Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Independence Institute v. Gessler urging the Tenth Circuit Court of Appeals to affirm a District Court ruling upholding the Colorado Constitution’s “electioneering communications” disclosure provisions.  The state law is materially identical to the federal “electioneering communications” disclosure statute, which was upheld by the U.S. Supreme Court as recently as the 2010 Citizens United decision.  Plaintiff’s challenge to the federal statute (Independence Institute v. Federal Election Commission) was dismissed by the U.S. District Court for the District of Columbia on October 6, 2014, sixteen days before the challenge to the Colorado law was dismissed by the U.S. District Court for the District of Colorado.  The Campaign Legal Center filed amici briefs in both cases.

“From the challenge in Buckley v. Valeo to the Watergate reforms right through to the Roberts Court’s ruling in Citizens United, the U.S. Supreme Court has been unbending in its support for disclosure and in its recognition that the public has a vital interest in knowing the identities of those who are trying to influence their votes,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Independence Institute is asking the court to ignore Supreme Court precedent so that it and others can blanket the airwaves with ‘dark money’ ads in the final weeks before elections without ever revealing the interests bankrolling those ads.  Sadly, this case is just one of many similar challenges to disclosure laws nationwide, but fortunately the courts have been steadfast in upholding these laws.”

Independence Institute wished to run a broadcast ad referring to Governor John Hickenlooper (D-CO) shortly before Election Day without disclosing its donors.  The challenged law requires donor disclosure when groups spend more than $1,000 on “electioneering communications”—defined as certain television, radio and print ads that mention the name of a state candidate within 60 days of a general election or 30 days of a primary election. 

The U.S. Congress enacted the federal “electioneering communications” disclosure law, which is also being challenged by Independence Institute in a different case, to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  Since then, the Supreme Court has twice upheld this law: first in McConnell v. FEC (2003) in a facial challenge, and again in Citizens United v. FEC (2010) in an as-applied challenge.

To read the amici brief filed today by the Campaign Legal Center, Democracy 21 and Public Citizen, click here. 

To read the U.S. District Court for the District of Colorado’s order and final judgment, click here and here.

To read the U.S. District Court for the District of Columbia order dismissing the challenge to the federal statute, click here.  

 In a letter sent today to the Justice Department, the Campaign Legal Center joined Democracy 21 in applauding the agency’s recent action to enforce the coordination standard in the campaign finance laws and emphasized how important it is for the Department to play an active role in enforcing the campaign finance laws in the 2016 election cycle.

The letter stated:

The Justice Department’s active supervision and enforcement of the campaign finance laws is necessary in order to ensure that those laws are not blatantly violated by participants in the 2016 elections. The FEC, the agency with exclusive civil jurisdiction to enforce the campaign finance laws, has proven to be wholly incapable of carrying out its enforcement responsibilities. 

We commend the Department for its recent prosecution of illegal coordination that occurred in the 2012 election between a congressional campaign and a Super PAC. As the Department announced on February 12, 2015, this was “the first criminal prosecution in the United States based upon the coordination of campaign contributions between political committees.”

In addition, we applaud the commitment made in announcing this criminal conviction when you stated, “The Department of Justice is fully committed to addressing the threat posed to the integrity of federal primary and general elections by coordinated campaign contributions, and will aggressively pursue coordination offenses at every appropriate opportunity.”

The letter further noted:

According to a recent article in The Washington Post, “The Justice Department is stepping up scrutiny of the increasingly cozy ties between candidates and their outside allies, a move that could jolt the freewheeling campaign finance atmosphere ahead of the 2016 elections.” M. Gold, “Justice Department Ramps Up Scrutiny of Candidates and Outside Groups,” The Washington Post (Feb. 27, 2015).

The letter noted the rise of Super PACs generally, and individual-candidate Super PACs specifically, following the Supreme Court’s 2010 Citizen United decision. With this rise, the problem of illegal coordination between candidates and outside spending groups has become a very serious issue.

According to Campaign Legal Center Senior Counsel Paul S. Ryan:

Given that the Federal Election Commission has abandoned any pretense of enforcing the campaign finance laws, it is critical that the Justice Department closely review the relationship between presidential candidates and the individual-candidate Super PACs created to promote their candidacies.

While federal candidates are subject to a $2,700 limit on individual contributions, and a ban on corporate and union contributions, Super PACs can accept unlimited contributions from any source. Candidate coordination with Super PACs eviscerates the corruption-preventing candidate contribution limits.

Jeb Bush is already reportedly raising million-dollar contributions for the Right to Rise Super PAC associated with him—and has a $100 million fundraising goal for the first quarter of 2015.

With the FEC missing in action, the Justice Department must vigilantly monitor campaign activities to ensure that Bush and all other 2016 candidates comply with federal laws restricting their coordination with Super PACs associated with them, and bring enforcement actions where appropriate.

To read the full letter, click here. 

On March 7, 2015, the Voting Rights Institute, a joint project of the Campaign Legal Center and American Constitution Society (ACS), will conduct the next voting rights training session in Austin, Texas to help fill the critical need for a new generation of voting rights lawyers, experts, and community activists. At the session, being held at the University of Texas Law School, practitioners and law students will learn the ‘ins and outs’ of protecting the right to vote through the enforcement of voting rights law.  Cases brought to enforce Section 2 of the Voting Rights Act, and the Fourteenth and Fifteenth Amendments to the Constitution, will be a particular focus of the training.  The training program will feature a panel of instructors with decades of experience in the field of voting rights.

“To understand the urgent need for a new generation of voting rights litigators and experts one need look no further than the voter suppression laws enacted in the run-up to the 2014 elections and currently being challenged in the courts,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center.  “The Supreme Court’s disastrous Shelby County decision in 2013 turned the clock back on voting rights protections, unleashing new laws at the state and municipal level designed to restrict and burden voting rights.  Now more than ever we need a new generation of voting rights litigators and advocates to help win back and protect the right of all Americans to vote regardless of the color of their skin.”

Experts in the field will provide background on the Voting Rights Act and relevant federal court cases to participants and will then focus on their experiences in voting rights cases.  The Voting Rights Act will be covered in detail and participants will learn how it impacts voting rights laws on a state-by-state basis. Campaign Legal Center Executive Director, J. Gerald Hebert, will serves as lead instructor and will be joined by several veteran voting rights litigators and advocates.

In addition to Mr. Hebert, the Institute’s faculty will include: Chad Dunn (Partner, Brazil & Dunn); veteran voting rights attorney David Richards; the Texas Mexican American Caucus’ general counsel Martin Golando; Texas NAACP President Gary Bledsoe; and former Texas state senator and gubernatorial candidate, attorney Wendy Davis. 

Financial support for the Voting Rights Institute has been received from the MacArthur Foundation, Rockefeller Brothers Fund (rbf.org), Mertz Gilmore Foundation and the Wallace Global Fund.  

For more details on the timing and location of the Austin training, click here.

Today in Veasey v. Abbott, attorneys at the Campaign Legal Center, who serve as co-counsel for plaintiffs Congressman Marc Veasey, LULAC, and a group of Texas voters, filed a brief urging the Fifth Circuit Court of Appeals to uphold a District Court ruling striking down Texas’ voter photo ID law (SB 14), the most restrictive and burdensome voter ID law in the nation.

Following a two-week trial last fall, 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.  

“Evidence proved at trial that hundreds of thousands of Texans were stripped of their right to vote by this discriminatory law,” said J. Gerald Hebert, Executive Director of The Campaign Legal Center.  “The District Court’s decision carefully weighed all the evidence in finding the Texas photo ID law unconstitutional and in violation of the Voting Rights Act and we hope the Circuit Court will uphold that ruling and restore the franchise to those stripped of this fundamental right.  Ostensibly passed by the Texas Legislature to combat the virtually nonexistent problem of in-person voter fraud, the law was intended to have a harmful effect on minority voters because of the way they were likely to cast their ballots.”

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.

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 Legal Center’s brief, click here.

To read the District Court decision striking down the Voter ID law, click here.

On February 17, 2015, in Dickson v. Rucho, Campaign Legal Center Executive Director J. Gerald Hebert joined with a dozen other nationally recognized election law professors in a brief urging the U.S. Supreme Court to accept a case and overturn a state supreme court ruling upholding North Carolina’s redistricting.  In supporting the petition for writ of certiorari, the brief from the thirteen voting rights experts emphasizes that the North Carolina’s racially gerrymandered districts violate the Voting Rights Act and the Equal Protection Clause.

The law professors argue the lower court’s decision fundamentally misunderstands and misapplies U.S. Supreme Court precedent on redistricting in order to uphold North Carolina’s redistricting.  Further, the brief emphasizes that if the North Carolina State Supreme Court ruling is not overturned, it will afford states a constitutional safe harbor from which to undermine the Voting Rights Act.

“The audacity of the legislature’s attempt to use the Voting Rights Act as a shield for its racial gerrymander is outdone only by the North Carolina Supreme Court acceptance of the argument,” said Hebert.  “If the decision by the North Carolina Supreme Court is not overturned, it will provide a blueprint for widespread circumvention of the Voting Rights Act by using the landmark civil rights legislation to actually dilute the voting strength of minority communities rather than protect them.  North Carolina’s justification for their packing of minority voters and their blatant racial gerrymandering that such actions were required by the Voting Rights Act turns the Act on its head and is precisely the kind of over-reliance on race that has been rejected by the Court in previous cases.” 

In addition to Hebert (who currently teaches voting rights courses at Georgetown University Law Center and New York Law School), the other election law professors signing the brief are Campaign Legal Center board member Guy-Uriel Charles (Duke Law School), Jocelyn Benson (Wayne State University Law School), Michael Kent Curtis (Wake Forest University School of Law), Gilda Daniels (University of Baltimore School of Law), Joshua A. Douglas (University of Kentucky College of Law), Atiba R. Ellis (West Virginia University College of Law),  Justin Levitt (Loyola Law School), Eugene D. Mazo (Wake Forest University School of Law), Spencer Overton (George Washington University Law School), Terry Smith (DePaul University College of Law), Douglas Spencer (University of Connecticut Law School), and Franita Tolson (Florida State University College of Law).

To read the brief, click here.

Today, the Campaign Legal Center released a white paper examining prospective 2016 presidential candidates raising millions of dollars, while denying that they are even “testing the waters” for a potential run for their Party’s nomination. Why would they deny the obvious? Federal law requires an individual who is “testing the waters” of candidacy to pay for those activities with funds raised in compliance with the candidate contribution restrictions—no individual contributions above $2,700, and no corporate or labor union funds. Nearly every likely presidential contender is ignoring the candidate limits and the Federal Election Commission is doing nothing to stop it.

Written by Campaign Legal Center Senior Counsel Paul S. Ryan, the white paper details the recent political activities of nearly 20 prospective 2016 presidential candidates, the campaign finance laws that many of these prospective candidates are likely violating, and the history of similar evasion and violation going all the way back to Ronald Reagan, who began stretching the boundaries of the Federal Election Campaign Act in 1977, just three years after President Richard Nixon resigned his office in disgrace leading to passage of the Act.

“Testing the waters’ means activity undertaken to determine whether the individual should become a candidate, including, for example, traveling to see if there is sufficient support for one’s candidacy,” said Ryan. “Nearly every prospective 2016 presidential candidate is raising and spending funds outside the candidate contribution limits, through super PACs, leadership PACs and other groups. They’re traveling to Iowa and New Hampshire; they’re hiring campaign staff; one has even opened an office in Iowa. They claim they’re not ‘testing the waters,’ but they look soaking wet to me.”

Ryan continued: “And though Presidents Reagan and George H.W. Bush got away with pushing the ‘testing the waters’ boundaries back in the 1970s and 80s, their boundary-pushing took place prior to the midterm elections and involved limited contributions. Jeb Bush’s reported plan to raise $100 million in unlimited super PAC contributions during the first quarter of this year—after the midterm election, during the 2016 presidential election cycle—is not merely a difference in degree; it is a difference in kind. The flood of unlimited money unleashed by the Supreme Court’s Citizens United decision, coupled with the FEC’s ‘see no evil, hear no evil, speak no evil’ non-enforcement policy, have led to unrestricted bidding in the auction that our presidential campaigns have sadly become.”

To read the executive summary, click here. 

To read the full white paper, click here. 

Yesterday in Baca v. Berry, Campaign Legal Center attorneys, along with attorneys at Jenner & Block, filed a brief in the United States Court of Appeals for the Tenth Circuit responding to the City of Albuquerque’s efforts to obtain financial sanctions against four of its own citizens and their former counsel for filing a voting rights lawsuit.  Legal Center attorneys represent the individual voters, while Jenner & Block attorneys represent the voters’ former counsel. 

The case started when four Albuquerque voters brought claims challenging the city council’s post-2010 redistricting plan.  After the lawsuit was filed, electoral changes were adopted in the City that prompted the plaintiffs to move to dismiss their case without prejudice.  The City moved to dismiss the case with prejudice.   The district judge held both motions in abeyance for several months and then granted the City’s motion to dismiss with prejudice.  The City then successfully obtained an order from the district judge sanctioning the voters’ counsel in the amount of $48,217.95 for pursuing a frivolous case.  The trial court, however, refused to grant the City’s motion to financially sanction the four individual citizens.  The individual plaintiffs’ counsel appealed the sanctions order and the City has appealed the order declining to sanction the individual voters who filed the suit.   The brief filed yesterday responds to the city’s frivolous attempt to extort its own citizens for invoking their right to bring a lawsuit to protect their constitutional and civil rights, and also replies to the city’s defense of the district court’s sanctions order against the plaintiffs’ former counsel. 

“Unless the Tenth Circuit condemns Albuquerque’s transparent attempt to intimidate its own citizens, many future civil rights violations will likely go unchallenged,” said J. Gerald Hebert, Campaign Legal Center Executive Director. “The city’s conduct in this case bears all the hallmarks of a strategic lawsuit to crush civic involvement and full public participation—an attempt by those in power to scare people away from vindicating their civil rights.  If any party should be sanctioned in this case, it’s the city for filing a frivolous and abusive cross-appeal.”

Hebert added: “Jenner & Block attorneys have once again stepped up to protect voting rights and prevent a gross miscarriage of justice.  We are pleased to have had the opportunity to work with them on this case.”  The law firm of Jenner & Block was recruited to work on this case by the Voting Rights Institute, a joint program launched earlier this year by the Campaign Legal Center and the American Constitution Society.

To read the brief, click here.