A lawyer representing a recall group admitted in court on Wednesday that churches were used to circulate petitions against Mayor John Cook and city Reps. Susie Byrd and Steve Ortega.
But the lawyer, Joel Oster, said that did not mean the group violated Texas election law. And even if they did, the law is unconstitutional, he said.
Oster made the admission during a hearing in which County Court-at-Law 3 Judge Javier Alvarez denied a request to throw out Cook's lawsuit against the recall group.
Oster's disclosure may bolster Cook's argument that signatures were gathered in violation of state election law, but it also appears to set the stage for a constitutional argument that some experts have said could go to the U.S. Supreme Court.
The recall group, El Pasoans for Traditional Family Values, has gathered enough signatures against Cook, Byrd and Ortega to have a recall election in May. Its members are incensed that the three voted this year to restore health benefits to gay and unmarried partners of city employees after voters last November passed -- by a wide margin -- a ballot initiative ending the practice.
Cook is suing, claiming that the group, led by Pastor Tom Brown, acted illegally by using churches to help conduct the petition drive.
In a related development, the recall group is countersuing Cook, personally and as mayor. That means the city government is now officially part of the fight.
Oster did not quibble on Wednesday with Cook's claim that churches have participated in the recall.
"We will concede," said Oster, senior counsel with the Alliance Defense Fund, a national group dedicated to helping churches challenge legal limits to their political activity. "We admit that they had established in their petition clear and convincing evidence" of churches' participation.
In the past, some members of the group denied that churches were involved while other members of the group declined to answer questions about it.
Noting that churches are non-profit corporations, Cook alleges that violates a provision in the election code that says, "A corporation or labor organization may not make a political contribution in connection with a recall election, including the circulation and submission of a petition to call an election."
Oster, of Leawood, Kan., said the law doesn't mean that circulating or submitting a petition is the same thing as making a political contribution.
"They've never alleged that a political contribution has been made," Oster said of Cook and his lawyers. Oster later added that for that to happen, Cook would have to allege a "political expenditure with the prior consent and approval of a candidate affected."
Cook's attorney, Mark Walker, has said Oster's comments misread the plain language of the law -- that if a corporation helps circulate a recall petition, it is making an illegal political contribution.
Oster's admission on Wednesday is particularly noteworthy because violations of that part of the election code are punishable as a third-degree felony. District Attorney Jaime Esparza is considering whether to bring charges against Brown, pastor of Word of Life Church.
But Oster and his organization seem poised to challenge the constitutionality of any finding -- civil or criminal -- that churches and other corporations can't help circulate and submit recall petitions.
He said that would violate a decision last year by the U.S. Supreme Court that said corporations are allowed to make unlimited, independent campaign expenditures.
"Citizens United is directly on-point," Oster said, referring to the decision in Citizens United v. Federal Election Commission. "It's not even close."
But Floyd Abrams, a First Amendment lawyer who briefed the Supreme Court in support of Citizens United, last month told the Times that the court purposely did not address corporate contributions other than independent campaign expenditures.
He and other experts said that might make the El Paso recall case a prime issue for the Supreme Court to consider.
Marty Schladen may be reached at email@example.com; 546-6127.