Today, the Campaign Legal Center filed in support of the State Bar of Michigan’s request that the State properly enforce Michigan Campaign Finance Act (MCFA) disclosure requirements in judicial elections. In comments filed in the proceeding, the Legal Center urged Michigan Secretary of State Ruth Johnson to reverse an erroneous 2004 interpretation of MCFA by her predecessor that significantly undermined the State disclosure provisions and led to rapid rise in undisclosed political spending in the state.

“The ruling issued in 2004 misinterpreted Supreme Court decisions and effectively gutted the state’s disclosure provisions by narrowing them beyond effectiveness to disastrous effect in the state, particularly with regard to judicial elections,” said Campaign Legal Center Senior Counsel Paul S. Ryan. “The U.S. Supreme Court has been very clear in its decisions, both before and after the 2004 Michigan ruling, that disclosure laws advance the compelling government interest in providing voters with information regarding those spending money to influence voting decisions.”

Michigan campaign finance statutes require disclosure of expenditures for political ads that “support or oppose” candidates in order to capture sham issue ads attacking or supporting candidates and not just those expressly advocating the election or defeat of candidates using phrases like “vote for” and “vote against.” The 2004 interpretation by the Michigan Secretary of State’s office incorrectly advises that only express advocacy could be covered, despite the U.S. Supreme Court decision in McConnell v. FEC ruling that the statutory “support or oppose” standard is constitutionally permissible.

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

Ideological and interest group opponents of campaign finance regulation continue to flood the courts with cases challenging campaign finance laws at the federal, state and municipal levels.  McCutcheon v. FEC, a challenge to the federal aggregate contribution limits, will be argued before the U.S. Supreme Court this Term, with still more cases on the way up through the lower courts. At the same time, attempts to enact racially-discriminatory voting laws at the state level has generated a spike in voting rights cases, a situation exacerbated by the Supreme Court’s recent decision to strike down a key provision of the Voting Rights Act in Shelby County v. Holder. The Legal Center has released an updated summary of that litigation to facilitate the tracking of the long list of cases.

In 2013, reform opponents continue their attempt to extend the reasoning of the Supreme Court’s decision in Citizens United v. FEC to challenge a broad range of campaign finance laws. 

In particular, anti-reform litigators have won Supreme Court review in McCutcheon v. FEC, a challenge to the aggregate limits on contributions to federal candidates, parties and political committees.  A three-judge court in Washington D.C. upheld the aggregate limits in September 2012, and the High Court noted probable jurisdiction in February 2013.  The plaintiffs not only challenge the aggregate limits, but also ask the Supreme Court to reconsider its long-standing position articulated in Buckley v. Valeo that contribution limits are less burdensome than expenditure limits and therefore warrant “less rigorous” review. The McCutcheon case thus threatens to be the “next Citizens United”—another radical decision by the Supreme Court to reverse decades of its own precedents. Oral argument is scheduled for October 8, 2013.

By contrast, political disclosure laws remain a target but have largely withstood attack. The First, Fourth, Seventh, Ninth, Tenth and Eleventh Circuits have all upheld strong disclosure laws applicable to independent spending following Citizens United.  In 2013, the Tenth Circuit upheld the broad federal regulatory definition of “express advocacy” (Free Speech v. FEC), and the Fourth Circuit upheld a number of West Virginia’s disclosure provisions, including a requirement that groups funding electioneering communications disclose all donors, and not simply donations “earmarked” for electioneering communications (Center for Individual Freedom v. Tennant).  Further, the Supreme Court in January 2013 declined to grant certiorari in Real Truth About Abortion, a Fourth Circuit decision sustaining multiple federal rules governing disclosure, suggesting that the High Court is not eager to undercut strong political disclosure.

In the sphere of voting rights, the Supreme Court in its June 2013 Shelby County ruling struck down the formula used to determine which states and localities would be covered under the Voting Rights Act’s “preclearance” requirement, holding the coverage formula unconstitutional in light of “current conditions.” Since then, voting rights cases have continued to multiply, albeit under the more difficult standards of the Act’s remaining provisions—notably, the Court left intact Section 2, which blocks discriminatory voting rules nationwide, as well as Section 3, which allows courts to impose preclearance requirements on (or “bail in”) particular jurisdictions found to have discriminated against voters. Now, the Act’s future may be decided by a handful of new and ongoing Texas cases brought under these provisions, including two Justice Department attempts to re-impose federal oversight of voting changes through Section 3’s “bail in” mechanism (Perry v. Perez and United States v. Texas).

The Legal Center’s litigation summary attests to the enormous number of active legal cases concerning campaign finance and voting rights and underscores the need to remain vigilant in tracking and participating in litigation in 2013 and coming years.

To read the Legal Center’s updated litigation summary, click here. 

The most recent update of the litigation summary is always available on the Legal Center website’s Court Case of Interest page between the active cases and past cases.

This semester, Georgetown University law students will have the opportunity for hands-on legal work on pending election law and voting rights cases through a practicum course for credit.  The election law class will be co-taught by Paul M. Smith, the Chair of Jenner & Block’s Appellate and Supreme Court Practice, and J. Gerald Hebert, the Campaign Legal Center’s Executive Director and Director of Litigation.

The course will review campaign finance regulation and voting rights law and provide students with opportunities to draft legal memoranda and briefs in pending cases, as well as proposed legislative fixes, at a time when voting rights and campaign finance reforms across the country are facing new challenges.

“This course allows students to get real world experience in pending campaign finance and voting rights cases,” said J. Gerald Hebert of the Legal Center.  “This is a busy and challenging time in the wake of major Supreme Court decisions that have severely undermined voting rights and campaign finance reforms.”  

The semester-long course consists of a weekly two-hour seminar and ten-hours of supervised work per week. 

On Friday, the Campaign Legal Center, Chicago Appleseed and the Illinois Campaign for Political Reform (ICPR) filed an amici brief supporting the state of Illinois’ motion to dismiss a lawsuit challenging various state law contribution limits. The brief was filed in the U.S. District Court for the Northern District of Illinois in Illinois Liberty PAC v. Madigan, with the assistance of local counsel and ICPR executive director David R. Melton and local counsel Thomas Rosenwein.

“The Supreme Court has repeatedly upheld contribution limits in the interest of preventing corruption and the appearance of corruption. The state of Illinois has seen more than its fair share of corruption, yet Illinois Liberty PAC is asking the district court to ignore precedent and strike down contribution limits far higher than those previously upheld by the Supreme Court,” said Paul S. Ryan, Legal Center Senior Counsel. “In previous challenges to contribution limits, the Supreme Court has time and again upheld such limits as long as they are not so low as to prevent candidates and PACs from raising sufficient funds for effective advocacy. Plaintiff state senator Kyle McCarter’s victorious campaigns under the generous limits make clear that the limits are constitutional.”

The lawsuit challenges the state’s $50,000 limit on PAC contributions to candidates, $5,000 limit on contributions from individuals to candidates, $10,000 limit on contributions from individuals to a PAC and $10,000 limit on contributions from corporations, labor unions and other associations to a candidate for state office. Plaintiffs claim these limits violate their First and Fourteenth Amendment rights to free and freedom of association. Federal PACs may accept only $5,000 from individuals, a mere tenth of the Illinois cap, and the Supreme Court has upheld contribution caps as low as $275.

In September the Legal Center and other amici filed a brief with the court opposing Illinois Liberty PAC’s ultimately unsuccessful attempt to get a preliminary injunction.

To read the brief filed on Friday, click here.

To read the amici brief filed by the Campaign Legal Center, Chicago Appleseed and Illinois Campaign for Political Reform on September 14, 2012, click here. 

Today, the Public Interest Public Airwaves Coalition (PIPAC), whose members include the Benton Foundation, the Campaign Legal Center, Common Cause, Free Press, the New America Foundation and the United Church of Christ Office of Communication Inc., along with the Sunlight Foundation, filed comments with the Federal Communications Commission (FCC) about the agency’s rules requiring broadcasters to post their political files online.
In April 2012, the FCC adopted rules requiring broadcasters in the top 50 markets that are affiliated with the "top four" national networks to post their political files online. All other stations will be required to post their files online by July 2014. Political files contain information on political advertisements, including the groups purchasing ads, the prices paid and times aired. They include political advertising information on all electoral races and ballot initiatives — information that is not available anywhere else. Posting these files online has created greater transparency about the impact of political ads on the electoral process.

In their filing, PIPAC and the Sunlight Foundation underscore the public benefits of the FCC’s online-posting requirement. Having access to online files has contributed to more comprehensive reporting on the sources of political advertising and has provided the public with critical information regarding the funders behind these advertisements.

In today's filing, the groups call for improvements to the current reporting system and urge the FCC to adopt data and reporting standards that will improve the accessibility and usability of the data. The groups ask the FCC to adopt data standards that are similar to those the Federal Election Commission uses and recommends that the agency require stations to file machine-readable data. These improvements would help reduce reporting errors while also facilitating the creation of a more user-friendly database.

PIPAC and Sunlight note that taking these steps "would permit political file data to be easily aggregated and analyzed. The public would benefit from being better informed about important electoral races, issues, and the political process in general. It would permit the public, as well as the Commission, to better monitor broadcast stations' compliance with statutory and regulatory requirements. Further, it would significantly reduce paperwork burdens for broadcast stations."

To read the comments, click here.