer complexity of the requirements, coupled with the severe consequences of non-compliance, may chill the activism of ordinary individuals who lack the sophistication or experience needed to understand and comply with the Election Code.

The first difficulty one encounters with the Election Code is coping with its definitions, which spell out the scope of its regulatory provisions.46 A “direct campaign expenditure” is defined as “a campaign expenditure that does not constitute a campaign contribution by the person making the expenditure.”47 A “campaign expenditure,” in turn, is “an expenditure made by any person in connection with a campaign for an elective office or on a measure.”48 A “campaign contribution,” by contrast, 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.” 49

These definitions are not very lucid. For one thing, it may not be apparent, from the perspective of an ordinary citizen, that “in connection with a campaign” refers solely to communications expressly advocating the election, passage, or defeat of a clearly identified candidate or measure. It is also not clear whether a coordinated expenditure — one made in cooperation or consultation with a candidate — is a campaign contribution or a direct campaign expenditure. How a coordinated expenditure is characterized is important, for it determines who — the candidate or the person making the expenditure — has the burden of reporting it. So an ordinary citizen must consult the Texas Ethics Commission Rules (or a lawyer) to clarify this ambiguity: “A campaign expenditure is not a contribution from the person making the expenditure if ... it is made without the prior consent or approval of the candidate or officeholder on whose behalf the expenditure was made.”50

At least one thing is clear. An “expenditure” is defined very broadly to include “a payment of money or any other thing of value.”51 An expenditure as minor as the cost of drafting or copying an issue-oriented handbill or mailing a letter may trigger the Election Code’s requirements.52

Texas’s regulatory scheme for direct campaign expenditures begins with Chapter 253 of the Texas Election Code. Section 253.002 prohibits a person from knowingly making or authorizing a direct campaign expenditure unless the expenditure is authorized by Subchapter C.53 This general prohibition does not apply to corporations, labor organizations, candidates, political committees, or campaign treasurers acting in an official capacity, whose expenditures are regulated under other Election Code provisions.54

Subchapter C, comprised of Sections 253.061 through 253.063, describes the circumstances under which an ordinary citizen can make a direct campaign expenditure. Section 253.061 provides that an individual may make direct campaign expenditures of up to $100 if he or she is “not acting in concert with another person” and receives no reimbursement for *64the expenditures.55 Section 253.062 allows an individual “not acting in concert with another person” to make direct campaign expenditures exceeding $100 if “the individual complies with Chapter 254 as if the individual were a campaign treasurer of a political committee.”56

Chapter 254 spells out the detailed record-keeping, report-filing, and written-notice requirements with which a campaign treasurer must comply. First, “[ejach campaign treasurer of a political committee shall maintain a record of all reportable activity” containing “the information that is necessary for filing the reports required by this chapter” and “preserve the record for at least two years.”57 Second, a campaign treasurer must, under pain of committing a Class A misdemean- or, “deliver written notice of [any political expenditure] to the affected candidate or officeholder not later than the end of the period covered by the report in which the reportable activity occurs.”58 Third, the Election Code details the contents required in the reports, the entities to which they must be sent, and the various reporting periods that apply.59

As the Court illustrates, the reporting requirements are not trivial.60 Fortunately, the Commission has made compliance easier by making forms and campaign finance guides available over the Internet.61 But the fact that those forms and guides are tailored for political committees, not individuals, makes an ordinary citizen’s task of completing the forms that much more complicated.

Even after an ordinary citizen divines what information must be reported and how to report it, determining the proper filing authority with whom to file the reports is no easy task. Because the Election Code itself does not make this clear,62 one must turn to the Ethics Commission Rules for guidance. These Rules instruct an individual making a direct campaign expenditure under Section 253.062 to file reports as if the individual were a campaign treasurer of a specific-purpose political committee.63 There are different filing authorities depending on the office sought by the candidate supported or opposed by a specific-purpose political committee. Committees supporting or opposing candidates for a seat in the state legislature or on the state board of education or for other statewide and multi-county district offices must file reports with the Texas Ethics Commission.64 Committees seeking *65to influence elections for county, district, or precinct offices must file their campaign treasurer appointments with the county clerk, elections administrator, or tax assessor-collector, as designated by the particular county.65 The filing authority for committees seeking to influence elections for other offices varies.66 If, because the committee is supporting or opposing more than one candidate, reports must be filed with multiple authorities, then the committee may choose to file the reports with the commission only.67

And the complexity does not end there. An individual cannot expect to file just one report and be done with it. The Election Code sets forth several reporting periods in which reports are required, even if no expenditures are made.68 Reports must be filed semi-annually,69 thirty days before the election,70 and eight days before the election.71 Also, expenditures above a specified threshold made in the nine days preceding the election must be reported in telegram reports.72 Only by filing a dissolution report with a sworn statement that no further reportable expenditures are expected is the individual relieved of filing additional reports.73

In summary, the Election Code’s reporting requirements are cumbersome and complicated. As a result, the Election Code may deter ordinary citizens from disseminating their own views. This raises the question, yet unanswered by the United States Supreme Court, of whether a set of disclosure requirements can be so onerous that they violate the First Amendment.74

It is the Legislature’s prerogative to structure this State’s campaign finance laws. But that prerogative is subject to constitutional limitations. This State’s campaign finance laws must not unduly burden political speech of ordinary citizens. There could be future cases in which other provisions of Chapter 253 are constitutionally challenged and speech is so significantly constrained as to render those provisions of the Election Code unconstitutional. That has not, however, been done in this case. Accordingly, I concur.

. See Tex. Elec.Code § 253.131(a) ("A person who knowingly makes or accepts a campaign expenditure or makes a campaign expenditure in violation of this chapter is liable for damages as provided by this section.”).

. See Heckler v. Mathews, 465 U.S. 728, 741-42, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) ("The canon favoring constructions of statutes to avoid constitutional questions does not ... license a court to usurp the policy-making and legislative functions of duly-elected representatives. Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ... or judicially rewriting it.”) (citations and internal quotation marks omitted).

. See Act of May 30, 1987, 70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3005 & 3011 (current version at Tex Elec.Code §§ 253.003(b), 253.005(a), 253.131(a)).

. 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994).

. (12 S.W.3d 45).

. 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam).

. 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).

. 424 U.S. at 12-13, 60, 96 S.Ct. 612.

. 514 U.S. at 336, 115 S.Ct. 1511.

. See id. at 337-38, 115 S.Ct. 1511.

. See id. at 356, 115 S.Ct. 1511.

. See Buckley, 424 U.S. at 44-45, 96 S.Ct. 612.

. Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); accord Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

. Buckley, 424 U.S. at 44-45, 96 S.Ct. 612.

. 2 U.S.C. § 434g(a)(5)(A), (B). However, the version of the federal statute construed in Buckley did not have any express knowing requirement. See Buckley 424 U.S. at 76-77, n. 99, 96 S.Ct. 612.

. Alaska, Alaska Stat. § 15.13.125 (1998); Florida, Fla. Stat. Ann. § 106.085 (1992); Massachusetts, Mass. Gen. L. ch. 55, § 18 (1991); Nebraska, Neb. Rev. Stat. § 49-1467 (1998); North Carolina, N.C. Gen. Stat. § 163-278.27 (1999); Ohio, Ohio Rev.Code Ann. § 3517.99(M) (1995); Virginia, Va.Code Ann. § 24.2-929 (1997).

. Connecticut, Conn. Gen.Stat. Ann. § 9-333y (1989); Delaware, Del.Code. Ann. § 8043 (1999); Iowa, Iowa Code Ann. § 56.16 (1999); Mississippi, Miss.Code. Ann. § 23-15-811 (1999); Missouri, Mo. Ann. Stat. § 130.072 (1997); Louisiana, La.Rev.Stat. Ann. § 1505.4 (1980).

. Del.Code. Ann. § 8043.

. Mo. Ann. Stat. § 130.072.

. Id.

. See State v. Owen, 990 S.W.2d 158, 160 (Mo.Ct.App.1999).

. See Conn. Gen.Stat. Ann. § 9-333y ("Any person who knowingly and willfully violates any provision of this chapter shall be fined....”); Iowa Code Ann. § 56.16 ("Any person who willfully violates any provisions of this chapter shall upon conviction, be guilty of a serious misdemeanor.”); La.Rev.Stat. Ann. § 1505.4 ("[Any person] who knowingly fails to file or who knowingly fails to timely file any such reports as are required by this Chapter may be assessed a civil penalty....”); Miss.Code Ann. § 23-15-811 (“Any candidate or other person who shall willfully and deliberately and substantially violate the provisions and prohibitions of this article shall be guilty of a misdemeanor.... ”).

. See Members of City Council of Los Angles v. Taxpayers for Vincent, 466 U.S. 789, 797-98, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (upholding a municipal rule that forbade the posting of signs on public property, where the effect was to prevent a political candidate from posting campaign signs on utility poles); see also New York State Club Ass'n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (rejecting a First Amendment freedom of association challenge of a city ordinance forbidding discrimination in certain private clubs).

. See Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam).

. See id.; see also Nixon v. Shrink, - U.S. -, 120 S.Ct. 897, 903, - L.Ed.2d - (2000).

. See Buckley, 424 U.S. at 80, 96 S.Ct. 612.

. See id. at 66-67, 76, 81, 96 S.Ct. 612.

. See id. at 68, 96 S.Ct. 612. ("It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute.”).

. See id. at 19-20, 96 S.Ct. 612.

. Members of City Council of Los Angles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); see also New York State Club Ass’n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988).

. Members of City Council of Los Angles, 466 U.S. at 801, 104 S.Ct. 2118.

. 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994).

. 12 S.W.3d 45.

. 18 U.S.C. § 2252 (1988 ed. and Supp. V).

. X-Citement, 513 U.S. at 66-68, 115 S.Ct. 464.

. See id. at 66, 115 S.Ct. 464.

. See id. at 67, 115 S.Ct. 464.

. See id. at 78-79, 115 S.Ct. 464.

. See id. at 68, 115 S.Ct. 464.

. See id. at 68-78, 115 S.Ct. 464.

. See id. at 69, 115 S.Ct. 464.

. See id. at 70-73, 115 S.Ct. 464.

. See id. at 73-78, 115 S.Ct. 464.

. See id. at 78, 115 S.Ct. 464.

. X-Citement, 513 U.S. at 70, 115 S.Ct. 464; see also Staples v. United States, 511 U.S. 600, 611, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

. See Tex. Elec.Code § 251.001.

. Id. § 251.001(8).

. Id. § 251.001(7).

. Id. § 251.001(3).

. 1 Tex. Admin. Code 20.1. (1999)(Tex. Ethics Comm'n, Definitions).

. Tex. Elec.Code § 251.001(6).

. See Op. Tex. Ethics Comm’n No. 177 (1993) (stating that expenditures include "the cost of producing ... brochures plus any distribution costs, such as postage”).

. See Tex Elec.Code § 253.002.

. See id. § 253.002(b) (listing exceptions).

. Id. § 253.061.

. Id. § 253.062(a)(1).

. Id. § 254.001(b),(c),(d).

. Id. § 254.128; accord Op. Tex. Ethics Comm’n No. 331 (1996) ("An individual 'not acting in concert with another person’ who makes a direct campaign expenditure supporting a candidate is also required to give notice to the candidate.”); see also Tex. Penal Code § 12.21 (providing punishment of up to $4,000 and one-year’s confinement in jail for committing a Class A misdemeanor).

. See Tex. Elec.Code §§ 254.121 — 254.184.

. See 12 S.W.3d 42 (discussing many of the details that must be provided in the reports).

. See Texas Ethics Commission, Forms & Instructions (last revised Feb. 2, 2000) chttp:// www.ethics.state.tx.us/ filingin-fo/forms & in.htm>.

. Section 253.062 requires an individual to file as if he or she were the campaign treasurer of a political committee. See Tex. Elec. Code § 253.062. The Election Code, however, provides different filing requirements depending on whether the committee is special- or general-purpose. Compare id, § 254.130 with id. § 254.163 (specifying different filing authorities for the different committee types); see also id. §§ 251.001(13) & (14) (defining special- and general-purpose committees). And the Election Code simply does not indicate which of these two committees — general-purpose or specific-purpose — an individual under Section 253.062 is supposed to model.

. See 1 Tex Admin. Code § 22.5(b)(2)(l 999) (Tex Ethics Comm'n, Direct Campaign Expenditures).

. See id. § 20.3. (Reports filed with the Commission).

. See id. § 20.5 (Reports filed with a county filing authority).

. See id. §§ 20.3 — 20.7.

. See id. § 20.9 (Filing opinion for certain specific-purpose committees).

. See Tex. Elec.Code § 254.031(b) ("If no reportable activity occurs during a reporting period, the person required to file a report shall indicate that fact in the report.”).

. See id. § 254.123.

. See id. § 254.124(b).

. See id. § 254.124(c).

. See id. § 254.038.

. See id. § 254.126.

. Cf. Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998) (suggesting that permissible free speech restrictions should be " 'set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with’ ”) (quoting United States Civil Serv. Comm’n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973)).