Fringe groups are up in arms, frantically sending out hysterical e-mails about the dire consequences if Republican Rep. Todd's Smith bill to clarify the corporate and union prohibition on campaign contributions were to become law. They allege that advocacy groups, charitable non-profits, even churches, will run afoul of the law for electioneering under HB 2511 — squelching these entities' free speech rights in Texas.

What these groups don't understand — and may get them and you in big trouble — is that the electioneering standard in HB 2511 is already the law today in Texas. The Texas Ethics Commission interprets our corporate and union prohibition on funding direct campaign expenditures (electioneering) to apply to the limits of the U.S. Constitution: "We believe the Texas Legislature intended section 253.094 to prohibit political expenditures by corporations and labor organizations to the full extent allowed by the Constitution, as interpreted by the United States Supreme Court." Tex Ethics Opinion No. 198 (1994) (emphasis added). The Texas Supreme Court, in a holding by then Justice (now Attorney General) Greg Abbott, adopted this position of the Ethics Commission in Osterberg v. Peca (2000).

HB 2511 expressly adopts the current constitutional standard for electioneering set by Chief Justice John Roberts in Wisconsin Right to Life v. FEC in 2007. In that case, Roberts defined the constitutional test for electioneering, after knocking down as applied McCain-Feingold's 60-day test (no ads referring to a candidate 60 days before an election). The chief justice held that the constitutional test for electioneering extended beyond the "magic words (vote for or against)" to communications, considering the whole content and the context, where there was no (not even one) reasonable interpretation other than the communication advocates for the election or defeat of a candidate. Emphasizing that this test was a high bar, Roberts stated that any reasonable doubts were to be resolved in favor of allowing the communication to be funded with corporate and union dollars and for individual donors to remain anonymous.

Roberts' constitutional standard for electioneering has applied for the last two years in Texas, pursuant to the Texas Ethics Commission's opinions and Texas case law. It is just that only handful of election lawyers know it. And despite the hysteria concerning HB 2511, there has not been a rash of ill-advised indictments or civil litigation in the last two years involving the corporate prohibition.

Without a statutory definition, we know from experience that rash lawyers will poorly advise their clients and tell them that Texas has an evadable corporate and union prohibition. Hearing what they want to hear, these political players are going to "go for it" and get themselves in big and expensive civil and criminal trouble.

For those who want legal clarity and the law set out in statute for all to see, I believe the better approach is to adopt explicitly in statute Roberts' test as well as express safe harbors. This is what HB 2511 does. Fringe groups' ignorance and hysteria does not change the fact that Roberts' test applies today in Texas. Nor does it change the fact that knowingly violating the corporate and prohibition is a 3rd degree felony and results civilly in treble civil damages and attorney's fees.

The question of this late hour is whether the Texas Senate's leadership allows a hearing and vote on HB 2511, or succumbs to fringe purveyors of hysteria and confusion.

Fred Lewis is an Austin lawyer and activist.

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