New Report & FCC Complaint Highlight How Frequently Broadcast Stations Neglect to Collect and Report Political Ad Sponsors; Letter Deplores FCC’s Failed Promise for Aggressive Enforcement.  

The Campaign Legal Center, Common Cause, Sunlight Foundation and Benton Foundation today filed a complaint with the Federal Communications Commission urging the agency to take immediate action against WCPO-TV of Cincinnati for failure to comply with the longstanding public file requirements of Section 315 of the Communications Act. The complaint was accompanied by a letter to FCC Chairman Tom Wheeler, chastising the commission for doing “absolutely nothing” to enforce public file rules.

The groups are represented by the Institute for Public Representation of Georgetown University Law Center (IPR).    

“The public file requirements of the Communications Act play an important role in providing transparency in our electoral system, especially post-Citizens United,” said Meredith McGehee, policy director for the Campaign Legal Center. “As the number of super PACs buying up television and radio airtime increases, the transparency of who is behind political ads is becoming increasingly murky. It is the FCC’s responsibility to ensure stations disclose information about who pays for advertisements. The FCC, in its failure to enforce laws that protect voters’ right to know, has clearly led broadcasters to freely ignore existing regulations with impunity.”

The letter from IPR on behalf of CLC, Common Cause, Sunlight Foundation and Benton Foundation reminds Chairman Wheeler about the commission’s “abject failure” to resolve 11 public file complaints pending since May 2014, despite his assurance that “We take political file complaints seriously and anticipate resolving these quickly.” The letter underscores that the law is intended to protect Americans’ right to know who is behind political ads and who is trying to persuade voters. 

Andrew Jay Schwartzman, Benton Senior Counselor at IPR, stressed, "It is regrettable that we have had to send this letter and a new complaint, but as the new report demonstrates, broadcasters are ignoring their duty to serve the public and the FCC has shown no interest in demonstrating that they face any consequences for their non-compliance."

“Holding broadcasters accountable for their political advertising disclosures is as important as food labeling,” said Benton Foundation Executive Director Adrianne B. Furniss. “Television stations have an essential public interest obligation to provide the public with information about who’s buying broadcast time. But this complaint demonstrates that broadcasters are not making the grade. The law demands that we get as much information about the TV ads that comes into our living rooms as the food that comes into our kitchens.”

Todd O’Boyle, program director for Common Cause’s Media and Democracy Reform Initiative, stated, “Secret money spending is out of control, and it leaves voters in the dark. It is past time that the FCC give the people the transparency they need and the law requires.”

The complaint against WCPO-TV, a Scripps Media, Inc. provides direct evidence of the FCC’s failures. The law requires that broadcasters upload a variety of information identifying the sponsor of political ads to an online public file, which is part of an FCC database. In 16 of 17 of the WCPO-TV’s files for non-candidate sponsors of national issue advertising, it did not provide information required by the Communications Act and FCC rules, undermining the transparency of the public filing system.

Today’s complaint is further corroborated by research conducted by CLC and released today in a new report, Who’s Behind That Political Ad?: The FCC’s Online Political Files and Failures in Sponsorship Identification Regulation. CLC examined 1,220 political files of TV broadcasters in key electoral battleground states – Florida, Ohio, Wisconsin and Pennsylvania – and more than one-third (35 percent) of forms from these battleground states uploaded to the FCC’s database contained incomplete and inaccurate sponsorship identification.

WASHINGTON, D.C. - The Campaign Legal Center and the Southern Coalition for Social Justice filed a complaint today on behalf of the League of Women Voters of North Carolina and numerous individual voters, arguing that North Carolina’s 2016 congressional redistricting plan violates the 1st and 14th Amendments of the U.S. Constitution. League of Women Voters of North Carolina v. Rucho was filed in the U.S. District Court for the Middle District of North Carolina. North Carolina’s 2016 redistricting plan was drafted during a special legislative session after a federal three-judge panel ruled that previous maps were unconstitutional racial gerrymanders.
 
In 1986, the U.S. Supreme Court held that partisan gerrymandering claims present a legal controversy that courts could potentially resolve. However, to date, the court has not agreed on an acceptable standard to determine when a partisan gerrymander is unconstitutional. League of Women Voters of North Carolina v. Rucho offers an empirical analysis to demonstrate the extent to which an extreme gerrymander exists. That analysis is called the efficiency gap, which captures the packing and cracking among a plan’s districts in a single number. This is the first case since Whitford v. Gill in Wisconsin to present the efficiency gap as a legal standard to determine if a partisan gerrymander is too extreme.
 
CLC Executive Director Gerry Hebert released the following statement on the filing:
 
“When it comes to congressional districts, North Carolina's are an extreme and egregious partisan gerrymander. Packing and cracking voters in districts based on their political ideology and voting history classifies voters in an invidious manner unrelated to any legitimate legislative objective. Radical partisan gerrymandering like that in this case turns democracy on its head. For the sake of North Carolina voters and voters across our nation, this practice must come to an end. The implementation of our efficiency gap standard would go a long way in ensuring that every voter is entitled to equal protection under the law and having their voice heard.”
 
Southern Coalition for Social Justice Executive Director Anita Earls released the following statement on the filling:
 
“The Constitution guarantees everyone’s right to participate equally in an electoral system that does not discriminate against them because of their beliefs. It is clear that the intent and effect of creating North Carolina’s 2016 congressional maps were to manipulate the democratic process. The result disparages voters and ensures that one party can maintain political power even when a majority of the state’s voters do not support them.”
 
The efficiency gap, developed by Nicholas Stephanopoulos and Eric McGhee, is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. Wasted votes are: (1) any vote cast for a losing candidate; and (2) votes cast for a winning candidate in excess of the number needed to win. More information about wasted votes and how efficiency gaps are calculated is below.
 
According to the complaint, North Carolina's efficiency gaps in 2012 and 2014 "exhibited pro-Republican partisan biases larger than 25 percent—[] by far the worst in North Carolina’s modern history and at the far edge of the nationwide distribution." (p. 16).  
 
About the Efficiency Gap:

The efficiency gap determines how close a redistricting plan is to reaching partisan symmetry, which means whether or not similarly-situated political parties are treated equally in a redistricting plan. According to the Campaign Legal Center, “[a] lower number means both parties are treated more equally in the way they can convert votes into seats. A higher number means one party has an advantage in the way it translates its vote share into seat share.”
 

CLC Files Friend-of-the-Court Brief in Virginia racial gerrymandering case

The Campaign Legal Center today filed a friend-of-the-court brief in the Supreme Court of the United States in Bethune-Hill v. Virginia State Board of Elections, a case of critical importance for the future of racial gerrymandering cases.

In 2010, the Virginia Assembly redrew legislative districts in a way that diminished minority voters’ impact in electing candidates of their choice. The district court recognized that the state improperly sorted voters based on race, but created an unsupported new legal standard upholding the districts.

“The district court erred in its constitutional analysis in deciding this case,” said Gerry Hebert, executive director of the Campaign Legal Center. “The U.S. Supreme Court must step in so that voters can continue to effectively succeed in challenging unconstitutional racial gerrymanders where legislatures improperly sort voters on the basis of their race for no constitutional purpose.”

CLC’s brief supports the Virginia citizens and voters challenging the state’s racial gerrymander by laying out direct evidence of racial intent in the creation of the legislative districts and urges the court to overturn the district court’s decision.

The Campaign Legal Center was joined on the brief by the League of Women Voters, The Voting Rights Institute, the Racial Justice Project at New York Law School, the National Council of Jewish Women and the National Association of Social Workers Democracy.

Exact-Match Verification Scheme has Prevented Tens of Thousands of Eligible Georgians from Registering to Vote, the Majority of Whom are African-American, Latino, and Asian American Citizens

WASHINGTON – The Campaign Legal Center (CLC), filed suit today on behalf of the Georgia State Conference of the NAACP (GA NAACP), Georgia Coalition for the Peoples’ Agenda (GCPA) and Asian Americans Advancing Justice – Atlanta alleging that Georgia’s exact-match voter registration verification scheme violates the Voting Rights Act of 1965 and denies eligible Georgians of their fundamental right to vote under the First and Fourteenth Amendments to the United States Constitution.

The complaint, filed in the United States District Court for the Northern District of Georgia, concerns Georgia’s voter registration verification process, which requires all of the letters and numbers comprising the applicant’s name, date of birth, driver’s license number or last four digits of the Social Security number to exactly match the same letters and numbers for the applicant in the state’s Department of Drivers Service (DDS) or Social Security Administration (SSA) databases. If even a single letter or number, or a hyphen, space or apostrophe, does not exactly match the database information, and the applicant fails to correct the mismatch in 40 days, the application is automatically rejected and the applicant is not placed on the registration rolls even if they are eligible to vote. For those who attempt to re-register, there is no guarantee that the application will not be cancelled again if the information supplied in the original application was correct and the matching failure was due to a data entry error by the election clerk or when the information was originally entered into the DDS or SSA databases.

Worse, this process is resulting in the cancellation of applications submitted by African American, Latino, and Asian American applicants at rates significantly higher than White applicants. For example, of the approximately 34,874 voter registration applicants whose applications were cancelled between July 2013 and July 15, 2016, with a status reason of “Not Verified,” approximately 22,189 (63.6 percent) identified as Black, 2,752 (7.9 percent) identified as Latino, 1,665 (4.8 percent) identified as Asian-American, and 4,748 (13.6 percent) identified as White.

What makes this process so unpredictable and unduly burdensome for applicants is that even perfect applications can fail the matching process, through no fault of the applicant, because of data entry errors in the creation of the database records, inherent limitations in the matching software and algorithms that are used to compare the data, system glitches, and other problems that applicants have no ability themselves to discern or to correct.

The Social Security Administration’s Office of Inspector General issued a report in June 2009 admitting that the flaws and errors in the SSA’s voter registration verification system were preventing eligible applicants to register to vote. Despite this, Georgia has continued to maintain an error-prone system that disenfranchises thousands of applicants each year.

“We are bringing this suit under the Constitution, and under Section 2 of the Voting Rights Act of 1965, which prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in a language-minority group,” explained Michelle Kanter Cohen, election counsel with Project Vote. “The staggering disproportion in Georgia's rejection rates makes it clear that Georgians of color are being unfairly disenfranchised by this flawed and unfair process.”

“Young people, senior citizens and Georgians who are new to the state are being unnecessarily disenfranchised by Georgia’s voter registration verification process,” said Helen Butler, executive director of the Georgia Coalition for the Peoples’ Agenda, one of the plaintiffs in the action. “While it is gratifying to see young people taking an interest in participating in our democracy, I worry about how this process may discourage them from voting in their first presidential election only to learn that they have been denied the right to vote because of an error-prone and flawed process.”

Stephanie Cho, executive director of Asian Americans Advancing Justice – Atlanta, which is also a plaintiff in the case, is concerned that the exact match protocol is making it unnecessarily difficult for Asian American applicants to successfully complete the registration process. “Many Asian Americans have traditional names which may be unfamiliar to election clerks responsible for entering their registration data into the statewide registration system,” she noted.  “Therefore, they may omit a space between an applicant’s first name and middle name, or include a hyphen that the applicant does not use or even transpose a single letter or number.  Failures to match can occur when Asian American applicants use their surname as the first name, which is a common practice for traditional Korean-American applicants. There is no legitimate reason to cancel applications for the failure to match the databases under these circumstances or on such a short timeline when this practice prevents eligible applicants from being able to vote.”

“Georgia is one of the few states that continues to disenfranchise eligible citizens based upon a strict database matching protocol that is not mandated by HAVA or by state law,” said Francys Johnson, president of the GA NAACP, a plaintiff in this matter. “This litigation against Secretary Kemp is part of our ongoing post-Shelby election administration monitoring program in Georgia,” Johnson said. “This case illustrates why the NAACP will mortgage every asset we have to defend the unfettered access to the ballot. It was paid for with the blood, sweat and tears of our ancestors – voting is sacred.”

There is simply no legitimate reason why this flawed process should be allowed to continue to disenfranchise eligible Georgians, particularly when the evidence shows that the process is disproportionately preventing African American, Latino and Asian American applicants from completing the registration process and is denying them their fundamental right to vote.”

To read the full complaint, please click here.

*CLC was joined by the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), Project Vote, Voting Rights Institute of the Georgetown University School of Law, along with the New York City office of Hughes Hubbard and Reed LLP and Atlanta-based firm of Caplan Cobb LLP, acting as pro bono counsel.

Today’s announcement that prosecutors will not retry former Virginia Governor Bob  McDonnell on corruption charges is extremely disappointing and sends a strong signal that states must adopt strong campaign finance laws to prevent similar quid pro quo schemes from arising in their borders.

Tara Malloy, senior director, appellate litigation & strategy of the Campaign Legal Center, released the following statement:

“It is extremely disappointing that Gov. Bob McDonnell, who clearly abused his office and the public’s confidence, will face absolutely no penalty. Although the Supreme Court held that McDonnell’s prosecution had proceeded under faulty jury instructions, it in no way exonerated the governor or ruled out a retrial. The Department of Justice’s decision to drop the case signals to politicians nationwide that they can engage in pay-to-play politics with impunity and will give comfort to other officeholders currently facing public corruption charges. 

"Now, more than ever, states must make it a priority to protect and preserve the integrity of our democracy by passing strong gift laws and campaign finance laws, both of which are designed to prevent bribery schemes from hatching in the first place.”