Arguments Are Latest in Public Citizen v. FEC Alleging Crossroads Should Register as a Political Action Committee

WASHINGTON – Crossroads GPS cannot rely on its own procedural maneuvering to argue that it is now too late to take action against it for failing to register as a political committee in 2010, Public Citizen said in a brief filed late Wednesday in the U.S. District Court for the District of Columbia.

The brief is the latest step in Public Citizen v. FEC, a case brought by Public Citizen, Craig Holman, Kevin Zeese and ProtectOurElections.org against the Federal Election Commission (FEC) for failing to take enforcement action against Crossroads GPS based on a three-three deadlock vote among the commissioners. The legal work on the case is being done by the Campaign Legal Center and Public Citizen Litigation Group.

Despite spending tens of millions of dollars on the 2010 midterm elections, Crossroads GPS refused to register as a political committee with the FEC and as a result did not disclose it contributors to the FEC. Public Citizen and its fellow plaintiffs filed an administrative complaint with the FEC, and the FEC’s general counsel recommended that the agency find probable cause to proceed with an investigation. But the three Republican commissioners blocked action by voting not to find probable cause to move forward. Public Citizen and the other three plaintiffs then sued to have the FEC’s dismissal of its complaint declared unlawful.

The case was on hold for more than a year while Crossroads GPS sought to intervene in the case and to obtain nonpublic documents from the FEC. The delay resulted from the FEC’s resistance, while the plaintiffs sought to keep the case moving.

With the case back on track, Crossroads GPS in early February filed its brief supporting the FEC’s refusal to take action against it. In addition to repeating the FEC’s arguments, Crossroads GPS argues that the case is now moot because the statute of limitations for its failure to register has run out, so the FEC could take no action against it even if Public Citizen succeeds in showing the FEC’s failure to investigate was unlawful.

In the brief filed yesterday, Public Citizen explains that Crossroads GPS has not carried the burden of showing that the case is moot. The statute of limitations Crossroads invokes would not bar the FEC from seeking an injunction requiring Crossroads GPS to register and make the required disclosures. Moreover, Crossroads GPS cannot rely on its own procedural maneuvering in the case to argue that the statute of limitations has now run out.

“This lawsuit gave Crossroads GPS notice of the charges against it well within the limitations period, and it can’t now claim that its own actions to slow down the lawsuit have run out the clock,” said Scott Nelson, attorney for Public Citizen.

Public Citizen’s brief also explains that in light of Crossroads’ extensive electoral spending in 2010, the three commissioners who blocked the FEC from taking action failed to come up with a lawful or reasonable explanation for not taking action against it, and the court should not defer to their views.

“The refusal of three FEC Commissioners to enforce the law not only undermined transparency in our elections but Crossroads GPS treated it as a green light to continue breaking the law,” said Tara Malloy, Campaign Legal Center Deputy Executive Director. “Even after the complaint was filed—and later dismissed—Crossroads GPS continued to spend tens of millions of dollars on express election advocacy without revealing the funders behind that effort.  Further, the FEC’s refusal to enforce the law has encouraged dozens of other ‘dark money’ groups to follow the example set by Crossroads GPS.”

Since its first foray into electoral politics in 2010, Crossroads GPS has continued to pour substantial amounts of money into each subsequent election. The Center for Responsive Politics ranks it the top-spending political nonprofit over the 2010, 2012 and 2014 election cycles, and it likely will remain a major player. But it has so far avoided the disclosure obligations imposed on political committees, and the IRS, intimidated by congressional critics of its scrutiny of political nonprofits, recently allowed it to claim tax-exempt status.

“Americans have been in the dark for long enough about who funds Crossroads GPS long enough,” said Robert Weissman, president of Public Citizen. “It’s high time the FEC took action against Crossroads. Crossroads GPS’ new argument that it’s now too late to do anything about it just won’t wash.”

Inadequate Staffing and High Turnover in Congressional Offices Makes Lobbyists Too Powerful

A group of experts and close observers of Congress today sent a letter urging Congress to form a Joint Committee on the Capacity of Congress to examine and improve congressional operation, which is suffering from understaffing and underfunding.

Since 1980, staffing in the House has declined, and since 1994, staffing in the Senate has remained mostly stagnant. The number of staff devoted to policy has also decreased, especially in the U.S. House where committee staffing is about half of what it was in 1980.

“Congress has been doing government on the cheap for decades. And we get what we pay for,” the letter says. “As the richest nation in the world, we can and should afford to spend a little more to make sure we have some of the smartest, most experienced people in the world making our laws.”

“Too often, going to work on the Hill is seen as a way to get your ticket punched on your way to a lucrative career on K St.,” said Campaign Legal Center’s Policy Director Meredith McGehee.  “As a result of low pay and inadequate staffing levels, turnover among congressional staff is too high.  This lack of internal capacity empowers lobbyists since they are who the staff turn to for policy expertise.” 

"With the looming specter of a Trump presidency, the case for building congressional capacity has never been stronger,” said Lee Drutman, Senior Fellow at New America and author of The Business of America is Lobbying.  “Congress is the first branch of government, and the natural check on a dangerous executive. Yet Congress has spent decades cutting its own capacity, leaving it in a deeply weakened position. This presents a tremendous risk to the future of our nation."

The result of inadequate staffing and funding is a legislative branch incapable of accumulating enough institutional knowledge to be effective, and staffers who are more reliant than ever on lobbyists to help them understand basic details of policy.

Despite employing fewer people, salaries in constant dollars for the average Counsel, Legislative Director, and Legislative Assistant positions in both the House and Senate have also decreased by 9 to 20 percent between 2009 and 2013.

Signing the letter are Lee Drutman, Senior Fellow in New America’s political reform program, Meredith McGehee, Policy Director of Campaign Legal Center, Kevin Kosar, Senior Fellow and Governance Project Director at R Street Institute, Thomas Mann of the Brookings Institution and Norman Ornstein of the American Enterprise Institute.

The letter recommends the newly proposed Joint Committee on Congressional Capacity:

• Review and make recommendations on staffing levels for committees and personal offices
• Review salaries and provide guidance to Senators and Representatives on regularizing staff pay
• Hold at least two public hearings to hear from outside experts and interested parties on staffing and salaries
• Issue a public report on its recommended changes

The letter was sent to the Congressional leadership with copies to the Chairs and Ranking Members of the Appropriations Committees, the Legislative Branch Appropriations Subcommittee and the Senate Rules Committee and House Committee on Administration.

Local Governments are Now Seeking Thousands of Dollars in Attorneys’ Fees for What They Claim are “Frivolous” Voting Rights Challenges 

WASHINGTON – The Campaign Legal Center (CLC) is representing voters in Quitman County, Miss. against a legal action seeking more than $300K in attorneys’ fees. Longtime civil rights attorney Ellis Turnage brought a lawsuit on behalf of two voters challenging the county’s redistricting plan. Before trial, plaintiffs decided to dismiss the case. The county then turned around and claimed the suit was “frivolous,” seeking attorneys’ fees against Turnage and his clients.

The Voting Rights Institute at Georgetown University Law Center, along with attorneys at the Campaign Legal Center, today filed a joint response in the case Figgs and Jackson v. Quitman County arguing the case was based on well-established law and supported by Dr. Allan Lichtman, one of the foremost experts in the field. 

“This is not an isolated case,” said Gerry Hebert, executive director of the Campaign Legal Center. “Unfortunately, we are starting to see a trend of these unsupported motions for fees, as local governments try to chill voting rights litigation. The U.S. Supreme Court, after gutting a key provision of the Voting Rights Act in the Shelby County v. Holder decision, has left litigation as one of the only methods to protect voters. Already, we have too few voting rights attorneys who can bring these complicated cases. Now, livelihoods are being threatened in an effort to avoid accountability for discriminatory voting rights practices. It’s malicious, and courts should reject these motions out of hand.”

A prevailing defendant in a civil rights case can only recover attorneys’ fees if the action was “frivolous, unreasonable or without foundation.”  

“This is a purposefully high bar,” said Danielle Lang, CLC legal fellow. “The rule is meant only to deter nonsense lawsuits, not civil rights claims that may push the boundaries of our current law. If our system punished attorneys and their clients for these suits, we would have never seen the test cases brought by Thurgood Marshall, ultimately leading to Brown v. Board of Education, or Ruth Bader Ginsburg’s courageous litigation establishing equal rights protections for women. Courageous litigation strategies are largely how civil rights law has evolved throughout our country’s history.”  

The Mississippi case is the second that the Voting Rights Institute lawyers at CLC have taken in an effort to preserve litigation as a robust way to protect against voter discrimination. Just last year, CLC attorneys represented a group of voters who challenged Albuquerque City Council’s (New Mexico) redistricting scheme. CLC successfully defended the voters against a city council appeal seeking attorneys’ fees against them. Unfortunately, the city council’s unfounded motion for sanctions of $48,000 in attorneys’ fees against the voters’ lawyers, represented by attorneys at Jenner & Block, is still ongoing. 

In November 2014, a district court actually granted Augusta-Richmond County’s motion seeking attorneys’ fees from the plaintiffs in a voting rights suit led by the American Civil Liberties Union, which alleged the longstanding civil rights organization filed a frivolous challenge. The 11th U.S. Circuit Court of Appeals reversed that award.

Campaign Legal Center and Democracy 21 send IRS letter criticizing decision

WASHINGTON – Campaign Legal Center joined Democracy 21 in a letter sent today to the Internal Revenue Service Commissioner, criticizing the IRS’ decision, made without explanation, to grant recognition to Crossroads GPS as a “social welfare” organization under section 501(c)(4) of the Internal Revenue Code.

“By allowing an organization like Crossroads GPS to spend in our elections secretly and with impunity, the IRS has all but guaranteed that similar ‘dark money’ groups will proliferate,” CLC General Counsel Larry Noble said in an earlier statement. “It is impossible to defend depriving the public of the true sources of the funding behind the flood of political ads seeking to influence election outcomes as ‘promoting social welfare.’ The public has the right to know who is funding our elections.”

###

New complaint highlights more and more Super PAC donors are hiding behind LLCs as the FEC fails to enforce the law

WASHINGTON – The Campaign Legal Center, a leading campaign finance watchdog, along with Democracy 21, today filed a complaint with the Federal Election Commission (FEC), calling on the agency to investigate contributions funneled through “Decor Services LLC” to a pro-Chris Christie Super PAC, just 16 days after the corporation’s formation.

According to a report by the Center for Public Integrity, it appears this company was set up for the purpose of laundering money to a political committee while hiding the true source of the funds, a clear violation of campaign finance laws.

 “Thanks to the FEC’s inaction, we’re seeing a growing trend of campaign donors skirting disclosure laws by hiding behind corporations to anonymously fund elections,” said Paul S. Ryan, deputy executive director of the Campaign Legal Center. “We call on the FEC to enforce the law. Otherwise, big Super PAC donors face no consequences, while Americans have no way of knowing who is funding and influencing elections, including whether illegal foreign money is creeping into American elections.”