             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                             NOS. PD-529-09 through PD-545-09



        Ex parte JAMES W. ELLIS and JOHN D. COLYANDRO, Appellants



                         ON APPELLANT’S AND STATE’S
                     PETITIONS FOR DISCRETIONARY REVIEW
                      FROM THE THIRD COURT OF APPEALS
                                TRAVIS COUNTY

               K ELLER, P.J., delivered the opinion of the unanimous Court.

       This case involves constitutional challenges to the money laundering statute and to certain

Election Code provisions relating to corporate contributions. With respect to the money laundering

statute, we determine that the court of appeals inappropriately resolved issues that are not cognizable

in a pretrial habeas proceeding. With respect to the Election Code provisions, we determine that the

statutes are not facially unconstitutional. Consequently, we sustain the State’s first ground for

review and otherwise affirm the judgment of the court of appeals.

                                        I. BACKGROUND

       The State filed a number of indictments against Colyandro for election code violations.

These indictments charged that, in 2002, on behalf of the Texans for Republican Majority Political
                                                                    ELLIS & COLYANDRO — 2

Action Committee (TRMPAC), Colyandro knowingly accepted from several corporations political

contributions in various dollar amounts that he knew were contributed in violation of Chapter 253

of the Election Code. The State also filed one indictment against Colyandro for money laundering

and one indictment against Ellis for money laundering. The money laundering indictments alleged

that the above contributions were transferred to the Republican National Committee (RNC) via a

$190,000 check made payable to the Republican National State Elections Committee (RNSEC) that

Colyandro signed and delivered to Ellis and that Ellis delivered to the RNC. The State later filed

re-indictments of the money laundering charges. The re-indictments omitted any references to a

“check,” instead alleging the “transfer of funds of the value of $190,000” from TRMPAC to the

RNSEC.

       Ellis and Colyandro filed pretrial habeas corpus applications, which the trial court denied.

On appeal, they argued that the Election Code provisions governing political contributions were

unconstitutionally vague and overbroad with respect to protected First Amendment expression. They

further argued that the money laundering statute was unconstitutionally vague if it were interpreted

to apply to checks or to a transaction involving something other than cash.

       Drawing a sharp distinction between contributions and expenditures, the court of appeals held

that laws governing contributions were not subject to “strict scrutiny” but were reviewed under a less

rigorous test of being “closely drawn” to meet a “sufficiently important interest.”1 Responding to

the appellants’ overbreadth argument, the court of appeals rejected the contention that Supreme

Court cases prohibiting restrictions on expenditures had any application to the Texas Election Code




       1
           Ex parte Ellis, 279 S.W.3d 1, 19 (Tex. App.–Austin 2008).
                                                                    ELLIS & COLYANDRO — 3

provisions that restricted contributions.2 Moreover, the court of appeals held that the appellants

failed to demonstrate that the contribution restrictions reached a substantial amount of protected

conduct.3 With respect to the appellants’ vagueness claims, the court of appeals concluded that the

Election Code provisions, though broad and complex, were not so indefinite as to deprive a person

of ordinary intelligence of the ability to understand what was prohibited.4 The court held that “a

person of ordinary intelligence is capable of properly designating whether his or her contribution is

intended to support or oppose a measure (lawful), be used solely for administrative expenses

(lawful), be used for unregulated expenditures (lawful), or be used [] ‘in connection with’ a

candidate’s campaign (unlawful).”5 The court of appeals explained that “the statute places burdens

on those making and accepting corporate contributions to designate and to ascertain the purpose of

a contribution before giving it or using it in a campaign for elective office.”6

       The court of appeals answered the contention that the money laundering statute was

unconstitutionally vague if it applied to checks by holding that the statute did not apply to checks.7

Whether the statute encompassed checks depended on whether checks were included in the




       2
           Id. at 20.
       3
           Id. at 20-21.
       4
           Id. at 21-23.
       5
           Id. at 22.
       6
           Id.
       7
           Id. at 23-30.
                                                                    ELLIS & COLYANDRO — 4

definition of “funds.”8 The statute provided that the term “funds” includes a list of specific items.9

According to the court of appeals, the term “includes” meant that the list was not exclusive.10 But,

relying upon the principle of ejusdem generis, the court held that the term “funds” could only

encompass items that were of the “same kind, class, or nature” as the items in the list.11 The court

of appeals then observed that all the items in the list were forms of cash or cash equivalents.12 The

court of appeals held that checks were unlike these items because a check is not guaranteed, and

therefore does not function as cash or a cash equivalent:

       Coin, currency, cash, or items that function as cash equivalents are, themselves,
       payment. By contrast, a check is a promise or commitment to make payment when
       the check is later presented for payment. Accordingly, payment by check that is not
       guaranteed in some way, such as a cashier’s check or teller’s check, is not payment
       in the same sense as payment by cash or cash equivalent.13

                                                ***

       Cash or cash equivalents such as currency, Treasury notes, silver certificates, foreign
       bank drafts, cashier’s checks, or other forms of payment similar to those enumerated
       in the pre-2005 version of section 34.01 are not at all similar to checks or other
       non-guaranteed negotiable instruments as a medium of exchange. Cash or a cash
       equivalent is, without more, a form of payment, and once the currency or other cash
       equivalent is delivered, payment is accomplished and is no longer contingent on
       some future event.14



       8
            Id. at 23-24.
       9
            Id. at 24.
       10
            Id.
       11
            Id. at 25.
       12
            Id. at 25-26.
       13
            Id. at 25.
       14
            Id. at 26.
                                                                      ELLIS & COLYANDRO — 5

During this discussion, the court of appeals noted that a “foreign bank draft” was a “teller’s check,”

with payment guaranteed, and thus constituted a cash equivalent.15 “Foreign bank drafts” was among

the items in the statutory list.16 The court of appeals also cited legislative history in support of its

conclusion that the version of the money laundering statute that was applicable to the appellants was

not intended to apply to checks.17

        In a motion for rehearing, the State argued that the court of appeals erred in discussing

whether or not the money laundering statute applies to checks because the appellants’ claim with

respect to checks was an “as applied” challenge to the statute that was not cognizable in pretrial

habeas proceedings.18 In a supplemental opinion, the court of appeals conceded that it “may consider

only facial challenges on pretrial habeas.”19 Nevertheless, the court of appeals concluded that the

State’s contention was without merit. First, the court concluded that the appellants had in fact raised

a facial challenge to the statute because they did not contend that the term ‘funds’ was vague “only

as it applied in these indictments.”20 Although the appellants argued that the money laundering

statute was unconstitutional if money laundering could be committed by check, the court of appeals


        15
             Id. at 26 n.21.
        16
             Id. at 24.
        17
          Id. at 27-29. In 2005, the money laundering statute was amended to explicitly include
checks within the definition of “funds.” See id. at 28 (citing Acts 2005, 79th Leg., R.S., ch. 1162,
§1).
        18
           See id. at 37 (supplemental opinion). The State also challenged the court of appeals’s
statutory construction analysis, see id. at 39-41, but, given our disposition of the State’s first ground
for review, see this opinion, infra, we are not concerned with that challenge here.
        19
             Id.
        20
             Id. at 37-38.
                                                                     ELLIS & COLYANDRO — 6

found that the appellants also argued more generally that “dictionaries offer many and divergent

definitions of ‘fund,’ which are inconsistent with the types of ‘funds’ enumerated in the statute” and

that “the statute is unconstitutionally vague because it denies fair notice that it criminalizes conduct

not within the enumerated classes of ‘funds.’”21 Second, the court of appeals concluded that, even

if some of the appellants’ complaints could be characterized as raising an “as applied” challenge,

resolution of those complaints was necessary to resolving the facial challenge at issue on appeal.22

In support of this conclusion, the court relied upon a statement by the Supreme Court in Hoffman

Estates v. Flipside, Hoffman Estates Inc.,23 that in analyzing a facial overbreadth or vagueness

challenge, “[a] court should . . . examine the complainant’s conduct before analyzing other

hypothetical applications of the law.”24

        In a dissent to the refusal to hear the case en banc,25 Justice Henson criticized the court of

appeals panel’s opinion as “overbroad and rife with dicta.”26 She believed that the panel, in

concluding that the money laundering statute did not apply to checks, had reached the merits of an

“as applied” challenge that was not properly before the court.27 She characterized the appellants’



        21
             Id. at 38 (some internal quotation marks omitted).
        22
             Id.
        23
             455 U.S. 489 (1982).
        24
         Ellis, 279 S.W.3d at 38 (quoting Hoffman Estates, 455 U.S. at 495); see also Ellis, 279
S.W.3d at 38-39.
        25
             Justice Henson requested that the cases be heard en banc, and that request was overruled.
Id. at 30.
        26
             Id. at 31 (Henson, J., dissenting).
        27
             Id.
                                                                   ELLIS & COLYANDRO — 7

challenge as an “as applied” challenge “in sheep’s clothing” because “the State’s interpretation of

the statute must be correct in order for their vagueness challenge to succeed.”28 Justice Henson

further concluded that, because the appellants conceded that the term “funds” plainly includes cash

or currency, a facial challenge must necessarily fail on that basis.29 She also observed that two

Dallas Court of Appeals cases had upheld the sufficiency of the evidence to support money-

laundering charges based on transactions involving checks30 and that the federal money laundering

statute “clearly criminalizes the laundering of checks.”31 Justice Henson also criticized the panel’s

application of the principle of ejusdem generis and the conclusions drawn from the 2005

amendments to the money laundering statute.32

       In a dissent to the overruling of the State’s motion for reconsideration en banc,33 Justice

Patterson also argued that the court of appeals panel had ruled on an “as applied” vagueness

challenge that was not properly before it.34 In her view, the money laundering indictments merely

alleged the $190,000 check as the method of laundering the funds, but the actual funds were the




       28
            Id.
       29
            Id. at 32.
       30
           Id. at 33 (citing Lee v. State, 29 S.W.3d 570 (Tex. App.–Dallas 2000, no pet.) and Davis
v. State, 68 S.W.3d 273 (Tex. App.–Dallas 2002, pet. ref’d)). Justice Henson acknowledged that
“the precise issue of whether checks were considered ‘funds’ under the money laundering statute was
not before the court” in those cases. Ellis, 279 S.W.3d at 33.
       31
            Id.
       32
            Id. at 35-37.
       33
            See id. at 41.
       34
            Id. 41-42 (Patterson, J., dissenting).
                                                                     ELLIS & COLYANDRO — 8

corporate contributions, which may or may not have consisted of checks.35 Because a trial had not

occurred, in which evidence could have been elicited as to the exact form of the corporate

contributions, Justice Patterson concluded that a ruling on the appellants’ vagueness challenge was

premature.36 Justice Patterson also concluded that any facial challenge made by the appellants failed

because, by conceding that “funds” included cash, they could not demonstrate that the statute was

vague in all its applications.37

        The State filed a petition for discretionary review, arguing in its first ground that the court

of appeals erred in discussing whether or not the money laundering statute applies to checks because

the appellants’ claim with respect to checks was an “as applied” challenge to the statute that was not

cognizable in pretrial habeas proceedings.38 Colyandro also filed a petition for discretionary review,



        35
             Id.
        36
             Id.
        37
             Id. at 42-43.
        38
             The State’s grounds for review read as follows:

        GROUND ONE: The court of appeals erred by addressing the appellants’ “as
        applied” challenge to the 2002 money laundering statute brought in a pretrial writ of
        habeas corpus, where only a facial challenge was cognizable. In holding that this “as
        applied” challenge was actually a facial challenge, the court improperly looked
        behind the face of the indictment and misinterpreted a decision of the United States
        Supreme Court.

        GROUND TWO: The court of appeals erred in performing unnecessary statutory
        analysis and in examining legislative history and treatises to interpret the meaning of
        terms in the statute when the plain text was not ambiguous and did not lead to absurd
        results.

Due to our disposition of the State’s first ground for review, we do not reach its second ground for
review.
                                                                     ELLIS & COLYANDRO — 9

arguing that the court of appeals erred in declining to apply a “strict scrutiny” analysis and erred in

refusing to hold that the Election Code provisions were unconstitutionally vague or overbroad.39 We

granted both petitions.

                                           II. ANALYSIS

                                       A. Money Laundering

       Regarding the State’s petition, the first question that we confront was raised by Ellis’s

attorney at oral argument: “Why are we here?” The court of appeals affirmed the trial court’s

judgment in favor of the State, so the State “won” on appeal. Ordinarily, a first-level appellate court

retains wide latitude to uphold a trial court’s decision in a manner the appellate court deems

appropriate.40 But pretrial habeas, followed by an interlocutory appeal, is an “extraordinary remedy,”


       39
             Colyandro’s grounds for review read as follows:

       GROUND ONE: The court of appeals erred in finding that Section 253.094 of the
       Texas Election Code was not unconstitutionally vague, employing a standard of
       review applicable to civil, not criminal cases.

       GROUND TWO: The court of appeals erred in finding that Section 253.094 of the
       Texas Election Code was not unconstitutionally overbroad, employing a standard of
       review applicable to civil, not criminal cases.

In his brief, Colyandro breaks the discussion into three topics: (1) the appropriate standard of review,
(2) vagueness, and (3) overbreadth. The State contends that the standard of review topic is the only
issue fairly encompassed within Colyandro’s petition and that we should not address the merits of
the vagueness and overbreadth issues. We conclude, however, that the three topics outlined in
Colyandro’s brief were all fairly raised in his petition, and we will follow the three-point structure
of his brief in our analysis of his claims.
        40
          See Menefee v. State, 287 S.W.3d 9, 18 (Tex. Crim. App. 2009) (court of appeals that
affirmed the trial court’s judgment on one basis was not “compelled to address” an alternate
argument for affirming the trial court’s judgment); State v. Plambeck, 182 S.W.3d 365, 367 n.10
(Tex. Crim. App. 2005) (court of appeals did not err in failing to decide an issue that became moot
because of its resolution of a different issue); State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App.
1998) (an appellate court may consider, for the first time on appeal, an alternate theory of law
                                                                     ELLIS & COLYANDRO — 10

and “appellate courts have been careful to ensure that a pretrial writ is not misused to secure pretrial

appellate review of matters that in actual fact should not be put before appellate courts at the pretrial

stage.”41 Consequently, whether a claim is even cognizable on pretrial habeas is a threshold issue

that should be addressed before the merits of the claim may be resolved.42 If a non-cognizable claim

is resolved on the merits in a pretrial habeas appeal, then the pretrial writ has been misused, and the

State can appropriately petition this Court to correct such misuse.

        So, did the court of appeals resolve a non-cognizable claim? Generally, pretrial habeas is not

available to test the sufficiency of the charging instrument43 or to construe the meaning and

application of the statute defining the offense charged.44 Pretrial habeas can be used to bring a facial

challenge to the constitutionality of the statute that defines the offense but may not be used to

advance an “as applied” challenge.45

        The appellants certainly asserted that the money laundering statute was facially

unconstitutional, but such an assertion is not, by itself, enough. If a claim designated as a facial



applicable to the facts of the case which supports the trial court’s decision). But see Rushing v. State,
85 S.W.3d 283, (Tex. Crim. App. 2002) (although the court of appeals affirmed the trial court’s
decision in favor of the State, we granted the State’s petition for discretionary review and held that
the court of appeals erred in finding a statute unconstitutional).
        41
          Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (internal quotation marks
omitted) (quoting, in part, from Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)).
        42
             Doster, 303 S.W.3d at 721, 721 n.2, 727.
        43
             Id. at 724; Weise v. State, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).
        44
           See Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006) (in pari materia
challenge not cognizable on pretrial habeas); Weise, 55 S.W.3d at 620-21 (whether illegal dumping
statute requires a culpable mental state not ripe for review on pretrial habeas).
        45
             Weise, 55 S.W.3d at 620-21.
                                                                   ELLIS & COLYANDRO — 11

challenge is in fact an as-applied challenge, courts should refuse to consider the merits of the claim.

       The money laundering statute that the appellants are accused of violating provides: “A person

commits an offense if the person knowingly . . . conducts, supervises, or facilitates a transaction

involving the proceeds of criminal activity.”46 The term “proceeds” is defined to mean “funds

acquired or derived directly or indirectly from, produced through, or realized through an act.”47 In

turn, the term “funds” is defined as follows:

       (A) coin or paper money of the United States or any other country that is designated
       as legal tender and that circulates and is customarily used and accepted as a medium
       of exchange in the country of issue;

       (B) United States silver certificates, United States Treasury notes, and Federal
       Reserve System notes;

       (C) official foreign bank notes that are customarily used and accepted as a medium
       of exchange in a foreign country and foreign bank drafts.48

       The court of appeals’s supplemental opinion suggests that the appellants’ challenge to the

definition of “funds” was a facial challenge because it was not limited to the particular indictments

in these cases. But unless First Amendment freedoms are implicated,49 a facial vagueness challenge

can succeed only if it is shown that the law is unconstitutionally vague in all of its applications.50


       46
         T   EX . PENAL CODE   § 34.02(a)(2).
       47
            Id., § 34.01(4).
       48
            Id., § 34.01(2).
       49
            Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim. App. 1996).
       50
           Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
(2008) (citing United States v. Salerno, 481 U.S. 739, 745 (1987), which set forth the standard);
Sanchez v. State 995 S.W.2d 677, 683 (Tex. Crim. App. 1999). Appellants contend that the Salerno
standard no longer applies and instead argue that the test is whether the statute has “plainly
legitimate sweep.” In State v. Markovich, we recognized that the appropriate standard to apply for
                                                                       ELLIS & COLYANDRO — 12

Here, no one has argued that the money laundering statute implicates First Amendment activity, and

we have no reason to think that it does so. It is not enough, then, that the appellants’ constitutional

challenge may have been somewhat broader than the indictments. That fact, standing alone, does

not suffice to establish that the claim is a facial challenge because, despite this breadth, it still is not

a claim that the law is vague in all of its applications.

         A facial vagueness challenge to the definition of “funds” in the money laundering statute

would have to take one of two forms. First, one could challenge the definition of “funds” as vague

in its entirety. But the appellants conceded in their briefs to the court of appeals that the items listed

in the statutory definition of “funds” were reasonably specific. They referred to the list as a

“seemingly narrow definition,” that was disrupted by the State’s broad interpretation of the term

“includes.” The appellants took the position that the enumerated items were forms of cash, and they

objected to the money laundering statute only insofar as it “criminalized transactions not involving

cash.”

         There is a second form that a facial challenge could take in this case. One could challenge

the definition of “funds” as vague insofar as it extends outside the statutory list. This second

scenario for mounting a facial challenge is possible because the term “includes,” as a term of

“enlargement and not of limitation,”51 essentially creates an implied “catch-all” provision. Courts


facial vagueness challenges was “the subject of debate within the U.S. Supreme Court.” 77 S.W.3d
274, 278 (Tex. Crim. App. 2002). Our reading of Washington State Grange indicates that the debate
has been settled in favor of the Salerno standard, 552 U.S. at 449, but, as in that case, id., evaluation
of the money laundering statute under the “plainly legitimate sweep” standard would not alter our
disposition here. As our discussion will show, the existence of legitimate applications in this case
also shows that the statute has a “plainly legitimate sweep.”
         51
         “‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive
enumeration, and use of the terms does not create a presumption that components not expressed are
                                                                   ELLIS & COLYANDRO — 13

have recognized that a catch-all provision can be unconstitutionally vague on its face even if the

other, enumerated items in a statutory list are reasonably specific.52

       But a challenge to the implied catch-all provision in this case is defeated by the inclusion of

foreign bank drafts in the list. As we have observed above, the appellants claim that all of the items

in the statutory list of “funds” are forms of cash,53 and they claim that the term “funds” is vague to

the extent that it encompasses items other than cash. “Foreign bank drafts” is one of the enumerated

items in the list. For the appellants’ characterization of the list to be correct, then, foreign bank

drafts would have to be a form of cash, and in fact, the appellants (and the court of appeals) contend

that a foreign bank draft is a form of cash because payment is guaranteed by the bank. We need not

decide whether the characterization of foreign bank drafts as a form of cash is accurate. Assuming

its accuracy for the sake of discussion, the characterization would apply equally to domestic bank

drafts, also known as “cashier’s checks”—a fact the court of appeals recognized in its opinion. But

domestic bank drafts are not enumerated in the list, so they would be covered by the implied catch-

all provision. And because the implied catch-all provision would cover at least one form of

cash—domestic bank drafts, a.k.a. cashier’s checks—the appellants “cash only” position, if assumed




excluded.” TEX . GOV ’T CODE § 311.005(13).
       52
            City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769-70, 772 (1988)
(catch-all provision found to be unconstitutionally vague, remand to determine whether
unconstitutional provisions can be severed); State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998)
(error in instructing jury on facially unconstitutionally vague catch-all provision was harmless in
light of other nonvague provisions under which the jury was also instructed).
       53
          Sometimes the appellants and the court of appeals refer to “cash equivalents.” For the
sake of discussion, future references to “a form of cash” in this opinion include the term “cash
equivalents.”
                                                                    ELLIS & COLYANDRO — 14

to be true, establishes that the implied catch-all provision is facially constitutional.54

        What about the court of appeals’s contention that it had to resolve whether the statute was

constitutional “as applied” in order to resolve the appellants’ facial challenge? The short answer to

this question is that the appellants did not really advance a facial challenge, but advanced an “as

applied” claim that was disguised as a facial challenge. Addressing the “as applied” substance of

the claim resulted in a circumvention of the pretrial habeas cognizability limitations.

        With respect to the court of appeals’s reliance upon Hoffman Estates for the proposition that

it should examine the appellants’ conduct before analyzing other hypothetical applications of the

law, we observe that the decision in Hoffman Estates was issued after a full trial.55 When the

Supreme Court suggested addressing the complainant’s conduct first,56 it had a record detailing the

conduct in question. In the pretrial habeas action currently before us, all we have are the

indictments. Moreover, the rationale for first examining the conduct of the complaining party is that

a person “who engages in some conduct that is clearly proscribed cannot complain of the vagueness

of the law as applied to the conduct of others.”57 The suggestion that a complaining party’s conduct

should be examined first is designed to quickly dispose of unmeritorious facial claims. Given the

cognizability limitations and the sparse record in pretrial habeas proceedings, an appellate court

should not address a novel statutory construction argument when, under established law, the



        54
          Because domestic bank drafts are in common use, a facial challenge would fail even under
the “plainly legitimate sweep” standard advocated by the appellants.
        55
             455 U.S. at 493-94.
        56
             See id. at 495.
        57
             Id.
                                                                    ELLIS & COLYANDRO — 15

defendant’s facial challenge is clearly without merit.

        Moreover, the Hoffman Estates court upheld the facial validity of the ordinance at issue by

finding that “at least some of the items sold by [the complaining party] are covered” clearly by the

statutory language.58 The Supreme Court did not feel the need to comprehensively determine what

was and was not covered to uphold the facial constitutionality of the statute. It was enough to say

that some things were clearly covered. In the present case, the court of appeals held that checks are

not covered by the term “funds” because the term “funds” covers only forms of cash. In arriving at

its holding, the court of appeals necessarily determined that the items contained in the statutory list,

along with cashier’s checks, were forms of cash that clearly constituted “funds” under the money

laundering statute. Deciding that the term “funds” clearly covers at least those items that are forms

of cash would itself have been sufficient to defeat a facial vagueness challenge. There was no need

for the court of appeals to go further and decide that “funds” covered only forms of cash.

        Consequently, we sustain the State’s first ground for review, and we hold that the court of

appeals improperly resolved an “as applied” challenge when it held that the money laundering statute

did not apply to checks.

                                          B. Election Code

                                              1. Overview

        We begin with a brief overview of the evolution of the Supreme Court’s First Amendment

jurisprudence with respect to money in elections. In Buckley v. Valeo, the Court upheld limitations

on the amount of money a person may contribute to another person’s campaign59 but struck down


        58
             Id. at 500 (bracketed material inserted).
        59
             424 U.S. 1, 23-29 (1976).
                                                                    ELLIS & COLYANDRO — 16

limitations on independent expenditures made on behalf of a political cause or candidate.60 Although

a limitation upon the amount of money a person or group may contribute to a candidate or political

committee “entails only a marginal restriction upon the contributor’s ability to engage in free

communication,”61 a limitation upon independent expenditures “heavily burdens core First

Amendment expression.”62 The Court found that contribution limitations were sufficiently justified

by the danger of corruption or the appearance of corruption,63 while these dangers were not sufficient

to justify limitations on independent expenditures.64

       In Federal Election Comm’n v. Beaumont, the Court would later say that this disparate

treatment between contributions and independent expenditures was explained by a differing level

of scrutiny applied to the two categories of activity.65 Contribution regulations were justified so long

as they were “closely drawn to match a sufficiently important interest,” while expenditure regulations

had to be “narrowly tailored to serve a compelling government interest.”66

       In Austin v. Michigan State Chamber of Commerce, the Supreme Court held that limitations

on independent corporate expenditures were justified by a newly articulated, compelling government

interest in preventing the “corrosive and distorting effects of immense aggregations of wealth that



       60
             Id. at 39-56.
       61
             Id. at 20-21.
       62
             Id. at 47-48.
       63
             Id. at 26-28.
       64
             Id. at 45-48.
        65
             539 U.S. 146, 161-62 (2003).
       66
             Id. at 162.
                                                                   ELLIS & COLYANDRO — 17

are accumulated with the help of the . . . unique state-conferred corporate structure.”67 Beaumont

was decided after Austin and cited Austin for the proposition that the “special characteristics of the

corporate structure” could threaten the integrity of the political process.68 But the Beaumont case

involved a ban on corporate contributions, rather than on expenditures, and the statute was analyzed

under the more traditional rationale of preventing corruption.69 In addition to preventing “war-chest”

corruption, the Beaumont court explained that a ban on corporate contributions also served to prevent

individuals from using the corporate form to circumvent valid contribution limits.70 Recently, in

Citizens United v. Federal Election Comm’n,71 the Supreme Court overruled Austin and held that

the government could not place limitations upon independent corporate expenditures.72

                                   2. Standard of Review

       Colyandro contends that the court of appeals should have reviewed the Election Code

provisions under strict scrutiny—the compelling government interest test—rather than under the

more lenient “sufficiently important interest” test applied to contributions in Buckley and Beaumont.

First, Colyandro argues that strict scrutiny should apply to the extent that a law carries criminal

sanctions. In support of this proposition, he cites Reno v. American Civil Liberties Union.73 Reno



       67
            494 U.S. 652, 660 (1990).
       68
            Beaumont, 539 U.S. at 153.
       69
            Id. at 154.
       70
            Id. at 155.
       71
            130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).
       72
            Citizens United, 130 S. Ct. at 912-13, 175 L. Ed. 2d at 798-99.
       73
            521 U.S. 844 (1997).
                                                                    ELLIS & COLYANDRO — 18

is not on point because that opinion addressed the constitutionality of the Communications Decency

Act,74 not the regulation of political contributions. If the Supreme Court’s caselaw were devoid of

political contribution decisions, then we might look to Reno for guidance, but that is not the situation

here, as we have Buckley and Beaumont to guide us.

        Colyandro asserts that Buckley and Beaumont are distinguishable because the laws addressed

in those cases “involved civil regulations on contributions, as opposed to criminal penalties.” We

find that Colyandro is mistaken in that regard. The Buckley lawsuit sought declaratory and

injunctive relief.75 The Attorney General of the United States was named as one of the defendants,76

presumably because the plaintiffs feared potential criminal liability. Indeed, Colyandro observes that

the independent expenditure limitations in Buckley did carry criminal penalties, and he cites the

“expenditures” portion of the Buckley opinion for the proposition that “close examination” is

required when “the legislation imposes criminal penalties in an area permeated by First Amendment

interests.”77 But Colyandro overlooks the fact that the contribution limitations also carried criminal

penalties, which was taken into account by the Court in Buckley, which held that the expenditure

limitations were not needed to enforce the valid limitations upon contributions: “There is no

indication that the substantial criminal penalties for violating the contribution ceilings combined with

the political repercussion of such violations will be insufficient to police the contribution




        74
             Id.
        75
             Buckley, 424 U.S. at 8-9.
        76
             Id. at 8.
        77
             See id. at 40-41.
                                                                   ELLIS & COLYANDRO — 19

provisions.”78

       Beaumont involved a lawsuit by a corporation against the Federal Election Commission that

challenged the constitutionality of a federal statute and some FEC regulations,79 and it appears to

have been in essentially the same procedural posture as Buckley. The Beaumont court recognized

the criminal sanctions attached to illegal corporate contributions: “[M]uch of the periodic

amendment [of election laws] was meant to strengthen the original, core prohibition on direct

corporate contributions. The Foreign Corrupt Practices Act of 1925, for example, broadened the ban

on contributions to include ‘anything of value,’ and criminalized the act of receiving a contribution

to match the criminality of making one.”80 Applying strict scrutiny to an election statute on the basis

that it carries a criminal penalty would also conflict with Beaumont’s pronouncement that “the

degree of scrutiny turns on the nature of the activity regulated.”81

       Colyandro next argues that Buckley is distinguishable because it limited only the size of

contributions, while the election statutes at issue here ban corporate contributions in their entirety.

But Beaumont dealt with a ban on corporate contributions,82 and Colyandro acknowledges that, in

that case, the Supreme Court “held that a ban on direct corporate contributions does not change its

analytical approach to the constitutional question.” The Supreme Court explained that “restrictions

on political contributions have been treated as merely ‘marginal’ speech restrictions subject to


       78
            Id. at 55-56.
       79
            Beaumont, 539 U.S. at 149-50.
       80
            Id. at 153 (bracketed material added).
       81
            See id. at 162.
       82
            Id. at 161-62.
                                                                     ELLIS & COLYANDRO — 20

relatively complaisant review under the First Amendment, because contributions lie closer to the

edges than to the core of political expression.”83 According to the Court: “It is not that the difference

between a ban and a limit is to be ignored; it is just that the time to consider it is when applying

scrutiny at the level selected, not in selecting the standard of review itself.”84 Nevertheless,

Colyandro claims that “the Court has yet to rule on whether such a ban on contributions demands

strict scrutiny when the statute at issue also imposes criminal penalties for violations,” but as we

have explained above, Colyandro is simply mistaken in that regard.

        Finally, in a supplemental-authority letter, Colyandro suggests that our analysis should be

affected by the recent Supreme Court decision in Citizens United.85 Colyandro acknowledges that

“the Supreme Court’s explicit holding was limited to campaign expenditures,” but he contends that

“the ruling marks a philosophical shift in the Court’s treatment of restrictions on corporate free

speech.” Colyandro argues: “Given the fact that contributions are a type of political speech, Citizens

United’s broad language concerning the unlawfulness of restrictions on corporate speech logically

extends to restrictions on corporate campaign contributions.”

        Although we agree that Citizens United has significantly affected the constitutional landscape

with respect to corporate free speech by removing restrictions on independent corporate

expenditures, we disagree with Colyandro’s contention that the decision has had any effect on the

Court’s jurisprudence relating to corporate contributions. The Court explained that Buckley




        83
             Id. at 161.
        84
             Id. at 162.
        85
             Citizens United was handed down after the oral arguments in the present case.
                                                                    ELLIS & COLYANDRO — 21

“distinguished direct contributions to candidates from independent expenditures.”86 The Court found

that a later case had “little relevance” to the issue at hand because it “involved contribution limits,

which, unlike limits on independent expenditures, have been an accepted means to prevent quid pro

quo corruption.”87

       Two concurring opinions in Citizens United suggest continued support for the Court’s prior

pronouncements regarding corporate contributions. Chief Justice Roberts, joined by Justice Alito,

remarked that Austin was an “aberration” that “undermined the careful line that Buckley drew to

distinguish limits to contributions to candidates from limits on independent expenditures on

speech.”88 The Chief Justice also explained that Beaumont, and certain other cases decided after

Austin, did not in any way “reaffirm” Austin’s holding.89 Justice Scalia observed that corporations

are entitled to First Amendment protection because they are simply “associations of individuals.”90

If it is unconstitutional to limit an individual’s independent expenditure, then it is necessarily

unconstitutional to limit expenditures made by associations of individuals.91 But if it is legitimate

to limit an individual’s contributions (Buckley), then it follows that laws can be enacted to prevent


       86
            Citizens United, 130 S. Ct. at 901-02, 175 L. Ed. 2d at 785-86.
       87
          Id., 130 S. Ct. at 909, 175 L. Ed. 2d at 794 (discussing Federal Election Comm’n v.
National Right to Work Comm., 459 U.S. 197, 210, 103 S. Ct. 552, 74 L. Ed. 2d 364 (1982)).
       88
            Citizens United, 130 S. Ct. at 921, 175 L. Ed. 2d at 807-08 (Roberts, C.J., concurring).
       89
            Id., 130 S. Ct. at 919-20, 175 L. Ed. 2d at 806.
       90
            Id., 130 S. Ct. at 929, 175 L. Ed. 2d at 816 (Scalia, J., concurring).
       91
           See id. (“The [First] Amendment is written in terms of ‘speech,’ not speakers. Its text
offers no foothold for excluding any category of speaker, from single individuals to partnerships of
individuals, to unincorporated associations of individuals, to incorporated associations of
individuals.”)
                                                                    ELLIS & COLYANDRO — 22

associations of individuals from being used to circumvent those contribution limits (Beaumont).

                                             3. Vagueness

        When First Amendment freedoms are implicated, a criminal law must: (1) be sufficiently

clear to afford a person of ordinary intelligence a reasonable opportunity to know what is prohibited,

(2) establish determinate guidelines for law enforcement, and (3) be sufficiently definite to avoid

chilling protected expression.92        When a vagueness challenge involves First Amendment

considerations, a criminal law may be held facially invalid even if the law has some valid

application.93 “But perfect clarity and precise guidance have never been required even of regulations

that restrict expressive activity.”94

        Colyandro’s prosecution arises from the interplay of several provisions of the Election Code.

Texas Election Code § 253.003 provides in relevant part that “[a] person may not knowingly accept

a political contribution the person knows to have been made in violation of this chapter.”95 Under

§ 253.094, “[a] corporation . . . may not make a political contribution . . . that is not authorized by

this subchapter.”96 A “contribution” is “a direct or indirect transfer of money, goods, services, or any

other thing of value,”97 and a contribution constitutes a “political contribution” if it is “a campaign


        92
             Long, 931 S.W.2d at 287.
        93
          Id. at 288 (if First Amendment is involved, “criminal law may be held facially invalid even
though it may not be unconstitutional as applied to the defendant’s conduct”).
        94
          United States v. Williams, 553 U.S. 285, 304 (2008) (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 794 (1989)) (internal quotation marks omitted).
        95
         T    EX . ELECTION   CODE § 253.003(b).
        96
             Id., § 253.094(a).
        97
             Id., § 251.001(2).
                                                                   ELLIS & COLYANDRO — 23

contribution or an officeholder contribution.”98 A “campaign contribution” 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.”99

                                          a. Issue Advocacy

       Colyandro argues that this statutory scheme is unconstitutionally vague because a corporation

that makes a contribution for the purpose of advocating an issue would not know whether the

contribution was legal. He asks: “[I]f a certain political candidate is the only person supporting a

particular measure, and the corporation knows that any money given to a political committee

supporting the measure would assist this candidate’s campaign, then has the corporation made a

contribution ‘in connection with’ a campaign for elective office?” Colyandro observes that the

Election Code allows certain corporate contributions in support of measures, but he overlooks the

significance of the wording of the provision in question.

       As we explained above, corporate political contributions are prohibited unless authorized in

the Election Code. The Code authorizes corporate contributions on a measure under the following

circumstances: “A corporation . . . may make campaign contributions from its own property in

connection with an election on a measure only to a political committee for supporting or opposing

measures exclusively.”100 Under this statute, a corporation can contribute money to support or

oppose a measure, but only if it gives that money to an entity devoted exclusively to measures, i.e.

an entity that does not contribute to candidates. A corporation violates the law if it makes a


       98
             Id., § 251.001(5).
       99
             Id., § 251.001(3).
       100
             Id., § 253.096.
                                                                   ELLIS & COLYANDRO — 24

contribution to a political committee for the purpose of supporting or opposing a measure if that

political committee also contributes to candidates. The exclusivity aspect of the provision seems

designed to prevent diversion of funds from an acceptable purpose (supporting or opposing a

measure) to an unacceptable purpose (supporting or opposing a candidate). A corporation can be

confident that it is following the law if the contribution is given to a political committee devoted

exclusively to measures because that political committee cannot make a contribution to a candidate.

And a corporation can be equally confident that a political contribution given to an entity that is not

devoted exclusively to measures is a violation of the law unless authorized by another provision of

the Election Code. Corporations are also allowed to contribute to political parties under certain

circumstances.101

                                           b. Designation

       Colyandro also contends that the court of appeals’s holding that the election statute is not

vague hinges upon the court’s determination that a person can “designate” the purpose of a

contribution. But, he argues, the whole point of Buckley’s holding with respect to contributions is

that the contributor does not have to designate anything—it is the person who receives the

contribution who decides how the money is spent. If a corporation must designate the purpose for

which a contribution is used, then, Colyandro contends, the contribution becomes “closer to an

expenditure” under the Supreme Court’s jurisprudence.

       An understanding of the court of appeals’s “designation” discussion requires an examination

of some arguments made by Colyandro in the court of appeals. Colyandro suggested two scenarios

in which the Election Code failed to provide adequate guidance regarding what conduct is


       101
             See id., §§ 253.104, 257.001, 257.002, 257.004.
                                                                   ELLIS & COLYANDRO — 25

prohibited. First, he contended that a corporation might wish to make a donation to a group that

advocates in favor of a particular issue. We have addressed this argument above. A corporation may

make a political contribution to a group that favors a measure but only if the group does not

contribute to candidates. In a sense, the corporation “designates” the purpose of the contribution by

giving it to a group that can use it only for a certain purpose.

         The second scenario Colyandro presented to the court of appeals was based on § 253.100,

which governs expenditures made by a corporation to finance the establishment or administration

of a general-purpose committee.102 Colyandro contended that this law allowed TRMPAC to accept

corporate money for establishment and administration, but he contended that the law offered no clear

definition of the phrase “establishment or administration,” so that a corporate donor would have to

guess whether a donation would fit that category.

       Under § 253.100, a corporation may create its own political committee.103 The corporation

may then use this political committee to solicit contributions from shareholders, employees, and their

families.104 The corporation is permitted to make expenditures for the maintenance and operation

of the committee.105      The Legislature set out a list of twelve items included as qualifying

expenditures (e.g., office equipment and utilities)106 and a list of eight items for which expenditures




       102
             See id., § 253.100.
       103
             See id., § 253.100(a).
       104
             Id., § 253.100(b).
       105
             Id., § 253.100(a).
       106
             Id., § 253.100(a)(1)-(12).
                                                                   ELLIS & COLYANDRO — 26

may not be made.107 It appears that contributions made by a corporation to such a committee would

not be considered to be expenditures.108 But even assuming that they could be considered the same,

it is nevertheless clear that § 253.100 contemplates expenditures made by a corporation for certain

purposes. A contribution with no strings attached would not qualify as such an expenditure.

       To the extent that the court of appeals may have suggested that there is no such thing as an

undesignated corporate political contribution, the error it made was minor. It would be more

accurate to say that there is no such thing as a legal undesignated corporate political contribution.

Individuals can legally make undesignated political contributions, but corporations cannot. A

corporation must designate the purpose of the political contribution by contributing to a political

committee that is exclusively devoted to measures, by making expenditures for maintenance or

operation of a corporate political committee, or by contributing to a political party under certain

narrowly defined conditions.

                                         c. “in connection with”

       Colyandro also argues that the phrase “in connection with a campaign for elective office” is

unconstitutionally vague for the same reasons that the phrase “relative to a clearly identified

candidate” was found problematic in Buckley. But the Supreme Court’s problem with the latter

phrase arose in the context of independent expenditures, not contributions.109 The Court addressed

a similarly broad phrase, “‘for the purpose of influencing’ an election,” and found that its use



       107
             Id., § 253.100(d)(1)-(8).
       108
          See id., § 251.001(8)(“‘Direct campaign expenditure’ means a campaign expenditure that
does not constitute a campaign contribution by the person making the expenditure”).
       109
             Buckley, 424 U.S. at 39-44.
                                                                   ELLIS & COLYANDRO — 27

presented “fewer problems in connection with the definition of a contribution because of the limiting

connotation created by the general understanding of what constitutes a political contribution.”110

Under this limited definition, “[f]unds 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.”111 Moreover, though the Court did not address a vagueness argument

in Beaumont, it is nevertheless worth pointing out that the Court upheld against a First Amendment

challenge the contribution aspect of a statute that makes it “unlawful . . . for any corporation

whatever . . . to make a contribution or expenditure in connection with” certain federal elections.112

        Colyandro points to the Supreme Court’s statement that “the distinction between discussion

of issues and candidates and advocacy of election or defeat of candidates may often dissolve in

practical application.”113     Again, this statement was made with respect to independent

expenditures.114 The Supreme Court has not suggested that a similar problem arises with respect to

contributions. The problem arises with respect to independent expenditures because expenditures

on some types of speech are allowed while others are not, and the dividing line between them is




       110
             Id. at 24 n.24.
       111
             Id.
       112
           539 U.S. at 149. As with our statute, the federal election statute allowed a corporation
to form a political committee for the purpose of soliciting contributions from its shareholders and
employees. Id.
       113
             Buckley, 424 U.S. at 42.
       114
             Id.
                                                                     ELLIS & COLYANDRO — 28

wholly subjective.115 But, as Colyandro has pointed out, and as with the statute in Beaumont, the

Election Code provisions at issue here effect a complete ban on undesignated corporate political

contributions.116

                                                d. Intent

        Finally, Colyandro contends that vagueness inheres in the requirement that the contribution

be made “with the intent that it be used” for prohibited purposes. He claims that a contributor

cannot know whether the intended use of the contribution would be construed as being in connection

with a campaign for political office117 and that the recipient cannot know the intent of the contributor,

especially if the contributor is a corporation. Colyandro further argues that enforcement of the law

is virtually impossible because law enforcement will not be able to ascertain the intent of the

corporate contributor or the recipient:

        Given that the Election Code does not force the corporate contributor to report the
        purpose of the contribution, law enforcement will be hard-pressed to determine when
        an acceptor of an unlawful contribution actually knew that the contribution was given
        with an unlawful intent. Likewise, prosecuting a corporate contributor for
        intentionally making an unlawful contribution would be close to impossible in the
        absence of a legislative requirement that the corporation report the purpose of the
        contribution.

But the Supreme Court has held that the practical difficulty a factfinder may have in ascertaining


        115
              Id. at 42-43.
        116
           See Beaumont, 539 U.S. at 161-63 (corporate participation limited to establishing and
paying the administrative expenses of political action committees).
        117
            Our discussions above have largely answered the contention that a contributor cannot
know whether the contribution will be construed as intended for use in connection with a campaign
for elective office. Corporations are not permitted to make undesignated political contributions.
What remains to be addressed is the possibility that a contribution does not qualify as a “political
contribution” because it is not intended to be used in connection with an election, e.g., a contribution
made for the purpose of lobbying the legislature.
                                                                    ELLIS & COLYANDRO — 29

intent does not render a law unconstitutionally vague:

       What renders a statute vague is not the possibility that it will sometimes be difficult
       to determine whether the incriminating fact it establishes has been proved; but rather
       the indeterminacy of precisely what that fact is. Thus, we have struck down statutes
       that tied criminal culpability to whether the defendant’s conduct was “annoying” or
       “indecent”—wholly subjective judgments without statutory definitions, narrowing
       context, or settled legal meanings. There is no such indeterminacy here. The statute
       requires that the defendant hold, and make a statement that reflects, the belief that the
       material is child pornography; or that he communicate in a manner intended to cause
       another so to believe. Those are clear questions of fact. Whether someone held a
       belief or had an intent is a true-or-false determination, not a subjective judgment such
       as whether conduct is “annoying” or “indecent.” Similarly true or false is the
       determination whether a particular formulation reflects a belief that material or
       purported material is child pornography. To be sure, it may be difficult in some cases
       to determine whether these clear requirements have been met. “But courts and juries
       every day pass upon knowledge, belief and intent—the state of men’s minds—having
       before them no more than evidence of their words and conduct, from which, in
       ordinary human experience, mental condition may be inferred.”118

Moreover, the Supreme Court has long since taken the position that intent can be ascertained with

respect to corporations for the purpose of imposing criminal liability:

        Mr. Chief Justice Feld, said: “We think that a corporation may be liable criminally
       for certain offenses of which a specific intent may be a necessary element. There is
       no more difficulty in imputing to a corporation a specific intent in criminal
       proceedings than in civil.”

                                                ***

       It is true that there are some crimes, which in their nature cannot be committed by
       corporations. But there is a large class of offenses, of which rebating under the
       Federal statutes is one, wherein the crime consists in purposely doing the things
       prohibited by statute. In that class of crimes we see no good reason why corporations
       may not be held responsible for and charged with the knowledge and purposes of
       their agents, acting within the authority conferred upon them.119


       118
             Williams, 553 U.S. at 306 (citation omitted).
       119
           New York Central & Hudson Riv. R.R. Co. v. United States, 212 U.S. 481, 483 (1909)
(quoting Chief Justice Feld in Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 297, 52
N.E. 445, 446 (1899)).
                                                                     ELLIS & COLYANDRO — 30

The Election Code provisions at issue require that a contributor have a certain intent before the

contribution is deemed illegal, and it requires that a recipient know that a contribution is in fact

illegal, which entails knowing the intent of the contributor, before imposing criminal liability. The

State has the burden to prove the applicable culpable mental states, and if it cannot, then a defendant

charged under these provisions is entitled to an acquittal.

        We conclude that the Election Code provisions at issue here are not facially unconstitutional

due to vagueness.

                                            4. Overbreadth

        To vindicate First Amendment interests and prevent a chilling effect on the exercise of First

Amendment freedoms, the overbreadth doctrine allows a statute to be invalidated on its face even

if it has legitimate application, and even if the parties before the court have suffered no constitutional

violation.120 The overbreadth doctrine is “strong medicine” that should be employed “sparingly” and

“only as a last resort.”121 “[T]he overbreadth of a statute must not only be real, but substantial as

well, judged in relation to the statute’s plainly legitimate sweep.”122

        Colyandro contends that the restrictions on corporate contributions are overbroad because

they encompass issue advocacy by prohibiting some contributions with respect to measures. He

argues: “[I]f an election on a measure coincides with a political candidate’s support for this measure,

then a contribution to an election on this measure is ‘in connection with’ that candidate’s campaign,

especially if the candidate is one of the sole supporters of the measure. However . . . § 253.094


        120
              Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
        121
              Id. at 613.
        122
              Id. at 615.
                                                                   ELLIS & COLYANDRO — 31

would prevent such issue advocacy . . . .”

       Colyandro’s contention about the operation of the statute is not entirely correct. As we

explained above in connection with his vagueness claim, a corporation may make a political

contribution with respect to a measure, so long as the contribution is to a political committee devoted

exclusively to measures.123 That a particular candidate may be associated with the measure has no

effect on this authorization. As we also explained above, it is true that a corporation may not make

a political contribution with respect to a measure to a political committee that also contributes to

candidates.124 That is so, regardless of whether or not a particular candidate is associated with the

measure in question.

       We decide that the prohibition against making corporate political contributions on a measure

to a mixed-purpose political committee is “closely drawn to match a sufficiently important

interest.”125 This prohibition serves to prevent the diversion of corporate “measure” money to

candidates, and thus ensures that the prohibition against corporate contributions to candidates will

not be circumvented.126 The law is narrowly drawn because it addresses a narrow aspect of political

association while allowing corporations several alternate avenues for political expression with




       123
         T    EX . ELECTION    CODE, § 253.096.
       124
             Id.; § 253.094.
       125
            As we have already explained above, the “sufficiently important interest” test, not strict
scrutiny, is the appropriate standard. See Buckley, 424 U.S. at 25-29; Beaumont, 539 U.S. at 162.
       126
           See Beaumont, 539 U.S. at 155 (important interest in preventing the circumvention of
valid contribution limits).
                                                                   ELLIS & COLYANDRO — 32

respect to measures.127 First and most obviously, a corporation may contribute to a political

committee devoted exclusively to measures.128 Second, a corporation may create its own political

committee, which can then solicit contributions from the corporation’s shareholders, employees, and

their families, and any contributions received may then be contributed without being subject to

corporate limitations.129 Finally, a corporation may make independent expenditures (e.g., buy its

own issue ads), make press releases, and otherwise have its agents directly engage in communication

with respect to a measure (or a candidate, for that matter).130 To the extent that Colyandro’s

arguments address more broadly the concept of issue advocacy, regardless of whether a measure is

slated for election, the second and third avenues detailed above afford sufficient avenues for free




       127
            See Buckley, 424 U.S. at 28-29 (“The Act’s $1,000 contribution limitation focuses
precisely on the problem of large campaign contributions -- the narrow aspect of political association
where the actuality and potential for corruption have been identified -- while leaving persons free
to engage in independent political expression, to associate actively through volunteering their
services, and to assist to a limited but nonetheless substantial extent in supporting candidates and
committees with financial resources.”).
       128
         T   EX . ELECTION   CODE § 253.096.
       129
         T EX . ELECTION CODE § 253.100; see also id., § 253.092 (“If a political committee the
only principal purpose of which is accepting political contributions and making political
expenditures incorporates for liability purposes only, the committee is not considered a corporation
for purposes of this subchapter.”). See Beaumont, 539 U.S. at 162-63 (“[T]he section permits some
participation of unions and corporations in the federal electoral process by allowing them to establish
and pay the administrative expenses of (PACs). The PAC option allows corporate political
participation without the temptation to use corporate funds for political influence, quite possibly at
odds with the sentiments of some shareholders or members, and it lets the government regulate
campaign activity through registration and disclosure, without jeopardizing the associational rights
of advocacy organizations’ members.”) (Citations and internal quotation marks omitted).
       130
            See Buckley, 424 U.S. at 28-29. See also Citizens United, passim (overturning federal
limitations on corporate independent expenditures).
                                                                   ELLIS & COLYANDRO — 33

expression.131 We reject Colyandro’s overbreadth contention.

                                       III. CONCLUSION

       We sustain the State’s first ground for review and hold that the court of appeals should not

have addressed an “as applied” challenge to the money laundering statute. However, we agree with

the court of appeals’s conclusion that the Election Code provisions are not facially unconstitutional.

Therefore, we affirm the judgment of the court of appeals.



Delivered: April 28, 2010
Publish




       131
             See Buckley, 424 U.S. at 28-29; Beaumont, 539 U.S. at 162-63.
