Today, the Campaign Legal Center urged the Minnesota Campaign Finance & Public Disclosure Board to approve an advisory opinion making clear that if a candidate solicits funds for an outside group, expenditures made by the group supporting such candidate will be deemed “coordinated” with the candidate, not “independent” from the candidate.  The nonpublic request, filed by attorneys on behalf of an anonymous client, asks whether a candidate’s fundraising of unlimited amounts from individuals and corporations for an independent expenditure committee would be “independent” of the committee’s later express advocacy efforts to elect that same candidate.
 
In comments filed with Minnesota’s campaign finance agency, the Legal Center emphasized that allowing candidates to solicit these funds would by definition constitute coordination, and in effect eliminate the state’s corruption-preventing candidate contribution limits.  The comments further stressed that under Minnesota law, an expenditure is not “independent” of a candidate if it is made with the “implied consent” or “cooperation” of the candidate.  The Legal Center urges the Board to approve the draft advisory opinion that concludes the obvious—that candidate fundraising for an expenditure constitutes implied consent and cooperation regarding that expenditure.  Such an opinion would be fully in keeping with Supreme Court precedent, which has repeatedly recognized that candidate solicitations pose a serious threat of corruption and circumvention, even if the funds are accepted and spent by another entity.
 
“This anonymous requestor has asked the agency to ignore the laws passed by the Minnesota State Legislature as well as the clear precedent of the U.S. Supreme Court in order to allow what would amount to solicitations by candidates of unlimited contributions for their own benefit,” said J. Gerald Hebert, Legal Center Executive Director.  “The High Court has been abundantly clear in its recognition that this type of solicitation poses a very serious threat of corruption or at the very least the appearance of corruption, either of which is sufficient to uphold such limits.  As the Court has pointed out, the candidate solicitation itself is clear evidence that the donation is of value to the candidate.”
 
To read the comments filed by the Legal Center, click here.
 

Yesterday, the Campaign Legal Center filed comments with Connecticut’s State Elections Enforcement Commission strongly supporting the agency’s Proposed Declaratory Ruling 2013-02 upholding a variety of state campaign finance laws. The proposed ruling was issued in response to a petition by Perkins Coie, an international law firm, on behalf of clients seeking clarification of the state’s campaign finance laws in the wake of Citizens United and other court decisions.

The clarifications regarded application of the state’s political committee registration and disclosure laws to three types of organizations, as well as Connecticut’s contractor contribution ban. The Legal Center’s comments urge the Election Enforcement Commission to issue the ruling as written and offers legal precedent to assure the state of the constitutionality of the ruling and the laws behind it.

“States across the nation continue to have their regulations called into question in light of the highly controversial Citizens United decision, but Connecticut’s regulations and this proposed ruling are on solid legal footing, ” said Paul S. Ryan, Legal Center Senior Counsel.

The Legal Center’s comments declared the Commission’s analysis “careful and well-reasoned” and summarized the proposed declaratory ruling as follows:

• Perkins Coie’s contemplated Organization 1, which will not solicit or receive contributions earmarked to make expenditures to influence Connecticut elections, would not be required to register and report as a political committee, id. at 13-14;
• Perkins Coie’s contemplated Organizations 2 and 3, which will solicit and receive contributions earmarked to make expenditures to influence Connecticut elections, would be required to register and report as political committees, id. at 14-21;
• In light of recent court decisions “finding that contribution limits to independent expenditure only political committees are unconstitutional, the Commission will not enforce contribution limits” with respect to such committees, including the committees Perkins Coie’s contemplated Organizations 2 and 3 would be required to organize under Connecticut law, id. at 22; and
• Campaign finance restrictions applicable to state contractors, pursuant to General Statutes § 612(f), remain in full force and effect. Id. at 14, 21.

To read the Legal Center’s full comments, click here.

The lawsuit, Public Citizen v. FEC, was brought by the parties to the 2010 complaint: Public Citizen; Craig Holman, campaign finance expert for Public Citizen; ProtectOurElections.org; and Kevin Zeese, an attorney for ProtectOurElections.org. The Campaign Legal Center and Public Citizen are handling the legal work on the case as co-counsel for the parties.

The groups contend that Crossroads GPS – an organization created by Republican strategists Karl Rove and Ed Gillespie to influence the 2010 midterm elections – fits the legal definition of a political committee: any group that receives or spends more than $1,000 during a calendar year to influence elections and whose major purpose is to support or oppose the election of federal candidates. Political committees must disclose information about their donors and expenditures. However, because the FEC has refused to investigate whether Crossroads GPS is a political committee, the organization will continue to keep its donors secret.

“Three members of the FEC have chosen to ignore the Commission’s own well-established policies and the strong urging of its own General Counsel to investigate these apparent violations, so there is no other recourse but the courts to make the Commissioners fulfill the duties of their office,” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “The ‘see no evil’ posture adopted by the three Republican Commissioners in ignoring what appear to be clear cut violations of the law and to not even allow an investigation is simply disgraceful.”

“Dark Money groups like Crossroads GPS have led to even further corruption of our political system and erosion of our democracy,” said Robert Weissman, president of Public Citizen. “If Crossroads GPS gets away with this, it will be an open invitation to every corporation and wealthy individual who wants to propel specific candidates into office. The voices of all those voters who don’t have millions of dollars to spend on elections will not be heard.”

In 2007, the FEC published a detailed policy laying out how the agency will determine an organization’s major purpose. The policy provides that the FEC will consider public and non-public statements by the organization and the proportion of spending on “federal election activity,” which includes spending on express advocacy (messages calling for a vote for or against a candidate) as well as electioneering communications and other materials that discuss the merits of a candidate immediately before an election.

Evidence indicates that Crossroads GPS operates as a political committee. Between June and December 2010, Crossroads GPS spent $20.8 million on federal campaign activity – more than half of what Crossroads GPS reported spending the entire year, the FEC’s general counsel determined.

And Crossroads GPS’ co-founder, the Republican strategist Karl Rove, boasted on FOX News that Crossroads GPS was an avenue for donors who had maxed out to GOP political committees. In October 2010, the group announced a $4.2 million ad buy targeting eight hotly contested U.S. Senate races. Three-quarters of the ad buy was paid for with money from undisclosed donors.

“Despite these findings, the Republican bloc of commissioners ignored the agency’s own policy for determining political committee status,” said Zeese of ProtectOurElections.org. “They refused to count electioneering communications and public statements in evaluating the major purpose of Crossroads GPS.”

Under the law, political committees must disclose the identities of their donors. But Crossroads GPS has applied for status as a 501(c)(4) nonprofit social welfare group, which is not required to divulge funder names under the tax code. So voters didn’t know who was behind all those midterm congressional election ads.

In response to the complaint, the FEC’s own general counsel determined that there is substantial reason to believe Crossroads GPS is a political committee. But the FEC deadlocked 3-3 along party lines in December 2013 over whether to investigate further, so it dismissed the complaint.

To read the complaint filed today with the court, click here.

To read the original FEC complaint, click here.

To read the statement by the Democratic Commissioners of the FEC, click here.

To read the FEC General Counsel’s recommendation, click here.

The Campaign Legal Center announced today that the Voting Rights Institute will expand to New York, Ohio and Georgia in the coming months to train the next generation of Voting Rights lawyers in the wake of the Supreme Court’s highly-controversial Shelby County decision striking down key provisions of the Voting Rights Act.  Practitioners and law students will learn the ‘ins and outs’ of voting rights enforcement in the wake of the Court’s ruling, particularly cases brought to enforce Section 2 of the Voting Rights Act, and the Fourteenth and Fifteenth Amendments to the Constitution.  

The Voting Rights Institute was first held at American University’s Washington College of Law last June, the same week as the Supreme Court’s decision in the Shelby County case.  The first Institute to be held outside of Washington, DC will occur January 31^st in New York.  The Legal Center and the American Constitution Society are co-sponsoring the Institute and will hold a half-day training program, taught by some of the most respected voting rights practitioners in the country, which will count toward Continuing Legal Education (CLE).  Additional half-day trainings in other cities are planned in 2014, with sessions already scheduled for February 21 in Columbus, Ohio, and on March 28  in Atlanta, Georgia. 

“In the wake of the Supreme Court’s disastrous decision in Shelby County v. Holder, the abuses of the voting rights of Americans have come in waves and have been startling in their audacity, making it very clear that the next generation of voting right lawyers must be trained to take up the mantle of leadership to preserve this precious democratic right,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center.  “The playing field has been drastically and unfairly tilted by the Supreme Court in favor of those who seek to control which citizens vote and which citizens do not vote, and trained voting right litigators are greatly needed.  The Voting Rights Institute is working to fill that vital need and will continue to do so going forward.”

Participants will learn from experts in the field who will provide background on the Voting Rights Act and relevant Supreme Court cases, and who will then teach participants the mechanics of voting rights litigation.    J. Gerald Hebert, the Legal Center’s Executive Director, will serve as the Institute’s lead instructor and he will be joined by seasoned voting rights litigators, appellate advocates, and scholars in the field.

In addition to Mr. Hebert, the Institute’s expert faculty at the New York City training will include: Juan Cartagena (President and General Counsel to LatinoJusticePRLDEF), Ryan Haygood (Director, Political Participation Group, NAACP Legal Defense & Educational Fund, Inc. [LDF]), Myrna Perez (Deputy Director, Democracy Program, Brennan Center for Justice), Ezra Rosenberg (Partner, Dechert LLP) and Paul M. Smith (Partner, Jenner & Block) 

Financial support from the Rockefeller Brothers Fund (rbf.org) and the Wallace Global Fund for the Voting Rights Institute is gratefully acknowledged.  To arrange media coverage or to participate in this event, please contact Katie O’Connor, Assistant Director of Lawyer Chapters for the American Constitution Society, at [email protected] or at 202-741-0707.

To view the full agenda, click here.

The Voting Rights Amendment Act of 2014, introduced today by a bipartisan coalition of Members of Congress, represents an important first step to restoring and protecting the rights of all Americans to vote and make their voices heard in elections. Though this bill, as drafted, has some troublesome provisions, particularly the language providing certain exemptions for voter ID laws that are found to be discriminatory, and though greater protections are still needed to protect all Americans against discriminatory voting practices, it is heartening to see quick and bipartisan action by Congress to address this important subject. We look forward in the days ahead to working with Members on both sides of the aisle to improve the legislation.

The legislation does not restore all of the voting rights protections that were gutted by the Roberts’ Court in its Shelby County decision last June.   Indeed, in the six months since the Shelby County case was decided, we have seen some blatantly discriminatory voting schemes arise in areas that were previously blocked from implementing voting changes without pre-approval. Nevertheless, this legislation is a clear indication that Congress recognizes the great harm done by a narrow majority of Supreme Court Justices and a strong signal that Members understand it is now their responsibility as the legislative branch to repair the damage done by the Court.

We especially commend Representatives James Sensenbrenner and John Conyers for their leadership on this legislation. We hope legislative leaders will give priority to this issue in 2014. The right to vote is the most important right we have as Americans.  

To read the Voting Rights Amendment Act of 2014, click here.

• Hebert served more than two decades in the Department of Justice, where he served in many supervisory capacities, including Acting Chief, Deputy Chief, and Special Litigation Counsel in the Voting Section of the Civil Rights Division. Hebert has served as chief trial counsel in over 100 voting rights lawsuits, a number of which were ultimately decided by the Supreme Court.  He has also taught courses on voting rights at Georgetown University Law Center and is widely recognized as one of the leading experts on voting rights.

Public Citizen, ProtectOurDemocracy.org and others filed a complaint with the FEC in October 2010 alleging that the group’s campaign expenditures and organizational objectives made it a political committee that must disclose its donors under federal campaign laws. Despite the strong case made by the FEC’s General Counsel that the 501(c)(4) group violated federal law, the Commission deadlocked along party lines over whether to investigate further, preventing any action. While the Democratic commissioners agreed there was enough evidence to proceed, the three Republican commissioners voted against looking into the case further.

The suit will argue that the FEC’s dismissal of the case following the 3-3 deadlock was arbitrary, capricious, an abuse of discretion and contrary to the law.

“The nonpartisan General Counsel’s office recognized Crossroad GPS’s failure to register as a political committee as a clear-cut violation of the law and strongly recommended a full investigation but once again the Republican Commissioners blocked enforcement of the laws on the books,” said Paul S. Ryan, Senior Counsel at the Campaign Legal Center. “Despite the Supreme Court’s assurances in Citizens United that voters would have full disclosure by groups like Crossroads GPS, the group has spent nearly $100 million on election ads since 2010 without disclosing its donors. A ruling by the FEC that Crossroads GPS is a political committee would result in this disclosure for past and future elections.”

Legal Center Executive Director J. Gerald Hebert said, “This case will test whether the courts will hold groups that spend tens of millions of dollars to influence federal elections accountable when they try to claim their purpose is not to influence federal elections.”

“The rationale of the Republican bloc of commissioners is tortured and obstructionist,” said Craig Holman, co-signer of the complaint. “They refused to follow the FEC’s own policies in determining political committee status.”

Attorneys at the Campaign Legal Center and Scott Nelson of Public Citizen will be representing the complainants who filed the 2010 FEC complaint, including Public Citizen, ProtectOurElections.org, Kevin Zeese and Craig Holman. The suit will be filed in federal district court within 60 days of the complaint’s dismissal by the FEC, as required by law.

To read the original complaint, click here.

To read the statement by the Democratic Commissioners of the FEC, click here.

To read the FEC General Counsel’s recommendation, click here.

On Friday, the Campaign Legal Center urged the State of New Mexico to proactively address likely fallout related to Citizens United after a federal appeals court on December 18 upheld a lower court ruling in Republican Party of New Mexico v. King striking down the state contribution limits for independent expenditure committees. In comments filed with the New Mexico Secretary of State’s office in response to a notice of proposed rulemaking, the Legal Center urged the state to address the issues of disclosure and coordination in particular in order to avoid some of the consequences suffered by other states and at the federal level.

“The experiences of other states strongly suggests that New Mexico will soon see an explosion of big-money Super PACs and ‘dark money’ groups that do not publicly disclose their donors,” said Paul S. Ryan, Legal Center Senior Counsel. “The State has an opportunity through this rulemaking to mitigate some of the potential damage but it needs to act quickly. Otherwise the integrity of the State’s contribution limits and disclosure laws will be in jeopardy.”

In addition to addressing the issues of disclosure and coordination, the comments filed by the Legal Center also address a number of other campaign finance and lobbying matters outlined in the State’s notice of proposed rulemaking.

To read the comments filed by the Legal Center, click here.

Today, the Campaign Legal Center announced Emma Simson as the recipient of the second Rapoport Legal Fellowship, and the hiring of Megan McAllen, the first Rapoport Fellow, as a staff attorney. The fellowship is made possible by a generous grant from the Bernard & Audre Rapoport Foundation. The one-year position is designed for recent law school graduates embarking on careers in campaign finance and election law.    

“The generosity of the Rapoport Foundation continues to allow us to bring in very talented young lawyers at a time when common sense campaign finance laws and voting rights are under siege in our nation,” said Campaign Legal Center Executive Director J. Gerald Hebert.  “The additions of Ms. Simpson and Ms. McAllen have allowed us to expand our role in the courts to defend campaign finance and disclosure laws and to help safeguard the fundamental American right to vote on Election Day.”

Cases involving voter suppression, which have spiked since the Supreme Court struck down key provisions of the Voting Rights Act this year, will be a primary focus for Ms. Simson.  Ms. McAllen, now an Associate Counsel at the Legal Center, will continue litigating a variety of campaign finance and election law issues before state and federal courts, and will be active in an expanding range of voting rights and election protection efforts. 

Ms. McAllen is a graduate of the University of Virginia School of Law (2011) and Princeton University (2007).  She is admitted to practice law in the State of California.

Ms. Simson is a graduate of Yale Law School (2013), the University of Oxford (MSc, 2010), and the University of Maryland (2007).

Since its inception in 1986, the Bernard & Audre Rapoport Foundation has dedicated almost $60 million in grants to improve the social fabric of life.  Its mission is to meet basic human needs while building individual and social resiliency.

In a letter sent today to the House of Representatives, reform groups urged House members to vote no on H.R. 2019, sponsored by Rep. Gregg Harper (R-MS), which purports to provide for a 10-year pediatric research initiative and repeals the presidential public financing system.

The reform groups sending the letter include Americans for Campaign Reform, the Brennan Center for Justice, the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Demos, the League of Women Voters, Public Citizen, and U.S PIRG.   

To read the full letter, click here.

According to the letter from reform groups:

H.R. 2019 would repeal an important anti-corruption campaign finance law which worked well for most of its existence and provided ordinary Americans with a critical role to play in financing presidential elections. The presidential public financing system needs to be repaired, not repealed.

According to the letter:

In the last Congress, Representative Harper introduced H.R. 3463, legislation to reduce federal spending and the deficit by terminating taxpayer financing of presidential election campaigns and party conventions. In this Congress, Representative Harper has introduced H.R. 2019, legislation to eliminate taxpayer financing of presidential campaigns and party conventions and reprogram savings to provide for a 10-year pediatric research initiative.

The two Harper bills vary in their purported approaches, but have the same basic purpose – to repeal a fundamentally important anti-corruption campaign finance law.

According to the letter:
 
In a Dear Colleague sent on July 8, 2013, Representatives Rosa DeLauro (D-CT) and Nita Lowey (D-NY) show that H.R. 2019 would not really do anything to increase spending for pediatric research.
 

Representative DeLauro is Ranking Member on the Labor, Health and Human Services Subcommittee and Representative Lowey is Ranking Member on the House Appropriations Committee.

According to the letter:

According to their Dear Colleague letter:

Even though the $13 million it purports to make available for that purpose is minuscule, relative to current spending or the$1.55 billion lost by NIH to sequestration this year, some Members may nevertheless feel inclined to support the measure on the theory that $13 million is better than nothing. We stand with those who support pediatric research, but the bill would not increase these much needed investments.

According to the letter:

According to their Dear Colleague letter:

[H.R. 2019] does terminate public financing for campaigns, but it does not appropriate the savings for research.  Rather, it specifies that those amounts shall be available to NIH “only to the extent and in such amounts as are provided in advance in appropriation Act”.  In short, the bill makes no appropriations of funds for pediatric research but instead merely authorizes them to be made.

According to the letter:

The Dear Colleague letter pointed out that the Harper bill places thefunds in the normal appropriations process where they are subject to the allocation levels already set by the House for such funds and it does not increase the funds available to be spent.The letter noted:

The reason funding for biomedical research has been decreasing is not because of some shortage of authorizing legislation, and piling on one more unfunded authorization ofappropriations will not interrupt that downward trend even for a moment.

According to the letter:

Presidential candidates long recognized the value of the alternative system for financing their elections. Almost all candidates from both major parties voluntarily used the system to pay for their presidential campaigns from 1976 through 2004. Thereafter, the presidential funding system began to break down because no steps were taken by Congress to update the system.

The 2012 election made clear that the presidential public financing system is essential both to prevent corruption and to provide candidates with an alternative way to finance their campaigns without having to rely on influence-seeking bundlers and donors.

Legislation to restore an effective presidential public financing system, H.R. 270, has been introduced in this Congress by Representatives David Price and Chris Van Hollen.

The letter concluded:

H.R. 2019 is a fig leaf to mask its real purpose. The legislation is not a serious effort to increase funding for pediatric research, but rather the fourth attempt by House Republican leaders, beginning in the last Congress, to kill the presidential public financing system.

This is the real issue House members will be voting on when this legislation reaches the House floor.

The presidential public financing system is necessary to protect citizens against government corruption and to provide presidential candidates with an alternative, citizen-based means to finance their campaigns.

We strongly urge you to vote to preserve an essential anti-corruption campaign finance law by voting against H.R. 2019.

To read the full letter, click here.

Based on the IRS’s announcement last week that it is undertaking a rulemaking proceeding to address the problems arising from campaign activities by 501(c)(4) groups, U.S. Representative Chris Van Hollen, Democracy 21, Public Citizen and the Campaign Legal Center today dismissed without prejudice the lawsuit they filed in federal court to obtain such a rulemaking proceeding.

The lawsuit, filed on August 21, 2013, challenged the failure of the IRS to conduct a rulemaking proceeding to adopt new rules to properly implement the tax law’s eligibility requirements for tax-exempt status as a 501(c)(4) “social welfare” organization.

Under the existing rules, 501(c) organizations spent more than $300 million in the 2012 federal elections, with the great bulk of those campaign expenditures made by 501(c)(4) organizations that kept secret the identity of the donors funding their campaign spending.

Van Hollen and the three organizations will closely monitor the IRS proceedings announced last week. If the agency fails to adopt new regulations to properly implement the tax laws and prevent groups from misusing the laws to obtain 501(c)(4) tax-exempt status, the lawsuit will be filed again.

The lawsuit built on a petition filed with the IRS in July 2011 by Democracy 21 and the Campaign Legal Center urging the agency to undertake a rulemaking proceeding to bring its regulations into compliance with a provision of the Internal Revenue Code requiring 501(c)(4) groups to be devoted “exclusively” to social welfare activities, which do not include campaign activities. 

By regulation, the IRS has said that social welfare groups need only be “primarily” operated for social welfare purposes, a standard that has been interpreted to allow such groups to spend up to 49 percent of their funds on campaign activities.  Because 501(c)(4) groups are  not required to disclose their donors, the IRS regulations have permitted such groups to serve as vehicles to  inject hundreds of millions of dollars from secret contributors into federal elections.

In its announcement last week, the IRS said that its rulemaking proceeding will consider specific changes to the definition of what constitutes “campaign-related activity” by a 501(c)(4) group.  Currently, the IRS uses a “facts and circumstances” test to determine the spending that constitutes campaign activity.

The IRS also said it would consider whether to revoke the regulation challenged in the lawsuit and adopt new regulations to limit how much campaign activity a social welfare organization is permitted to engage in under the tax laws, however campaign activity is defined.

If the IRS rulemaking fails to make clear that a 501(c)(4) group must engage exclusively in “social welfare” activities and thus may not engage in any campaign activity, or, at most, in any more than an insubstantial amount of campaign activity, the rules will not properly implement the statute.

Retaining the current understanding that groups can spend up to 49 percent of their annual expenditures on campaign activity would unlawfully license 501(c)(4) groups to continue to spend huge amounts on campaign activities without disclosure of the donors funding the expenditures.

The Internal Revenue Code did not envision that 501(c)(4) groups would engage in campaign activities. Groups that want the benefit of tax exemption for campaign activities should create organizations under section 527 of the tax laws, which provides tax-exempt status for groups engaging in campaign activities andrequires such groups to disclose their campaign expenditures and the donors financing the spending.

To read the notice of dismissal filed today, click here.