Complaint: Acting Secretary Bernhardt Continued to Effectively Lobby for Client While Leading Government Agency

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Bernhardt’s behavior fits pattern of disregard for ethical norms across government agency tasked with managing the country’s natural resources

WASHINGTON – Today, Campaign Legal Center (CLC) filed a complaint with the U.S. Department of the Interior’s Inspector General alleging that Acting Secretary David Bernhardt ran afoul of his ethical obligations by participating in the same efforts to weaken environmental protections that he lobbied for prior to joining government.

Before joining Interior, Bernhardt lobbied on specific provisions of a law that aimed to minimize endangered species protections and maximize water supplies for his client. Bernhardt then joined Interior and used his official authority to institutionalize the same provisions that he had lobbied on, in violation of his ethics pledge and his ethical obligations.

“For years, Bernhardt lobbied to undermine protections for endangered species on behalf of his lobbying clients, and he continued working on the same exact issues after entering government,” said Paul Smith, vice president of CLC. “Bernhardt should be subject to the same high ethical standards as any other Interior employee, and the Inspector General should investigate this fully.”

“It is hard to tell where Bernhardt’s private sector lobbying activities end and where his public service begins,” said Brendan Fischer, director, federal reform at CLC. “These violations have major consequences: this isn’t about technical violations of ethics rules, and it isn’t about a three-inch fish. This is about whether increasingly scarce natural resources remain protected for the public, or whether the wealthy and well-connected get privileged access. Public officials are supposed to work on behalf of the public, not the powerful interests that used to fund their paycheck.”

In the years before entering government, Bernhardt lobbied on specific provisions of the Water Infrastructure Improvements for the Nation (“WIIN”) Act, which directed Interior to maximize water resources for his lobbying client – Westlands Water District – by placing constraints on the application of certain Endangered Species Act protections. Shortly after joining Interior, Bernhardt violated his ethics pledge by participating in the same particular matters that he had lobbied on, by directing agency actions that would effectively codify those same provisions.

Bernhardt’s advocacy on behalf of Westlands, and against endangered species protections for specific fish, was not limited to lobbying. He was on the board of a nonprofit group closely tied to Westlands that worked on matters that paralleled Bernhardt’s lobbying efforts. When Westlands sued to challenge the endangered species protections at issue in his lobbying efforts, he personally argued an appeal before the United States Court of Appeals for the Ninth Circuit. Even after deregistering as a lobbyist, and while serving on Trump’s Interior transition team, he edited a draft executive order on behalf of Westlands that would incorporate the same provisions of the WIIN Act that he previously lobbied on. These facts further mandated recusal, since a reasonable person would question whether Bernhardt was acting on behalf of the public or on behalf of his former lobbying client when he worked on the same matters at Interior.

Bernhardt’s disregard for ethical norms reflects a larger pattern at Interior. On Feb. 20, 2019, CLC filed a complaint about six political employees who also appear to have also violated their ethics pledges.

*Delaney Marsco and Urja Mittal also worked on this complaint for CLC.

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Ethics

Victory! Court Saves Texas Voters from Purge

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Court condemns Texas' ‘threatening correspondence’ and orders them to discontinue voter purge program

SAN ANTONIO, TX – In a decision filed today by the United States District Court for the Western District of Texas, federal judge Fred Biery ordered the Texas Secretary of State to tell all counties to pause their planned voter purge. In the opinion, the court orders Texas “not to send any notice of examination letters nor remove voters from registration without prior approval of the Court.”

“This is a major victory for Texas voters,” said Danielle Lang, co-director, voting rights and redistricting at Campaign Legal Center (CLC). “The court rightly agreed with our argument that Texas threatened voter purge struck fear and anxiety into the hearts of voters. Texas unnecessarily targeted tens of thousands of people who were properly registered citizens, intimidating naturalized citizens from exercising their rights. Let this be a message to the rest of the country that states will face consequences when they threaten their citizens’ right to vote.”

CLC represented the League of United Latin American Citizens (LULAC) in the case. Visit our case page to learn more.

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Voting and Elections

Uncovering Illegal Coordination by the NRA

At a Glance

The National Rifle Association (NRA) has apparently used a series of shell corporations to unlawfully coordinate tens of millions of dollars in spending with federal campaigns across the country, including the 2016 Trump campaign. CLC has filed complaints with the Federal Election Commission alleging illegal coordination on the part of the NRA. The coordination scheme spans three election cycles, seven federal races, and tens of millions of dollars in spending.

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Active
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Campaign Finance
About This Case/Action

Campaign finance law allows outside groups like the NRA to make unlimited expenditures supporting candidates only if the expenditures are completely independent of those candidates.  To protect this independence, the FEC has rules prohibiting coordination between outside groups and campaigns, which include restrictions on how a vendor may work for both a candidate and an outside group supporting that candidate. Otherwise, the common vendor can act as a conduit to funnel strategic information to the outside group, and then that group’s expenditures are no longer independent.

But a set of media firms operating out of a single set of buildings in Alexandria, Virginia has functioned to help the NRA evade these rules. Evidence shows that a media firm called OnMessage set up a shell corporation called Starboard, located at the same address and with the same leadership; the NRA contracted with Starboard to produce its ads, and the candidates the NRA supported hired OnMessage. Then, both the NRA and the candidates it supported placed their ads through the media firm National Media or an affiliate; in some cases, the same employee placed ads for both the NRA and the candidates the NRA supported on the same day. This scheme appears designed to evade detection of violations of the laws governing independence between campaigns and outside groups and, in doing so, facilitated tens of millions of dollars in illegal, unreported contributions from the NRA to seven federal campaigns. 

In partnership with the Giffords Law Center to Prevent Gun Violence, CLC filed four FEC complaints in 2018 that alleged illegal coordination between the NRA and seven federal campaigns via these vendors. Detailing the years-long activities of two overlapping webs of shell companies that designed and placed millions worth of ads for the NRA and the NRA’s endorsed campaigns, the complaints shine a light on an elaborate coordination scheme.  

The FEC regulates the use of common vendors for media placement because the targeting of political ads is a critical element of a campaign effort. If the NRA possessed inside knowledge of these campaigns’ strategies thanks to common vendors, it could strategically time and target its ads to complement the campaigns’ own efforts. That would make the expenditures anything but “independent.” The vendors may attempt to claim they established firewalls segregating work for the NRA and campaigns, but that argument falls apart when the same employees are placing ads for both groups.

The NRA using inside information about a candidate’s strategy to create ‘independent’ ads supporting him creates an unfair advantage, and it violates the law. According to the Supreme Court, groups like the NRA can only make unlimited expenditures if they are independent of the candidates they support, and it falls to the FEC to enforce the laws that preserve that independence and prevent corruption.

If the NRA’s ads are coordinated, then the law treats the spending on those ads as in-kind contributions to the candidate, which means those contributions should be reported—and capped—as such.  It is up to the FEC to enforce the law.

Associated Cases & Actions

Pushing the FEC to Enforce the Law Against the NRA for Illegal Spending Coordination — Giffords v. FEC

Federal Judge Directs Counties to Halt Texas Voter Purge

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SAN ANTONIO, TX – A federal judge in the United States District Court for the Western District of Texas said Monday that Texas counties involved in ongoing litigation may not purge registered voters or send letters demanding proof of citizenship until further order from the court. This conclusion was reached by Judge Fred Biery after a three-day evidentiary hearing in which the court heard from League of United Latin American Citizens (LULAC) and Texas plaintiff Julie Hilberg, a citizen of Atascosa County, Texas who told the court the story of how she was wrongly placed on Secretary of State David Whitley’s list, despite being naturalized in 2015 after moving to Texas. CLC represents LULAC and Ms. Hilberg.

Read Julie’s story.

“All Texas counties should refrain from further action until a broad ruling is made on our lawsuit,” said Danielle Lang, co-director, voting rights and redistricting, at CLC. “Texas designed this unlawful ‘search and purge’ mission to intimidate legitimately registered voters, and Secretary of State Whitley has failed to defend his program of voter suppression, ignoring warnings from state employees about the inaccuracy of the data he relied on. The court should step in and protect the rights of all Texas citizens.”

The parties will submit additional briefing next Thursday.

Learn more about the litigation.

Issues
Voting and Elections
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