CREW v. FEC (New Models)

At a Glance

This case considers whether the FEC can shield its enforcement decisions from any court review whenever a minority of commissioners invoke “prosecutorial discretion” as one reason for dismissing serious alleged violations of campaign finance law.

Status
Closed
Updated
Issues
Campaign Finance
About This Case/Action

The Center for Responsibility and Ethics in Washington (CREW) filed an administrative complaint with the Federal Election Commission (FEC) in 2014, alleging that a self-described 501(c)(4) “issues” group called New Models had violated important transparency provisions in federal campaign finance law by spending millions of dollars to influence the 2012 elections without registering as a political committee and making required disclosures about its activities and donors.

The administrative complaint detailed how New Models funneled millions of dollars—and a substantial majority of its annual budget—to super PACs in 2012, demonstrating that its “major purpose” was influencing elections for federal office. Although the FEC’s General Counsel recommended finding that there was reason to believe New Models had violated the law, the Commission deadlocked 2-2 and closed the case.

CREW’s lawsuit challenges the decision of the two FEC commissioners who voted to dismiss its complaint and asks the court to direct the FEC to take action to determine whether New Models failed to make required disclosures.

These two no-voting commissioners, whose decision is considered “controlling” for the purposes of court review, explained why they found that New Models was not required to register and report as a political committee in a lengthy written analysis of the statute and judicial precedent. CREW argues the commissioners’ analysis relied on incorrect interpretations of the campaign finance laws and should be set aside.

However, because the no-voting commissioners also included a perfunctory reference to the FEC’s “prosecutorial discretion” in the final sentence of their 31-page Statement of Reasons, the lower court concluded that it could not review the legal merits of their analysis. Instead, it found that a recent D.C. Circuit decision makes any FEC enforcement dismissal containing even a glancing reference to “prosecutorial discretion” automatically unreviewable in court—however much the dismissal was actually based on faulty legal analysis.

CREW appealed the district court’s ruling to the D.C. Circuit Court of Appeals.

CLC filed a friend-of-the-court brief in the D.C. Circuit in October 2019. The brief argues that the district court’s decision should be set aside because it rests on an unwarranted expansion of the FEC’s enforcement discretion that conflicts with Congress’s clear intent to provide for judicial review of the FEC’s refusal to take action on citizen complaints. The brief also argues that giving partisan minority blocs of commissioners the ability to shut down all judicial review of their decisions frustrates the careful partisan balance reflected in nearly every aspect of the agency’s design.

What’s at stake?

Transparency is a core purpose of the federal campaign finance laws, which mandate accurate reporting from individuals, groups, and entities that raise and spend money to influence federal elections. One key means of accomplishing this goal is by requiring registration and comprehensive reporting for “political committees,” groups that make $1,000 in contributions or expenditures in a calendar year and have a major purpose of influencing federal elections.

But the efficacy of these crucial transparency provisions depends on an FEC that enforces the law. Deadlocks at the six-member FEC—which requires four affirmative votes to take most actions—have persistently stymied enforcement action, especially in cases involving disclosure violations like those allegedly committed by New Models. When the FEC or a controlling bloc of commissioners refuses to take action on an enforcement complaint based on a legally unsustainable rationale, the courts must step in to correct the error. Preserving a robust judicial check on the Commission’s failure to enforce the law is a key means of securing a more accountable FEC.

Plaintiffs

Citizens for Responsibility and Ethics in Washington (CREW) 

Defendant

Federal Election Commission (FEC)

CLC, Arkansas Voters First File Suit To Challenge Signature Requirement, Allow Citizens’ Voice in Redistricting

Date
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Suit Seeks to Allow Safe Ballot Signature Collection for Anti-Gerrymandering Initiative During Pandemic

Fayetteville, AR – Arkansas Voters First, an independent non-profit organization advocating for a non-partisan redistricting commission in the state, filed a complaint in U.S. District Court for the Western District of Arkansas seeking relief from state guidelines making it impossible to collect the requisite signatures for placing a constitutional amendment on the ballot during the COVID-19 pandemic. They are represented by Campaign Legal Center (CLC), a national nonprofit group that seeks to expand access to the democratic process.

“We have a right to petition our government to amend our constitution.  We don’t have the luxury of waiting until next year,” said Bonnie Miller, Director of Arkansas Voters First and President of the League of Women Voters of Washington County.“If we are denied access to the ballot this year, Arkansas could be stuck with unfair and unrepresentative districts for another ten years.”

At issue in 2020 is whether voters will have the chance to vote in November on an initiative to remove the power of redistricting from politicians and create an independent citizens’ redistricting commission. Arkansas is the eighth worst gerrymander in the U.S., according to USC’s Schwarzenegger Institute.

For a constitutional amendment to be allowed onto the ballot, Arkansas requires over 89,000 signatures of registered voters be collected in the presence of a canvasser who must then appear before a notary public to attest that they witnessed the voter sign the petition. Due to the current global public health crisis, collecting signatures in-person – and complying with onerous witness requirements – create a substantial risk to both the canvasser and the voter. Many potential signees live in places like nursing homes and are unable to leave their homes or have visitors to sign petitions.

“Every voice should be heard in our democracy, and every vote should count equally,” said Paul Smith, vice president at CLC. “Arkansans deserve the right to decide whether their voting district maps will be drawn by a neutral commission or politicians pursuing a partisan agenda."

The complaint asks the court to take actions that will allow voters to exercise their constitutional right to petition for the redistricting amendment without jeopardizing the health and safety of fellow Arkansans.

There is strong bipartisan support for the Arkansas Citizen’s Redistricting Commission Amendment among likely 2020 general election voters. According to a nonpartisan poll commissioned by Arkansas Voters First, 58% of all voters support the creation of independent redistricting commissions.

The lawsuit advocates for the following protections for voters:

  • No witness requirement for petition signatures (and therefore no notarization by canvassers that they witnessed the petitioners sign the petition);
  • A reduction in the total amount of signatures required;
  • A delay to the signature submission deadline beyond July 3; and
  • Submission of electronic signatures.

Plaintiffs include:

Bonnie Miller – Director of Arkansas Voters First, Inc and Chairperson of Arkansas Voters First ballot question committee.  Miller is also President of the League of Women Voters of Washington County, a board member of the League of Arkansas, and the Chair of Redistricting Initiatives with the League of Arkansas.

Arkansas Voters First, Inc.  Individuals began working on a ballot initiative supporting independent redistricting in 2017.  The group was formally incorporated in February 2020.

Adella Gray – Former Fayetteville City Councilwoman. Ms. Gray has been an active public servant most of her adult life, previously serving on the Fayetteville City Council and as an elementary school counselor in the Springdale Public Schools.  Ms. Gray is supportive of the ballot measure and would like to sign the petition, but is unable to have a notarized signature collector establish an in-person meeting at her residence in a retirement village.

Bob Allen – Dr. Bob Allen is an emeritus professor at Arkansas Tech University, where he specialized in organic and environmental chemistry. Dr. Allen is currently undergoing chemotherapy to fight cancer. Requiring Dr. Allen to meet in person with a canvasser puts his health in great jeopardy.  Should Dr. Allen contract the Coronavirus from a canvasser, his compromised immune system would likely subject him to a significantly increased risk of hospitalization or even death.

**

Arkansas Voters First, Inc. was just beginning the process of collecting petition signatures when the Governor issued a state of emergency effectively eliminating any ability to collect signatures for any state ballot initiatives.  In addition to collecting signatures electronically – as is commonly done in legal and financial transactions throughout the state – Arkansas Voters First is asking the court to reduce the total number of signatures it must collect due to the exceptional circumstances created by COVID-19 and social distancing.

Issues
Redistricting

Miller v. Thurston (Arkansas Redistricting Initiative)

At a Glance

CLC is challenging Arkansas’ onerous requirements to get a ballot initiative before voters. CLC’s client, Arkansas Voters First, is seeking to put an independent redistricting commission on the 2020 ballot.

Status
Closed
Updated
Issues
Redistricting
About This Case/Action

Campaign Legal Center (CLC) is representing Arkansas Voters First, a nonpartisan grassroots organization that is fighting gerrymandering by seeking to let Arkansas voters have a say in the redrawing of district lines through an independent commission. Arkansas is the eighth worst gerrymander in the U.S., according to USC’s Schwarzenegger Institute.

The lead plaintiff is Bonnie Miller, President of The League of Women Voters – Washington County, Arkansas. Miller is one of the leaders of the signature campaign.

On April 22, 2020, CLC and Arkansas Voters First filed a lawsuit against Arkansas Secretary of State John Thurston to seek several protections for voters who wish to have their voice heard in the democratic process while also protecting their health. The suit asks the court to waive witness requirements for petition signatures, delay the submission deadline beyond July 3 and allow for the submission of electronic signatures.

State law requires us to get 89,151 signatures to appear on the ballot, an enormous burden given social distancing. Even more problematic is the witness requirement. Arkansas has one of the most onerous requirements in the country. Not only must the signatures be witnessed, the canvassers must swear an oath before a notary public that they witnessed the signatures.

Under ordinary circumstances this would be difficult work, but during a global pandemic, this requirement is nearly impossible. Many potential signees, including plaintiff Adella Gray, live in places like retirement communities and are unable to leave their homes or have visitors to sign petitions. Gray is also immunocompromised and at a higher risk for contracting coronavirus.

There is strong bipartisan support for the Arkansas Citizen’s Redistricting Commission Amendment. According to a nonpartisan poll commissioned by Arkansas Voters First, 58% of all voters support the creation of independent redistricting commissions.

Plaintiffs

Bonnie Miller, Robert William Allen, Adella Dozier Gray and Arkansas Voters First

Defendant

John Thurston, Secretary of State of Arkansas

Associated Cases & Actions

Coronavirus: Protecting Voter Access and Ensuring Emergency Election Preparedness

Court Upholds Michigan’s Right to Move Forward with Independent Redistricting Commission

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CINCINNATI, OH – Today, the U.S. Court of Appeals for the 6th Circuit unanimously upheld a lower court decision to deny an attempt by the Michigan Republican Party and special interests to undermine Michigan’s voter-initiated Independent Citizens Redistricting Commission by delaying its implementation. Campaign Legal Center (CLC) is representing Voters Not Politicians in the case to protect the commission, and CLC’s Paul Smith gave oral arguments before the appeals court on March 17.

“The decision today affirms the fact that, as U.S. Supreme Court Chief Justice Roberts said, voters ‘have the power to decide for themselves how they want their government to be structured,’” said Nancy Wang, executive director of Voter Not Politicians. “Over 4,000 applications to serve on Michigan’s first Independent Citizens Redistricting Commission have been processed, and we will continue to do all that we can to get as many people involved in our fair, impartial, and transparent redistricting process as possible.”

“We are pleased with the decision today, which places the interests of Michigan voters first,” said Paul Smith, vice president of Campaign Legal Center (CLC). “Taking partisanship out of drawing electoral maps is critical to advancing the principle of accountability in government. Michigan voters want fair maps. They will not be silenced by special interests, who continue to try and exert their will over the redistricting process. Now Michiganders can continue applying to serve on the commission with the confidence that two courts and four judges have given it the green light.”

The lawsuits were brought by a group of Republican activists led by Tony Daunt, who led the opposition campaign last year, and the Michigan Republican Party, which a U.S. District Court found had gerrymandered the state’s district maps to historical proportions during the most recent redistricting cycle to give themselves “a strong, systematic, and durable structural advantage in Michigan's elections.” 

Applications to serve on Michigan’s first Independent Citizens Redistricting Commission will be open through June 1, 2020. So far, the Secretary of State’s office has processed 4,332 applications from nearly every county in the state.

Issues
Redistricting
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