Empower Texans, Inc. v. Geren, No. 19-50577 (5th Cir. Oct. 5, 2020)
On October 5, 2020, the United States Court of Appeals for the Fifth Circuit filed an opinion in Empower Texans, Inc. v. Geren vacating a previous judgement and remanding the case to the lower court to be dismissed. Empower Texans initially filed the lawsuit against Charlie Geren, the Chairman of the Committee on House Administration of the Texas House of Representatives, in the United States District Court for the Western District of Texas, alleging that by holding Empower Texans ineligible for media passes to the 86th Session of the Texas legislature, Geren had engaged in bad-faith viewpoint discrimination and violated Empower Texans’ First Amendment rights.
Employees for Texas Scorecard, an Empower Texans product, applied for media passes for both chambers of the Texas Legislature on January 3, 2019. The Senate approved their credentials. In the House, however, Geren denied them media passes stating that they did not qualify.
In his letter denying the employees’ media credentials, Geren explained that “the organization [they] are employed by, Texas Scorecard, has a close association with a general-purpose political committee (GPAC) and that the organization’s website prominently display advocacy on policy matters before the legislature.” He added that records available on the Texas Ethics Commission website show “a GPAC with the name Empower Texans PAC is located at the same address given for [their] employer.” This was incompatible with House Rule 5, Section 20, which states that media representatives must belong to organizations “whose publications or operations are editorially independent of any institution, foundation, or interest group that lobbies the government or that is not principally a general news organization.”
Empower Texans alleged in its complaint that Geren had engaged in viewpoint discrimination. Empower Texans no longer shared an address with the GPAC. Therefore, they suspected Geren did not actually review their standing in 2019 and acted in bad faith by denying their application. Geren had publicly shown distaste for Empower Texans in the past, which it stated stemmed from the organization giving Geren low rankings and supporting his political opponents. He has regularly received an “F” rating from Empower Texans’ Fiscal Responsibility Index, and the contest between Geren and Bo French, an Empower Texans-backed candidate, was what Statesman describes as “one of the ugliest primary races of 2018.”
The district court did not consider the merits of Empower Texans’ underlying claims and instead granted Geren’s motion to dismiss the case based on legislative immunity. Following the dismissal of this case, further controversy arose around media passes in the Texas House when Speaker Dennis Bonnen was secretly recorded by Michael Sullivan, the CEO of Empower Texans, offering Sullivan media access in exchange for political targeting.
The Reporters Committee for Freedom of the Press, a nonprofit organization offering legal services to members of the news media, filed an amicus brief urging the circuit court to reverse the district court’s dismissal of the case, arguing that if Empower Texans’ allegation is true, Geren’s decision was administrative and therefore outside the bounds of legislative immunity. Furthermore, they argued that even if his decision were a legislative action, other courts have detached “wholly irresponsible and undemocratic” legislative actions from absolute immunity.
The Fifth Circuit, however, did not consider this question of legislative immunity. Instead, the court unanimously held that the case should be dismissed because the legislative session was over and there was no ongoing harm. Thus, the case was moot. Furthermore, the court held the “capable of repetition, yet evading review” exception to mootness did not apply. The court noted that this exception applies “only in exceptional circumstances” and that it is less likely to be found in cases “where the party seeking review failed to utilize the procedures that had been available.” Empower Texans waited almost a month before filing their appeal and never asked to expedite their appeal, failing to take advantage of the means at their disposal. Thus, the court said, they did not demonstrate the urgency necessary to show that future denials of media passes are “likely to evade meaningful review.”