Today in Veasey v. Abbott, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit upheld a lower court’s ruling that the Texas Voter Photo ID law is discriminatory and in violation of Section 2 of the Voting Rights Act.  Attorneys at the Campaign Legal Center serve as co-counsel for plaintiffs Congressman Marc Veasey, LULAC, and a group of Texas voters.            

“This is a great victory for the hundreds of thousands of Texans disenfranchised by this discriminatory law,” said J. Gerald Hebert, Executive Director of The Campaign Legal Center.   "This historic ruling marks the first time that a U.S. Court of Appeals has found a voter ID law in violation of the Voting Rights Act following the Supreme Court’s disastrous Shelby County decision struck down Section 5 of the VRA.”

The Fifth Circuit also remanded the case to the U.S. District Court for further findings on the law’s discriminatory purpose and for a remedy to cure the proven violation of the Voting Rights Act. 

The first challenge (Veasey v. Perry) to the Texas photo ID law was filed by the Campaign Legal Center and others in the summer of 2013 claiming that SB 14 violates the 1st, 14th, 15th and 24th Amendments to the Constitution, as well as Section 2 of the Voting Rights Act.  Several additional challenges were then brought against the Texas law (including one by the United States).  All of the cases were consolidated in the Southern District of Texas in Corpus Christi.

Following a two week trial in October 2014, U.S. District Court Judge Nelva Gonzales Ramos enjoined SB 14, finding that it was as an unconstitutional burden on the right to vote as well as an unconstitutional poll tax, had “an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.”  The state defendants immediately appealed Judge Ramos’ decision. In mid-October, the Fifth Circuit Court of Appeals stayed that decision solely to avoid confusion in the November 2014 elections, and the U.S. Supreme Court subsequently refused to vacate the Fifth Circuit’s stay.  

The Campaign Legal Center is part of the legal team representing the Veasey-LULAC plaintiffs that includes Chad Dunn and K. Scott Brazil (Brazil & Dunn), Neil G. Baron, David Richards (Richards, Rodriguez & Skeith), Armand Derfner (Derfner & Altman), and Luis Roberto Vera, Jr. (LULAC).

To read the Circuit Court decision, click here.

To read the Legal Center’s brief, click here. 

The Lobbying Disclosure Act (LDA) is broken and it is time for Congress to fix it.  The LDA is falling woefully short of its stated goal of “ensuring public awareness of the efforts of paid lobbyists to influence the public decision-making process” and through this transparency “increase public confidence in the integrity of Government.”  Lobbyists have deregistered, or simply never registered in droves.  As a result the American people are left in the dark as to who is lobbying and the special interests paying them to influence decision-makers in Washington.

A new, bipartisan proposal to update the LDA seeks to change the registration and reporting requirements for lobbyists and shift enforcement of the LDA to the Department of Justice.  The proposal comes out of the work of a blue ribbon Task Force assembled by the American Bar Association, chaired by Campaign Legal Center President Trevor Potter, a former Republican Federal Election Commission Chair; Harvard University law professor Charles Fried, a former Solicitor General under President Ronald Reagan; Perkins Coie attorney Rebecca Gordon, a former Deputy General Counsel to the Democratic National Committee; and attorney Joseph Sandler, a former counsel for the Democratic National Committee.  The Association of Government Relations Professionals (formerly the American League of Lobbyists) has endorsed a similar set of reforms  

The attached Fact Sheet outlines the growing problem, highlights a number of notable abuses of the current LDA by high-profile un-registered lobbyists and offers solutions to help make the lobbying industry more accountable to the taxpayers whose tax dollars it seeks on behalf of clients.  

To read the Lobbying Disclosure Act Fact Sheet, click here. 

In a letter sent today to Attorney General Loretta Lynch, the Campaign Legal Center joined Democracy 21 in citing the recent formal appointment of Mike Murphy to head the Rise to Rise Super PAC as further evidence of the need for a Justice Department investigation into the Bush Super PAC scheme.

The two groups previously sent letters on May 27 and June 11, 2015 to the Attorney General that called for the Justice Department to appoint an independent Special Counsel to investigate whether Republican presidential candidate Jeb Bush and the Right to Rise Super PAC were engaged in knowing and willful violations of the federal campaign finance laws.

According to Campaign Legal Center Executive Director J. Gerald Hebert:

The reported actions of the Bush campaign and it’s supposedly ‘independent’ Super PAC and its officers read almost like a dare to any federal agency to enforce the laws on the books prohibiting coordination between such entities.  Even the attributed quotes seem a clear admission of violations of these laws.

Such apparent abuses may have been encouraged by the complete breakdown of the Federal Election Commission’s ability to enforce the law but violations of the law must be treated as such and it is imperative that the Department of Justice step in to keep our democracy off the auction block.

The Right to Rise Super PAC by all appearances is an extension of the campaign used by Bush supporters to circumvent longstanding contribution limits.  These limits have long been upheld by the Supreme Court to prevent corruption or the appearance of corruption.  

At the very least these apparent violations should be thoroughly investigated by the Department of Justice.  If it turns out that the widespread reports are inaccurate that is still vitally important information to share with the public.  If these laws are not enforced and these apparent violations are not investigated our democracy will continue hurtling headlong toward oligarchy.

The request by the Campaign Legal Center and Democracy 21 for a Justice Department investigation centers on a provision of the Bipartisan Reform Act of 2002 (BCRA) that prohibits a federal candidate from “directly or indirectly” establishing, financing, maintaining or controlling an entity that raises or spends funds not subject to federal contribution limits and prohibitions (such as a Super PAC).

The BCRA provision is separate from and unrelated to the coordination provisions in the campaign finance law.  The coordination rules, enacted in 1976, address the question of whether an “expenditure” supporting a candidate by an outside group is also to be treated as a “contribution” to that candidate because of that candidate’s involvement in the decisions regarding the expenditure. 

The BCRA provision, however, enacted in 2002 as part of the prohibition on soft money, prohibits a federal candidate from raising or spending non-federal funds and from doing indirectly—through an entity the candidate establishes, finances, maintains or controls—what the candidate cannot do directly.

According to the letter from the two groups:

Murphy has been described as “Bush’s political alter ego.” (E. O’Keefe and R. Costa, “How Jeb Bush’s campaign ran off course before it even began,” The Washington Post (June 10, 2015).)  As we have previously noted, press reports state that Murphy is “Bush’s longtime strategist who has been helping the former Florida governor staff up his political operation and shape his economic opportunity message.” (P. Rucker and M. Gold, “Top Republican strategists in talks to join Jeb Bush’s super PAC,” The Washington Post (Mar. 17, 2015).)  Another report states that Murphy “has played a critical role in getting out Jeb Bush’s message and rolling out his all-but-certain presidential run,” and that Murphy and Bush have “a close relationship.” (M. Haberman, “Bush Adviser May Skip Campaign to Work for ‘Super PAC,’” The New York Times (Feb. 18, 2015).) 

The letter states that “Murphy has for months been actively working with and for Bush, both on setting up the Bush campaign and on setting up the Super PAC operation, formulating strategy for it, and planning the division of labor between the campaign and the Super PAC.” 

According to the letter to the Attorney General: 

Prior to assuming leadership of the Super PAC, Murphy convened “regular senior staff meetings” that included discussions “about how to divvy up money and resources between Bush’s allied super PAC and his official campaign.” (E. O’Keefe and R. Costa, “How Jeb Bush’s campaign ran off course before it even began,” The Washington Post (June 10, 2015).) According to press reports, Murphy was a key player in selecting the current campaign manager for the Bush campaign, which recently engaged in a staff shake-up. 

The Washington Post reported that “[Sally] Bradshaw and Murphy moved with the candidate’s blessing to push [former “de facto campaign manager” David] Kochel into a lesser role and ensure they alone had final say about the allocation of funds.” (E. O’Keefe and R. Costa, “How Jeb Bush’s campaign ran off course before it even began,” The Washington Post (June 10, 2015).)  According to another report, “The arrangement comes after a rough period and tense discussions among Bush loyalists, and conversations between two of his closest advisers, Sally Bradshaw and Mike Murphy, about the campaign setup, according to people familiar with Bush.” (E. O’Keefe and R. Costa, “How Jeb Bush’s campaign ran off course before it even began,” The Washington Post (June 10, 2015).)

The letter stated:

As we have previously described, the Bush campaign’s planning for the Super PAC has allocated campaign roles and spending priorities between the official campaign and the Super PAC.  And it contemplates a major role for the Super PAC in paying for the Bush campaign.  According to one report, “Right to Rise Super PAC will do TV commercials, but it also will take on tasks such as targeted online ads and get-out-the-vote efforts that traditionally have been done by candidate campaigns. 

Further, many of the staff working to elect Bush would be on the payroll of the super PAC, not the campaign, the sources said.” (S.V. Date, “Jeb Bush’s History of Outsourcing His Campaign So He Can Raise Big Money,” National Journal (May 29, 2015).)  Another report notes that the Bush campaign itself may raise and spend “less than its super PAC counterpart.  In April, several donors and Bush strategists described to AP his plan to have the super PAC produce the bulk of television advertising and direct mailers to voters supporting his candidacy.”( J. Bykowicz & S. Peoples, “Bush fundraising machine preparing for campaign’s launch, Associated Press (June 8, 2015) (emphasis added).)

The letter further stated:

Indeed, Murphy is quoted as giving credit to Bush for setting up—i.e., establishing—this scheme, and for being an “innovator” in using the Super PAC as the vehicle to “tell his story.” 

According to a published report about a telephone conference call Murphy recently held with donors to the Super PAC:

“One of the neat things about Right to Rise, and one of the new ideas that, you know, the governor had—he’s such an innovator—is we’re going to be the first super PAC to really be able to do just positive advertising, to tell his story, which is the missing ingredient right now,” Murphy said. (A. Kaczynski & I. Ben-Meir, “We Crashed Jeb Bush’s Super PAC’s Donor Call, And Here’s What They Said,” Buzzfeed (June 18, 2015) (emphasis added).)

This description by Murphy makes plain that Bush personally has been involved in formulating the Super PAC scheme, and thus (in the words of the statute) in “establishing” and “maintaining” the Super PAC.

According to the letter:

And as we have previously noted, published reports make clear that Bush has also been personally involved in “financing” the Super PAC.  Indeed, “Jeb Bush and his allies announced … that they had amassed more than $114 million in campaign cash over the last six months…” (N. Confessore, “Jeb Bush Outstrips Rivals in Fund-raising as ‘Super PACs’ Swell Candidates’ Coffers,” The New York Times (July 9, 2015).) Of this total, the authorized campaign committee reported raising $11.4 million and the balance of about $103 million was raised by the Super PAC—more than nine times the amount raised by the Bush campaign committee.

According to a report in The New York Times:

Mr. Bush, a former Florida governor, personally raised money for the super PAC—often in increments of $1 million per donor—at dozens of events during the winter and spring, operating under the assumption that he was free to do so because he was not yet a declared candidate. (N. Confessore, “Jeb Bush Outstrips Rivals in Fund-raising as ‘Super PACs’ Swell Candidates’ Coffers,” The New York Times (July 9, 2015).)

The letter rejected, as the groups’ previous letters did, the argument made by Bush advisers that he was not a candidate until he formally announced. The letter stated:

The apparent premise of the Bush campaign—that Bush was “free” to solicit contributions to the Super PAC during the winter and spring because “he was not yet a declared candidate”—is wrong for two reasons.  First, whether “declared” or not, Bush met the legal definition of being a “candidate,” 11 C.F.R. § 100.3, during the time he was engaged in these fundraising solicitations.  It has never been the law that a “candidate” can avoid the legal obligations that attach to “candidate” status simply by choosing to delay his declaration of candidacy (or even purporting to act in a testing-the-waters capacity). 

Second, the facial definition of § 30125(e)(1) applies to the Right to Rise Super PAC—it is an entity that has been “established, financed, maintained or controlled” by a person who is now a candidate, even if some activities relating to some elements of that standard occurred before Bush’s formal declaration of candidacy.  In any event, Bush now is a declared “candidate,” and he is “controlling” the activities of the Super PAC, at least “indirectly,” through the appointment of his “political alter ego,” (E. O’Keefe and R. Costa, “How Jeb Bush’s campaign ran off course before it even began,” The Washington Post (June 10, 2015).)  Mike Murphy, as the person who is running the Super PAC.  And the Super PAC is certainly an entity which is now “acting on behalf of” a candidate within the meaning of § 30125(e)(1).

The letter concluded:

As we have urged previously, the Department should investigate whether Bush and the Right to Rise Super PAC are engaged in violations of § 30125(e).  Bush is doing precisely what the 2002 law prohibits: establishing and, through his agents, directly or indirectly controlling an entity that is raising and spending non-federal funds.  This scheme goes to the heart of what the BCRA soft money provisions were enacted to prohibit. 

The public position taken by the Bush campaign that it is not “coordinating” with the Super PAC on its spending, even if it were correct, is irrelevant and a distraction from the real issue here, which is the scheme to violate the BCRA soft money provisions.  Because this scheme involves knowing and willful violations of the law, the Department has an obligation to investigate it and take appropriate action.

To read the full letter, click here.

Today, the Campaign Legal Center strongly urged the Senate Finance Committee to vote against an effort to block the IRS from completing a rulemaking related to the regulation of the political and candidate-related activities of 501(c)(4) organizations.  Senators Rob Portman (R-OH) and Pat Roberts (R-KS) are expected to offer an amendment today to the tax extenders bill that would suspend the IRS rulemaking for one year.  

“This rulemaking has been pending for nearly two years in response to the growing problem abuse of the privileged tax status for blatantly political purposes by ‘dark money’ groups,” said Meredith McGehee, Policy Director of the Campaign Legal Center.  “Nonprofits deserve clear rules regarding what is and is not appropriate activity for a social welfare group, and the IRS needs the funds to proceed with this important and overdue new rule.”

“The existing IRS regulations are outdated and contrary to the governing statute that states that such groups must engage ‘exclusively’ in ‘social welfare’ activities,” said McGehee.  “These regulations are allowing huge amounts of money from secret donors to be spent to influence the outcome of elections in the U.S. They are enabling the circumvention of laws passed to ensure transparency by nonprofits engaged in significant campaign activity and to prevent the abuse of an important tax exemption.”

“The Portman-Roberts amendment would be a blow to our democracy and further undermine the nation’s disclosure laws.  It should be defeated.”

Yesterday in Delaware Strong Families v. Attorney General of Delaware, the U.S. Court of Appeals for the Third Circuit upheld the Delaware Elections Disclosure Act (“DEDA”), which was proposed and signed by Governor Jack Markell in 2012.  The Third Circuit reversed a lower court decision that preliminarily enjoined Delaware’s disclosure law as applied to a voter guide put out by a nonprofit group, Delaware Strong Families (DSF), in a constitutional challenge to DEDA’s electioneering communications law.                                         

“This Third Circuit ruling is an important victory for Delaware voters, who deserve to know the identities of those spending money to influence their votes,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Delaware Elections Disclosure Act promotes transparency in elections, which the Supreme Court has long recognized as a vital governmental interest, and yesterday’s ruling ensures that Delaware voters will continue to have access to the information they need to make informed decisions on Election Day.”

The Court of Appeals also rejected the argument that disclosure can only reach ‘express advocacy’ or its functional equivalent, recognizing that “[t]he Supreme Court has consistently held that disclosure requirements are not limited to ‘express advocacy’ and that there is not a ‘rigid barrier between express advocacy and so-called issue advocacy.’” 

Lawyers from the law firm WilmerHale and the Campaign Legal Center represent the Defendants-Appellants, Delaware Attorney General and Delaware Commissioner of Elections.

The case was argued before the Third Circuit on October 28, 2014.                                                          

To read the Third Circuit’s opinion, click here.

To read the Defendants-Appellants’ opening brief and reply brief, click here and here.

Today, in three consolidated cases arising from the ongoing Wisconsin John Doe investigation, the Wisconsin Supreme Court ignored U.S. Supreme Court precedent—and Wisconsin state precedent— to significantly narrow Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups.  The controversial decision was handed down by a narrow court majority that includes two judges whose own elections were bankrolled by millions spent by the same dark money groups under investigation in the John Doe probe.  Prosecutors had called for their recusal.

The Campaign Legal Center, joined by Democracy 21, Common Cause in Wisconsin and the League of Women Voters of Wisconsin, filed an amici brief in the case urging the court to uphold the coordination restrictions.

The court agreed with the petitioners’ argument that if coordinated expenditures do not expressly advocate the election or defeat of candidates, then they cannot be subject to regulation or limitation.  The U.S. Supreme Court specifically rejected that argument in McConnell v. FEC, holding that “there is no reason why Congress may not treat coordinated disbursements for electioneering communications,” i.e., a form of non-express advocacy, “in the same way it treats all other coordinated expenditures.”

“This ruling is an outrageous act of judicial activism that outright ignores clear Supreme Court precedent recognizing that expenditures coordinated by outside groups with candidates are little more than ‘disguised contributions’ made to the candidates themselves, regardless of whether or not the audience is expressly instructed to vote for or against a candidate,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “In fact, the majority does not cite a single Supreme Court precedent pertaining to ‘coordinated expenditures,’ an extraordinary omission in a case that purports to review the constitutionality of Wisconsin’s laws in this area.”

Ms. Malloy continued: “At least two of the justices in the majority should have recused themselves from the case because the groups under investigation played major roles in electing those justices to the court.  The U.S. Supreme Court has not looked kindly on such blatant conflicts of interest, holding as recently as 2009 that the due process concerns required that a judge recuse himself from a case involving an individual who had spent millions of dollars to aid his election.  Today, two of the Wisconsin justices named in the Special Prosecutor’s recusal motion declined to recuse themselves without offering any rationale to justify the plain conflict of interest.”

The consolidated case centered around a challenge to a so-called John Doe investigation of alleged illegal coordination between the campaign of Wisconsin Governor Scott Walker and outside groups.  That investigation was blocked until various challenges were resolved.

To read the opinion, click here.

To read the amici brief filed by the Campaign Legal Center, Common Cause in Wisconsin, Democracy 21 and the League of Women Voters of Wisconsin, click here.

On Monday, the Campaign Legal Center, joined by Common Cause and the Sunlight Foundation, urged the Federal Communications Commission (FCC) to strengthen the way the agency collects and discloses information to the public and to enforce its existing rules.  In a filing made in response to the agency’s request for comment on local public inspection files and political files, the groups, represented by the Institute for Public Representation of the Georgetown University Law Center, proposed changes to enhance the quality, utility and clarity of the information the FCC collects. 

“These public files can be a great resource to the public.  But if broadcasters do not comply with the requirement and the FCC does not enforce the rules -- despite receiving complaints detailing clear violations -- then the public is kept in the dark,” said Meredith McGehee, Campaign Legal Center Policy Director.  “These are not arduous requirements.  It is past time to get these public files into the standardized, searchable, sortable format that is the agency’s professed goal and for the FCC to ensure broadcasters comply with them.”

The FCC and the public use the information from the public files to help evaluate broadcast stations’ performance, to ensure the stations address issues of concern to the communities they serve, and to ensure that stations comply the Commission’s policies.      

In the comments filed at the FCC, CLC and the groups outlined two ways to improve the political file information collection.  First, the groups urged the FCC to improve enforcement.  The Commission has never acted on complaints filed against TV stations that have failed to abide by the online file requirements, even though the agency has received proof of violations from CLC et al. 

Second, the groups urged the Commission to require that data be reported according to a standard database format.  Currently, TV stations submit PDFs of paper documents, even though the stations themselves keep the information in digital format.  As a result of using PDFs, the current FCC database is difficult to navigate and impossible to accurately understand the information in the political file.  The FCC itself noted that a “structured and database-friendly format that can be aggregated, manipulated and more easily analyzed” is the Commission’s goal.  Using such a format is also less burdensome to TV stations that currently take data from a computer, print it out and then upload it to the FCC database.

Also, the Campaign Legal Center and the groups urged the Commission to extend the online public filing to other media and to require stations to file shared services agreements (“SSAs”), which give a station substantial influence over the operations of one or more stations in the same television market.  SSAs have been used to circumvent current limitations on the number of media outlets that can be owned in a media market.

The request for comments was part of the Commission’s on-going compliance with information collection under the Paperwork Reduction Act.

Over the past several years, the groups pushed successfully to get the FCC to enact rules requiring broadcast stations to put their political files online in an FCC database, which took effect for all television stations July 1, 2014.  In a separate proceeding, the groups are also currently urging the Commission to extend the requirements to cable, satellite and radio.

To read the comments filed Monday by the Legal Center and other groups, click here.