Today, the Supreme Court denied certiorari in Free Speech v. FEC, letting stand a decision by the Tenth Circuit Court of Appeals to uphold FEC rules and policies relating to the determination of “political committee” status and, by extension, the registration and reporting requirements applicable to such committees.

On June 25, 2013, the Tenth Circuit sustained the FEC’s “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), which defines this term broadly to capture ads that do not say “vote for” or “vote against” a candidate, but still can “only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”  The Tenth Circuit also approved the FEC’s multi-factor approach for determining when a group has campaign activity as its “major purpose” – an approach that considers not only the group’s spending on “express advocacy,” but also its public and internal documents relating to its central organizing purpose.  Without these measures many groups active in elections could evade the requirement that they fully disclose their spending and donors. 

“We are pleased that the Supreme Court has left undisturbed FEC rules that broadly define what type of groups must provide comprehensive disclosure of their political activities.  Whether the Commission will emerge from its current gridlock to vigorously enforce these rules is a different question, but the decision certainly gives the FEC the green light,” stated Campaign Legal Center Senior Counsel Tara Malloy.  “This ruling also joins many earlier decisions by the High Court holding that a ‘magic words’-style definition of express advocacy does not represent the outer boundary of permissible political disclosure or political committee status.  Instead the Supreme Court has consistently recognized that the public has a right to transparency in connection to a wide range of advertising designed to influence their vote on Election Day.”

The Free Speech challenge began in March of 2012, when the group submitted an advisory opinion request to the FEC proposing to run a series of attack ads without registering as a political committee or complying with the disclosure requirements for political committees.  When the FEC informed the group it would be in violation of the regulations if it proceeded, the group challenged the regulations in the U.S. District Court for the District of Wyoming.  In October 2012 the district court refused to grant the injunction and in June 2013, the Tenth Circuit Court adopted that decision as its own.  The Campaign Legal Center, joined by Democracy 21, filed comments with the FEC, as well as an amici briefs with both the district court and the Court of Appeals. 

The Legal Center and Democracy 21 were aided in this litigation by Larry B. Jones of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, P.C.

To read the amici brief filed by the Campaign Legal Center and Democracy 21 in the Court of Appeals, click here.

On May 16, 2014, the Campaign Legal Center filed in the U.S. Court of Appeals for the Fifth Circuit an opposition to a motion by the organization True the Vote (“TTV”) to expedite its appeal or, in the alternative, to stay the voter ID case in the district court while it pursues its appeal..  On December 11, 2013, TTV was denied intervention as a defendant in the consolidated lawsuits (Veasey v. Perry, No. 2:13-cv-193) challenging Texas’s new voter identification law.  The district court found that TTV did not have a particularized interest that the litigation threatens to impair or impede, and that TTV’s generalized interests in the issues will be adequately represented by the State of Texas. 

“True the Vote wants to assist the State of Texas to defend a voter ID law that was adopted and is being used to harm black and Latino voters,” said J. Gerald Hebert, Executive Director of The Campaign Legal Center.  “But the organization delayed months to try and get their intervention in the case resolved, and now seeks to reward itself for its own failure to act.  Our legal system should not reward such dawdling.” 

On December 20, 2013, TTV filed a notice of appeal from the denial of the motion to intervene. TTV did not, however, file a motion to expedite its appeal or stay the underlying proceedings at that time.  Instead, it waited more than four full months, until May 5, 2014, to file the motion to expedite.  The Legal Center is representing a group of plaintiffs in the TX voter ID lawsuit and its opposition to TTV’s motion noted that TTV: offered no explanation or excuse for this unreasonable delay; failed to file a motion for a stay in the trial court as required by the Federal Rules; and created the “emergency” that it now claims entitles it to expedite the appeal or stay the proceedings below.

The complaint filed by the Campaign Legal Center in the case claims that the voter photo ID law (SB 14) violates the 1st, 14th, 15th and 24th Amendments to the Constitution, as well as Section 2 of Voting Rights Act.  Several challenges (including one brought by the United States) have been brought against the Texas law, which is the one of the most restrictive laws in the nation.  The cases have been consolidated in the Southern District of Texas in Corpus Christi. 

 The Campaign Legal Center is part of the legal team that includes Chad Dunn and K. Scott Brazil (Brazil & Dunn), Neil G. Baron, David Richards (Richards, Rodriguez & Skeith), Armand Derfner (Derfner, Altman & Wilborn), Luis Roberto Vera, Jr. (LULAC) and Craig M. Wilkins and Teresa G. Snelson (Dallas County District Attorney’s Office). 

To read TTV’s motion, click here. 

To read the Campaign Legal Center’s opposition to TTV’s motion, click here.

On May 14, 2014, a three-judge panel of the Seventh Circuit Court of Appeals invalidated or narrowed multiple provisions of Wisconsin’s political disclosure law in Wisconsin Right to Life v. Deininger.

More specifically, the three-judge panel held that Wisconsin’s disclosure requirements could only extend to express advocacy and the functional equivalent of express advocacy, disregarding that the Supreme Court in Citizens United stated unequivocally that it “rejected the contention” that disclosure “must be limited to speech that is the functional equivalent of express advocacy.”  The three-judge panel also struck down Wisconsin’s “PAC-like” disclosure requirements as applied to groups making independent expenditures that did not have express election advocacy as their major purpose.  Both holdings run contrary to a 2012 decision by a different panel of the Seventh Circuit in Center for Individual Freedom v. Madigan, which upheld comparable provisions of Illinois’ campaign finance law.

“The result of this decision is to leave virtually no reporting requirements for independent spending on the books for certain organizations.  A group can pour millions of dollars into advertising in Wisconsin elections without having to make full disclosure to the public, provided that it claims its ‘major purpose’ does not relate to candidate elections,” Legal Center Senior Counsel Tara Malloy stated.  “The reasoning of the decision is also slipshod, selectively distorting parts of controlling Supreme Court precedent, as well as contradicting the recent precedent of its own Circuit.  This panel has apparently forgotten that the High Court has repeatedly found that there is a vital public interest in ensuring that voters receive information about the independent advertising campaigns that bombard them in the election season so that they can make meaningful decisions at the polls.”

To read the amicus brief the Legal Center filed on November 9, 2012, defending the challenged provisions of Wisconsin law, click here.

Last night the Campaign Legal Center, joined by three Connecticut watchdog groups, filed an amici brief in U.S. District Court for the District of Connecticut urging the court to deny a request for preliminary injunction being sought by the Democratic Governors Association (DGA) that would undermine the new campaign finance laws passed by the state in the wake of the Supreme Court’s Citizens United decision.  The DGA seeks to make unlimited “independent” expenditures in support of Connecticut Governor Dannel P. Malloy’s candidacy while at the same time having Governor Malloy fundraise for the DGA – without having to abide by Connecticut’s contribution limits or source prohibitions, and in many cases without disclosure.

Common Cause of Connecticut, Connecticut Citizen Action Group and the League of Women Voters of Connecticut joined in the brief.  Patrick Tomasiewicz, of Fazzano & Tomasiewicz, is serving as Counsel of Record in the filings. 

The DGA is asking the court to declare that certain provisions of the state’s 2013 law cannot constitutionally be applied to a broad range of political activities and to prohibit the state’s Election Enforcement Commission (SEEC) from examining all relevant facts if it is called upon to determine whether any of the DGA’s expenditures have been coordinated with the Malloy campaign and should be treated as contributions.  The DGA sued after the SEEC said that fundraising by a candidate for an organization could be evidence of coordination in some circumstances.  The DGA’s lawsuit claims that this ruling and parts of the 2013 reform law the Governor signed are interfering with its plans to have Governor Malloy raise money for the DGA not subject to the state’s campaign finance laws while it makes unlimited expenditures for ads supporting Governor Malloy’s reelection. 

“The Democratic Governors Association is asking the court for the right to ignore the state’s coordination rules with impunity,” said Larry Noble, Of Counsel to the Campaign Legal Center.  “This challenge is particularly galling in light of the fact that Governor Malloy when he signed the reforms into law last year described the Citizens United decision as a ‘tragic decision’ that ‘reversed years of campaign finance reforms and allowed unlimited private money into politics, empowering the wealthy few at the expense of our democracy.’  If the DGA is successful, it will hobble the ability of the state to determine when outside groups are coordinating with candidates and to prevent the corruption that can arise from that kind of abuse of the democratic process.” 

The brief filed by the reform groups asks the court to dismiss the DGA suit outright or deny the motion for a preliminary injunction on grounds that the DGA is unlikely to succeed on the merits of its claims. 

To read the amici brief filed by the Campaign Legal Center, Common Cause of Connecticut, Connecticut Citizen Action Group and the League of Women Voters of Connecticut (May 13, 2014), click here.

To read the groups' motion to file as amici, (May 13, 2014), click here.

The Campaign Legal Center’s latest Voting Rights Institute training takes place today in Washington, DC. At the session, co-hosted by American Constitution Society, practitioners and law students will be briefed on the skills necessary to enforce voting rights law.  Particular emphasis will be given to litigation to enforce Section 2 of the Voting Rights Act, as well as the Fourteenth and Fifteenth Amendments to the Constitution.  

The half-day training program, taught by some of the most respected voting rights practitioners in the country, will count toward Continuing Legal Education credit (CLE).  Earlier this year, trainings were held in New York City, Columbus, Ohio, and Atlanta, Georgia.

“Voting rights protections in our nation suffered a terrible setback as a result of the Supreme Court’s Shelby County decision last year, but that does not mean we should cede the field to those who would deny any American the right to vote,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center.  “Now, more than ever, we must begin to train new litigators to bring voting rights cases wherever the right to vote is being denied or abridged. In the wake of the Supreme Court’s gutting of the Voting Rights Act, we are seeing more and more efforts by legislatures, city councils and other government officials to burden the right to vote.”  

At the training, noted voting rights experts will provide background on the Voting Rights Act and relevant federal court cases to participants and will then focus on the mechanics of bringing successful voting rights litigation. 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: Pamela Karlan (Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice), Marcia Johnson-Blanco (Co-Director, Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law), Paul M. Smith and Jessica Amunson (Partners, Jenner & Block), and Julie Fernandes (Senior Policy Analyst, Open Society Foundations).

Financial support from the Rockefeller Brothers Fund (rbf.org), the Wallace Global Fund, and the Mertz Gilmore Foundation for the Voting Rights Institute is gratefully acknowledged.  

To read the full agenda for the training, click here.

On March 7, the Delaware Attorney General filed a brief in the U.S. District Court for the District of Delaware urging the Court to deny a motion for a preliminary injunction filed by the Plaintiff, Delaware Strong Families (DSF).  The case, Delaware Strong Families v. Biden, involves a constitutional challenge to campaign finance disclosure provisions associated with Delaware’s new electioneering communications law.

Lawyers from the Campaign Legal Center and the law firm WilmerHale represent the Defendants, Delaware Attorney General Joseph R. Biden III and Delaware Commissioner of Elections Elaine Manlove.

To read the brief, click here.

In a letter sent today to the Internal Revenue Service the Campaign Legal Center joined Democracy 21 to again urge the IRS to deny the application filed by Crossroads GPS for tax exempt status as a section 501(c)(4) “social welfare” organization.

According to the letter from the watchdog groups:

Crossroads GPS submitted an application for tax exemption under section 501(c)(4) of the Internal Revenue Code (IRC) in September 2010. To the best of our knowledge, Crossroads GPS has been operating as a “social welfare” organization for more than three and a half years without being granted section 501(c)(4) tax-status by the IRS.

We believe the record is clear, as we have stated in numerous letters to the IRS, that Crossroads GPS, which was founded by Republican operative Karl Rove, is a campaign operation formed to hide the donors who are financing the campaign expenditures the group makes.

Today, J. Gerald Hebert, Campaign Legal Center Executive Director commented on this latest letter to the IRS:

The FEC's General Counsel has reviewed the activities of Crossroads GPS and issued a report that there “is reason to believe that Crossroads GPS had as its major purpose the nomination or election of federal candidates.” Though the FEC deadlocked 3 to 3 and thus failed to approve the General Counsel's recommendation, the General Counsel's report confirms our position that Crossroads GPS is a political group, not a ‘social welfare’ organization. It is absurd that the IRS has failed to act in this matter. Its failure to act hurts the American taxpayers and tears at the fabric of our democracy. The agency should fulfill its statutory responsibility and deny section 501(c)(4) tax exempt status to Crossroads GPS.

The letter from the watchdog groups forwarded to the IRS a report issued by the General Counsel of the Federal Election Commission that, according to the groups, “concluded, consistent with what we have argued in our letters to the IRS, that Crossroads GPS has a major purpose to influence federal elections.”

The letter noted:

The General Counsel’s report was prepared following review of a complaint filed with the FEC alleging that Crossroads GPS had violated the campaign finance laws by failing to register and report as a “political committee” under the Federal Election Campaign Act, as well as review of information submitted by Crossroads GPS to the FEC in response to the complaint, and reports of political spending filed by Crossroads GPS with the FEC.

According to the letter, the General Counsel examined the campaign-related spending by Crossroads GPS in the 2010 election and concluded:

In short, taking into account all of its spending in 2010, Crossroads GPS appears to have spent approximately $20.8 million on the type of communications that the Commission considers to be federal campaign activity—approximately $15.4 million on express advocacy communications and $5.4 million on non-express advocacy communications that criticize or oppose a clearly identified federal candidate. This total of $20.8 million represents approximately 53 percent of the $39.1 million Crossroads GPS reported spending during 2010. Therefore, Crossroads GPS’s spending by itself shows that the group’s major purpose during 2010 was federal campaign activity (i.e., the nomination or election of a federal candidate.)

Report at 26-27 (emphasis added).

The letter from the watchdog groups noted that the FEC “by a divided 3-3 vote on December 3, 2013, did not adopt the General Counsel’s recommendation to find reason to believe Crossroads GPS had violated the law. Under FEC precedents, a tie vote means the FEC itself takes no formal position, one way or the other, on the report.”

The letter continued:

Notwithstanding the FEC’s tie vote on the issue of whether to pursue an enforcement action, the IRS should take cognizance of the factual analysis of the FEC’s General Counsel, and of his conclusion that Crossroads GPS has a major purpose to engage in campaign activity. The General Counsel’s conclusion is amply supported by the analysis set forth in his report, and confirms the position we have taken, and the documentation we have provided, in our previous letters to the IRS about Crossroads GPS.

The letter from the watchdog groups stated:

Beginning in October 2010, Democracy 21 and the Campaign Legal Center have written to the IRS on ten occasions, urging the IRS to deny tax exemption under section 501(c)(4) to Crossroads GPS because the organization is primarily engaged in campaign activities. As such, it is not a “social welfare” organization and does not qualify for tax exemption under section 501(c)(4). We urge the IRS to take expeditious action to deny the application filed by the organization.

Our letters to the IRS on this subject are dated October 5, 2010, December 14, 2011, September 28, 2011, September 27, 2012, July 23, 2012, May 24, 2012, April 17, 2012, March 22, 2012, March 9, 2012, and January 2, 2013. In those letters, we thoroughly document the extent of the campaign activity that Crossroads GPS has engaged in and presented the legal case as to why Crossroads GPS fails to qualify as a “social welfare” organization.

Our prior letters also raised similar complaints about Priorities USA, a pro-Obama group, Americans Elect, a group that supported independents, and American Action Network, a group supporting Republicans. We continue to urge the IRS to take enforcement actions against these organizations as well by denying their section 501(c)(4) tax-status.

The letter concluded:

The IRS has permitted Crossroads GPS to operate through two elections, and now well into a third election, as a campaign operation masquerading as a “social welfare” organization. Since Crossroads GPS is one of the major “dark money” operations in the country, the failure by the IRS to act has denied the public basic campaign finance information that they have a right to know.

The IRS should deny section 501(c)(4) exempt status to Crossroads GPS, which is being used to funnel huge amounts of secret money into federal elections, and end its phony claim of being a “social welfare” organization.

To read the full letter, click here.

To read the FEC General Counsel’s recommendation (November 21, 2012), click here.

Today, the Campaign Legal Center and the Sunlight Foundation, represented by the Institute for Public Representation of Georgetown University Law Center, filed complaints with the Federal Communications Commission (FCC) against 11 broadcast television stations for failure to publicly disclose legally-required information about sponsors of political ads they aired this year.  Without this information, viewers are denied important information about the organizations and individuals seeking to influence their vote through these ads.

The FCC has required broadcast stations to disclose this information in their “political files” for decades.  The disclosure requirements were expanded in 2002 with the passage of the Bipartisan Campaign Reform Act. Stations in the top 50 U.S. markets have been required to upload this information into their online public files housed on the FCC website since 2012.  Beginning in July 2014, smaller stations will fall under the same requirements.

The complaints stem from reviews of the stations’ online political files, which exposed widespread noncompliance with the disclosure requirements.  For example, many stations failed to identify the following:

• the candidate to which the ad refers;
• the issue of national importance to which the ad refers; and/or
• the chief executive officer or board of directors of the sponsor.

The last requirement is especially important when the sponsor is a relatively unknown organization such as the LIBRE Initiative or American Encore. Without the information included in the online political file, viewers are left in the dark as to who is responsible for the ad. 

The complaints also show that violations occurred without regard to the political leanings of the sponsor, the geographic location, or the station’s network affiliation.  Separate complaints were filed against WDIV (NBC) Detroit; KNXV (ABC) Phoenix; WTVJ (NBC) Miami; WMUR (ABC) Manchester/Boston; WFLA (NBC) Tampa; WTVT (FOX) Tampa; WWJ (CBS) Detroit; KMGH (ABC) Denver; WCNC (NBC) Charlotte; KMSP (FOX) Minneapolis; and WTVD (ABC) Durham.  Each complaint includes a link to the ad and the relevant portion of the stations’ online political files. 

“These files are often the only way we can track political activities and spending by dark money groups that aren’t required to disclose those activities with the Federal Election Commission,” said Sunlight Foundation Managing Editor Kathy Kiely.

“These complaints may lift the curtain on why the National Association of Broadcasters has fought so hard against putting the political files online,” said Meredith McGehee, Policy Director of the Campaign Legal Center.  “In too many cases, the stations and their advertisers failed to comply with the simplest and most basic disclosure requirements.  As a result, the public does not have the information it needs to understand who is speaking on the public airwaves and attempting to influence their views on political issues.  The information required to be included in the political file allows viewers to assess for themselves the information they are presented with on the air.”

“While it is great that the FCC required stations to make their public inspection files available online, the FCC must now act to ensure that television stations are uploading the required information so that the public can be informed.” said Angela Campbell, Director of the Institute for Public Representation.

To ensure better disclosure and improved compliance with the law, the Public Interest Public Airwaves Coalition (PIPAC), whose members include Campaign Legal Center, Sunlight Foundation and others, will continue to monitor the online files and urge the FCC to require broadcasters to standardize their data in machine-readable formats.

To view the WCNC (NBC) Charlotte complaint, click here.

To view the KMGH (ABC) Denver complaint, click here.

To view the WDIV (NBC) Detroit complaint, click here.

To view the WWJ (CBS) Detroit complaint, click here.

To view the WTVD (ABC) Durham complaint, click here.

To view the KNXV (ABC) Phoenix complaint, click here.

To view the WMUR (ABC) Manchester/Boston complaint, click here.

To view the WTVJ (NBC) Miami complaint, click here.

To view the KMSP (FOX) Minneapolis complaint, click here.

To view the WFLA (NBC) Tampa complaint, click here.

To view the WTVT (FOX) Tampa complaint, click here.

To access the FCC database with all the online political files for the top 50 broadcasters, click here 

Sunlight Foundation / Campaign Legal Center Disclosure Complaint List (May 1, 2014)