Texas AG Sues Immigrant Serving Nonprofit to Enforce 501(c)(3) Political Speech Restrictions

Don’t let Ken Paxton’s lazy eye fool you.  He is as tenacious for the fight as he is wrong about the law.  Despite one loss after another in his war against migrant-serving nonprofits, the Texas AG keeps swinging for the fences.  I don’t mean the right field fence.  This guy wants to hit it deep over the center field wall.  He is currently relying on IRC 501(c)(3) to argue to a Houston district court judge that FIEL, a 20 year old migrant-serving nonprofit, should be run out of Texas because of substantial lobbying and campaign intervention.  From the looks of things, Paxton’s deputies know next to nothing about 501(c)(3) and certainly not the futility of enforcing political restrictions in court.  Yet here they are anyway trying to do what a whole army of IRS experts haven’t been able to figure out yet.  In a state district court, no less.  From the Houston Chronicle:

Attorney General Ken Paxton is trying to shut down an immigrants rights group in Houston, alleging it is “systematically” flouting nonprofit rules by advocating too aggressively against state laws and political candidates.  It is the latest attempt by the Republican attorney general to shutter groups aiding immigrants in Texas. Paxton has sought, unsuccessfully so far, to close a handful of Catholic-affiliated migrant shelters along the border, alleging they are engaged in human trafficking.  But the drive against FIEL Houston, a longtime nonprofit advocating for immigrants, takes a new tactic, arguing the group has run afoul of federal rules governing how far nonprofits can go in seeking to influence legislation, and barring certain nonprofits from backing political candidates.

I love to read careful comments by colleagues, some of whom must really bite their tongues just to keep from laughing out loud.  Johnny Rex is quoted eruditely offering that state AGs don’t often seek to enforce the (c)(3) political speech restrictions. Hell, nobody ever seeks to enforce the prohibitions not even at the federal level.  Especially not since Republicans enacted an apparently perpetual appropriations rider effectively enjoining the Service from ever trying to do so. Those prohibitions are so obviously unconstitutional anyway that it would be stupid to try.  And yet . . . well . . .  Ken Paxton has never been accused of being an altogether stable genius.  He’s no Lyndon Baines Johnson, trust me.

Paxton filed earlier this summer but the media only just got wind of the case last Friday.  I looked all over for the source documents. But the complaint and all the pleadings are buried deep within the Clerk’s webpage, all but inaccessible to the public.  Call me cynical, but I think Paxton wants it that way.  He usually brags all over his web page about the suits he brings against the nonprofit human smuggling cartel.  This isn’t even the first time he has sued FIEL.  But there’s not any bragging in this case.  You will find no mention of it hardly anywhere.  Not on the AG’s webpage nor in a normally boisterous press release from the AG’s PR machine. I finally found what looks like a slam dunk Memorandum in Opposition, but only on opposing counsel’s webpage.  I can think of two reasons the AG is not crowing about this case.  First, the suit is so stupid as to be embarrassing. There is a pretty good argument, too, that he is bringing this hopeless action merely as a tactic to seek an advantage in separate litigation against FIEL. This according the MALDEF, the nonprofit law firm representing FIEL: 

Attorneys for FIEL say Paxton is retaliating against the organization because it speaks out in defense of immigrants and is a plaintiff in two ongoing lawsuits challenging Texas’ election laws. “The current holder of the attorney general’s office has chosen to target a group that helps some of the most vulnerable members of our community,” said Soltero. “The fact that the state used taxpayer resources to file this legal challenge underscores how this office under the current office holder engages in retaliation, content-based state action to try to chill expression, and selective enforcement against groups it disagrees with. Moreover, the relief sought and the procedure used to punish FIEL is not only unprecedented but also contrary to due process.”In recent months, Paxton has aggressively used lawsuits to target nonprofit groups with whose content or mission he disagrees.

Another possible reason Paxton looks to keep this all hush-hush is that the suit seeks to enforce a law that Paxton’s allies on Ways and Means don’t even want enforced.  

darryll k. jones