Today, Campaign Legal Center’s latest Voting Rights Institute training will take place in Miami, Florida. At the session, co-hosted by American Constitution Society, practitioners will learn the ‘ins and outs’ of protecting the right to vote through the enforcement of voting rights laws.  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 half-day training program, taught by some of the most respected voting rights practitioners in the country, will count toward Continuing Legal Education (CLE).  This will be the fifth Institute training session held this year, with previous trainings held in New York City, Atlanta, Georgia, Columbus, Ohio and Washington, DC.

“To understand the urgent need for a new generation of voting rights litigators one need look no further than the widespread 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 was a huge setback for voting rights in our nation, unleashing a flood of laws at the state and municipal level designed to curb voting rights.  Now, more than ever, we need a new generation of voting rights litigators to help win back the right of all Americans to vote.”

Experts in the field will provide background on the Voting Rights Act and relevant federal court cases to participants and will then focus on the mechanics of litigating voting rights cases.  Campaign Legal Center’s Executive Director J. Gerald Hebert serves as lead instructor and is joined by veteran voting rights litigators and scholars in the field.

In addition to Mr. Hebert, the Institute’s expert faculty will include: Nancy Abudu (Director of Legal Operations , ACLU of Florida); Neil Bradley (Former Associate Director at ACLU Voting Rights Project); Chad Dunn (Partner, Brazil & Dunn); and Franita Tolson (Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law).

Financial support for the Voting Rights Institute has been provided by the Rockefeller Brothers Fund, the Mertz Gilmore Foundation, and the Wallace Global Fund.   Holland & Knight has also generously provided the use of its Miami offices for the training.

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

Today, a broad range of reform, conservative and taxpayer organizations joined with scholars to urge House Speaker John Boehner (R-OH) and House Minority Leader Nancy Pelosi (D-CA) to strengthen the House ethics process. The National Taxpayers Union, Taxpayers for Common Sense and Judicial Watch joined reformers in calling on the bipartisan House Leaders to make the Office of Congressional Ethics (OCE) permanent, to grant the Office subpoena power and to bring the work of the House Ethics Committee out from behind closed doors through increased transparency in the process.  

“The Office of Congressional Ethics has brought a level of accountability to the House ethics process yet the final arbiter -- the House Ethics Committee -- remains a secretive committee that has garnered a reputation for dysfunction and protecting Members,” said Meredith McGehee, Campaign Legal Center Policy Director. “OCE has a proven track record.  Giving it subpoena power will improve the credibility and accountability of the House ethics process. Further, the Ethics Committee itself must increase its own transparency if it is to shed its reputation as the committee of ‘see no evil, hear no evil, speak no evil.’”

Those signing the letter include the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington (CREW), Common Cause, Democracy 21, Judicial Watch, Thomas Mann, League of Women Voters, National Taxpayers Union, Norman Ornstein, Project On Government Oversight (POGO), Public Citizen, Sunlight Foundation, Taxpayers for Common Sense and James Thurber.

The full letter to the Speaker and the Minority Leader follows:

October 6, 2014

The Honorable John Boehner                                    

Speaker of the House                                                 

U.S. House of Representatives                                  

Washington, DC  20515                                            

The Honorable Nancy Pelosi  

House Minority Leader

U.S. House of Representatives

Washington, DC  20515

Dear Speaker Boehner and Democratic Leader Pelosi:

The process the U.S. House of Representatives currently employs to investigate and resolve allegations of ethical improprieties and violations was significantly improved with the creation of the Office of Congressional Ethics (OCE).  The Office has provided a place for allegations to be credibly heard and investigated and has alleviated some of the most serious concerns about a process that had become utterly dysfunctional.

But there are still weaknesses in the current system that need to be addressed quickly and meaningfully.  We the undersigned groups urge you, in bipartisan agreement, to publicly endorse these changes:

• Make OCE permanent.

As was noted in a previous letter,[1] we urge you to publicly and expeditiously announce your intention to continue the Office of Congressional Ethics (OCE) for the 114^th Congress.  The OCE has provided a credible means for allegations of violations by Members and staff to be investigated and, if warranted, dismissed and has compiled a stellar record of conducting fair investigations and bipartisan cooperation.  Yet the OCE lives in a state of instability, existing tenuously from Congress to Congress.  OCE should be made a more permanent institution of Congress.

• OCE should be given subpoena power.

Currently, the OCE does not have the power to compel testimony from witnesses when investigating allegations of ethics violations.  As a result, the Office can be hobbled in its efforts to complete its investigation -- which in turn undermines its fact-finding function and the scope of its recommendations.  In providing this power, rules can be included to ensure the power to issue a subpoena is wielded carefully in a bipartisan manner and to protect against abuses.  But without it, an uncooperative witness can stymie an investigation, blocking the OCE from working as intended and shielding important aspects of an investigation from review.

• Increase transparency of and access to information from the House Committee on Ethics

The House Ethics Committee continues to do most of its work behind closed doors, giving rise to reasonable suspicions that it is more interested in protecting individual Members than the integrity of the institution.  One important step that can be taken to increase the Committee’s credibility is to increase and improve the public availability of documents pertaining to House ethics, such as all current and historic guidance ("pink sheets") issued by the Committee. In addition, many of the ethics documents made available through the Clerk's office should also be online, such as legal defense fund disclosures and statements of recusal. We applaud the Committee for publishing its current and historic decisions online and hope it will continue the practice.      

We look forward to hearing your response to these proposals.

Sincerely,

Campaign Legal Center

Citizens for Responsibility and Ethics in Washington (CREW)

Common Cause

Democracy 21

Judicial Watch

Thomas Mann
League of Women Voters

National Taxpayers Union

Norman Ornstein

Project On Government Oversight (POGO)

Public Citizen

Sunlight Foundation

Taxpayers for Common Sense

James Thurber

To read the full letter, click here.

Today, the U.S. District Court for the District of Columbia dismissed a challenge to the federal “electioneering communications” disclosure provisions in Independence Institute v. Federal Election Commission (FEC). Last month, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in the case, urging the Court to reject the suit, arguing that the exact same disclosure provisions had been upheld by the Supreme Court as recently as the 2010 Citizens United decision.

“We are pleased the court recognized what plaintiff ignored: that the Supreme Court upheld this disclosure requirement not only in McConnell v FEC, but also under Chief Justice Roberts in Citizens United v. FEC,” said Tara Malloy, Campaign Legal Center Senior Counsel. “While a slim majority of the current Supreme Court has been overtly hostile to numerous longstanding campaign finance reforms, it has been steadfast in recognizing, by overwhelming margins, the vital public interest in disclosing the identities of those seeking to influence election outcomes. The district court properly rejected plaintiff’s request to overturn a law enacted to prevent ‘dark money’ groups spending to influence elections anonymously.”

Plaintiff sought to run a broadcast ad referring to Senator Mark Udall (D-CO) shortly before Election Day without disclosing its donors. The challenged law requires such disclosure when groups spend more than $10,000 on “electioneering communications”—defined as any television or radio ad that mentions the name of a federal candidate within 60 days of a general election or 30 days of a primary election. Congress enacted the “electioneering communications” disclosure law as part of the McCain-Feingold Act to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads. Since then, the Supreme Court has twice upheld the “electioneering communications” disclosure requirements: first in McConnell v. FEC (2003) in a facial challenge, and again in Citizens United v. FEC (2010) in an as-applied challenge nearly identical to the current lawsuit.

To read the court’s opinion, click here.

To read the brief, click here. 

Last night, in New York Republican State Committee v. SEC, the U.S. District Court for the District of Columbia dismissed a challenge to an SEC pay-to-pay rule.  The regulation bars investment firms from managing state assets for two years after a firm or its associates make more than de minimis contributions to officeholders or candidates in a position to award investment contracts.   The lawsuit was brought by the state Republican parties of New York and Tennessee, both of which argued that the rule indirectly affected their fundraising, and burdened their members and candidates.

The district court dismissed the case for lack of subject matter jurisdiction, agreeing with the SEC that the D.C. Circuit Court of Appeals was vested with jurisdiction to hear the challenge to the play-to-play rule.

The district court, however, also expressed grave doubts as to whether plaintiffs had demonstrated standing to challenge the SEC rule, noting that plaintiffs, as political parties, were not the target of the rule and that “plaintiffs’ standing relied entirely upon the independent actions of third parties not before the Court —i.e., investment advisers.”   It further noted that even in light of plaintiffs’ supplemental filings, “whether the plaintiffs have standing to bring this case remains in doubt.”

On August 29, 2014, the Campaign Legal Center filed an amici brief arguing that the challenged rule was consistent with the First Amendment and that the plaintiffs lacked standing to bring the case.

“While we fully expect this case will be refiled, we find this ruling dismissing the case and questioning plaintiffs’ standing encouraging,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “But even without the question of standing, the courts have long recognized the vital public interest in such pay-to-play restrictions, as well as their role in safeguarding the public’s faith in government.” 

The rule was implemented after SEC and state investigations uncovered extensive evidence of fraud in the award of state investment contracts.  One such scheme involved former New York State Comptroller Alan Hevesi, who was ultimately convicted of steering $250 million in pension funds to an investment firm in exchange for gifts and more than $500,000 in contributions.

To read the court's memorandum opinion and order dismissing the case, click here and here.

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

Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Independence Institute v. Gessler, urging the U.S. District Court for the District of Colorado to dismiss a challenge to 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 recently filed a suit challenging that federal statute as well.

“The Supreme Court has been very clear in supporting exactly this type of disclosure and in recognizing the vital public interest in informing voters as to whom is trying to influence their vote,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “Even under Chief Justice Roberts, the Court in Citizens United voted by an 8-1 margin to uphold a nearly identical federal statute, yet plaintiffs are asking this Colorado court to disregard that clear precedent and strike down its state’s law.  This case is just the latest in a wave of challenges to disclosure laws across the country as ‘dark money’ groups seek to hide the identities of their donors while running ads to influence election outcomes on the federal, state and local level.”

Plaintiff wishes 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 the plaintiff 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.

The Legal Center was assisted in the filing of the amici brief by Steven K. Imig of Lewis, Bess, Williams & Weese P.C.

To read the brief, click here. 

Today the U.S. Court of Appeals for the Seventh Circuit reversed a district court order that halted an investigation into apparent illegal coordination between the campaign of Wisconsin Gov. Scott Walker and ostensibly “independent” outside groups.  In May, U.S. District Court Judge Rudolph Randa issued a preliminary injunction in O’Keefe v. Chisholm halting the Wisconsin prosecutors’ investigation and ordering them to destroy evidence gathered in the case tying the Governor and his campaign to outside groups, including Wisconsin Club for Growth.  On August 8, 2014, the Campaign Legal Center, joined by Democracy 21, filed an amici brief, focusing on the flawed constitutional argument the Judge relied upon in enjoining the investigation, and urging the Seventh Circuit to reverse the district court order.

“We are relieved to see the Seventh Circuit reverse Judge Randa’s outrageous ruling, which not only halted the investigation but ordered the destruction of evidence gathered by prosecutors of potential coordination between the Walker campaign and outside groups,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “While the Circuit Court did not reach a decision on the merits, its ruling reads as a rebuke of Judge Randa’s interpretation of existing precedent.”

The Court of Appeals concluded that the injunction was an abuse of discretion, and that moreover, all of the defendants were entitled to qualified immunity with respect to their involvement in the investigation. In reaching its decision, the panel recognized that “[i]f campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns’ bidding,” contribution limits become “porous” and disclosure rules are rendered “useless”—which is precisely why the Supreme Court has only protected “truly” independent expenditures from regulation.  It further criticized Judge Randa’s decision for finding a “right” to coordinate “issue ads” noting that “[n]o opinion issued by the Supreme Court, or by any court of appeals, establishes (‘clearly’ or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic.”

To read the Seventh Circuit’s order reversing the District Court’s injunction, click here.

The Legal Center and Democracy 21 were aided in the filing of the amici brief by Paul Smith of Jenner and Block. To read the brief, click here.