Yesterday, the U.S. Court of Appeals for the Tenth Circuit upheld an earlier district court ruling upholding federal rules regulating political committees and other independent spenders in Free Speech v. FEC. The Campaign Legal Center, joined by Democracy 21, had filed an amici brief in the case, which is one of a long line of challenges to federal disclosure laws.  A Wyoming group called Free Speech brought the case to challenge the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the Federal Election Commission’s (FEC) methodology for determining when a group has campaign activity as its “major purpose.” Both rules serve to implement the federal disclosure laws and inform the FEC’s determination of political committee status.

The subpart (b) definition of express advocacy is crucial because it captures sham issue ads that do not say “vote for” or “vote against” a candidate, but “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”

“The Supreme Court and the Circuits have repeatedly and definitively recognized the compelling public interest in disclosing the groups or individuals that spend on advertising to influence our elections,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “This suit, like a flurry of similar suits nationwide, asked the court to ignore precedent and reject the public’s right to know who or what group is spending large amounts of money to determine the winners and losers on Election Day.  In particular, Free Speech ignored altogether the Supreme Court decision in Wisconsin Right to Life v. FEC, which articulated a test for the ‘functional equivalent of express advocacy’ that is virtually identical to the FEC test that was challenged in this case.”

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 filed to overturn the regulations in the U.S. District Court for the District of Wyoming.  The Campaign Legal Center, joined by Democracy 21, filed comments with the FEC and an amici brief with the court in opposition.  In October 2012 the District Court refused to grant the injunction citing a “wall of precedent” upholding disclosure laws. The Tenth Circuit Court adopted that decision as its own.

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

To read the order in the Tenth Circuit Court, click here.

Today’s decision is a huge setback for civil rights in our nation.  It is citizens, specifically the nation’s minorities, who will suffer as a result the votes of 5 Supreme Court Justices.   The Roberts Court proved again that it will not be deterred by Supreme Court precedent, the realities on the ground in our nation; nor will it defer to Congress even when the legislative branch is granted clear authority by the Constitution to remedy our nation's long history of discrimination against racial and language minorities.  The Court today declared racism dead in this country despite mountains of evidence to the contrary.  Section 4 and by extension Section 5 are the linchpins of the Voting Rights Act, which continued to block discriminatory voting changes up until today in the aftermath of the Act’s last reauthorization in 2006.  That reauthorization was passed by overwhelming bipartisan majorities in both the House and the Senate.  And it is time once again for Congress to enact legislation to protect minority voters and to do so quickly. 

The Constitution grants Congress clear and complete authority to ensure that no American is denied the right to vote because of their race, but a narrow majority of the Supreme Court usurped that authority today.  This ruling is an extreme act of judicial activism and Congress must respond in a strong bipartisan manner with new legislation to safeguard the franchise.

Tonight, the Campaign Legal Center and American University’s Washington College of Law will jointly launch a new Voting Rights Law Institute to help train the next generation voting rights litigators.  The four-night Institute will be held tonight through Thursday night (June 27), to train and update law students and practitioners on enforcement of voting rights law, particularly cases brought to enforce Section 2 of the Voting Rights Act, and the Fourteenth and Fifteenth Amendments to the Constitution.   This Voting Rights Institute is believed to be the first of its kind. 

 Experts in the field will provide background on the Voting Rights Act and relevant Supreme Court cases and will then focus on teaching participants the litigation mechanics of voting rights litigation.  Participants will gain detailed knowledge of the Voting Rights Act and how it impacts voting rights laws state-by-state.  Institute instructors will teach the skills needed to litigate voting rights cases.  J. Gerald Hebert, the Legal Center’s Executive Director will serve as the Institute’s lead instructor and each night he will be joined by seasoned voting rights litigators, appellate advocates, and scholars in the field.

“Not since the Voting Rights Act was passed by Congress in 1965 has there been so great a need for new voting rights litigators,” said J. Gerald Hebert.  “The franchise is under siege in our nation as state legislators and local governments jockeying for partisan advantage enact voting restrictions that disproportionately impact the racial and language minorities.  Whether or not the Supreme Court strikes down the preclearance provisions of the Voting Rights Act this week, these attacks on the right to vote will continue and the Voting Rights Institute is designed to help train the lawyers to fill the breech and protect the franchise.”    

The Institute’s expert faculty will include: Gilda R. Daniels (Associate Professor of Law at the University of Baltimore School of Law), Armand Derfner (Attorney, Derfner, Altman & Wilborn), Chad W. Dunn (Partner, Brazil & Dunn), Allan J. Lichtman (Distinguished Professor of History at American University), Nina Perales (Director of Litigation, Mexican American Legal Defense and Education Fund [MALDEF]), David Richards (Attorney, Richards, Rodriguez & Skeith), Paul M. Smith (Attorney, Jenner & Block), Bruce V. Spiva (Founding Partner, The Spiva Law Firm) and Brenda Wright (Vice President of Legal Strategies, Demos).

The Rockefeller Brothers Fund (rbf.org) generously provided financial support to help make the Voting Rights Institute possible.  An overview of the Institute’s schedule follows below. Lawyers and law students can register online for CLE, certificate or academic credit.  For more information in the Voting Rights Institute, including detailed biographies of faculty members, or to register, click here.

Voting Rights Institute

Four Evenings—June 24 – 27, 2013 from 6:00pm-9:00pm

Understanding the Voting Rights Act

First Evening (6/24):  Overview of Voting Rights Act

A synopsis of the Voting Rights Act, with a focus on Sections 2, 4 and 5; an overview of the issues and arguments in Shelby County, Alabama v. Holder (which will either have been decided by then or will be decided that week). 

Second Evening (6/25):  A Look at Section 2, Prohibition on Voting Discrimination

Regarding Section 2, the following cases/legislation will be highlighted and discussed: the 1982 amendments to the Voting Rights Act (overruling City of Mobile v. Bolden and establishing a totality of circumstances “results” test); Thornburgh v. Gingles; Johnson v. DeGrandy; and LULAC v. Perry; Growe v. Emison proving racially discriminatory intent under Village of Arlington Heights v. Metropolitan Housing Corp.; the Texas redistricting cases (still pending) where the Court found intent; differing proof in Section 2 results cases and intent constitutional cases; and the First Amendment and proving partisan gerrymandering (in light of Vieth v. Jubelirer); Larios v. Cox (winning a political gerrymandering case by bringing a one-person, one-vote claim).

Bringing Voting Rights Cases to Court

Third Evening (6/26): Where and When to File

Mechanics of bringing lawsuits to enforce voting rights:  whether to file in state court or federal court; how to ensure that plaintiffs have standing to sue (including associational standing issues that may arise); how to develop proof of discriminatory intent in discovery;  overcoming claims of legislative privilege; how to prepare and keep under control expert witnesses in Voting Rights Act cases, including a primer on how to conduct an analysis of whether voting patterns are racially polarized (as required under Section 2 of the Voting Rights Act).

Fourth Evening (6/27):  Best Litigation Practices

Mechanics of bringing lawsuits to enforce voting rights: examination of best litigation practices in all stages of a case, both pre-trial and at trial: review of model pleadings, review of sample depositions, review of trial transcripts demonstrating best techniques of examining and cross-examining witnesses, and presenting evidence.

Wrap-up of all four classes with concluding overview of lessons from the week.

Today, a proposed consent judgment and decree was presented to a three-judge court in Washington, DC, granting a Voting Rights Act bailout to Hanover County, Virginia while the Supreme Court could rule as early as tomorrow on the Act’s preclearance provisions. If today’s bailout is approved, Hanover County will add to the growing list of state or local governments to bailout from the preclearance provisions of the Voting Rights Act. Those provisions known as Section 5 of the Voting Rights Act are being challenged in Shelby County v. Holder. 

Critics of Section 5 argued in briefs to the Court that the bailout process is far too arduous and cost-prohibitive. Just within the last six months, states and municipalities from California to New Hampshire have shown that argument to be untrue.

“Bailout after bailout proves that the process is not to arduous nor expensive and that the coverage formula self-tailors, and thus that Section 5 coverage adjusts to current needs required to protect the franchise,” said Campaign Legal Center Executive Director J. Gerald Hebert, who serves as legal counsel for Hanover County and the vast majority of all bailed out jurisdictions in his capacity as a solo practitioner.  “The Voting Rights Act is not a museum piece, it remains a vital safeguard of the right to vote for our nation’s minorities. These bailouts, just like the discriminatory voting practices o that continue to be overturned using Section 5, offer proof that the Voting Rights Act is alive and well and working as Congress intended.”

To read the joint motion to enter consent judgment and decree, click here. To read the proposed consent judgment and decree, click here.

The Campaign Legal Center filed a friend of the Court brief discussing bailout in Shelby County v. Holder.  To read the brief, click here.

Today the Campaign Legal Center filed an amicus brief in the United States Court of Appeals for the Ninth Circuit in support of the independent expenditure disclosure laws of the City of Los Angeles. The Legal Center’s brief in Dickranian v. City of Los Angeles points out that the Ninth Circuit and the U.S. Supreme Court have repeatedly upheld disclosure requirements and argues that the Ninth Circuit should do so again in this case.

“The U.S. Supreme Court has time and again upheld disclosure laws by overwhelming margins, citing the important public interest in disclosing those seeking to buy influence with candidates and officeholders through political expenditures with details of how they’re spending the money,” said Paul S. Ryan, Legal Center Senior Counsel. “This suit asks the Ninth Circuit to overlook its own rulings on disclosure as well as those of the Supreme Court. Dating back to the challenges of the post-Watergate reforms of the 1970s the courts have been very clear and very consistent in upholding disclosure laws.”

The Los Angeles law requires those making independent expenditures above certain thresholds in city candidate or ballot measure elections to file a campaign finance report and a copy of the communication. The plaintiff/appellant in this case spent nearly $8,000 sending letters to more than 17,000 Los Angeles voters urging them to elect a particular candidate for the office of City Attorney. The district court upheld the City’s disclosure law.

To read the brief filed today in the Court of Appeals by the Campaign Legal Center, click here.

Reform groups issued a statement today expressing strong support for the DISCLOSE Act of 2014 introduced today by Senator Sheldon Whitehouse (D-RI) with 49 cosponsors. The DISCLOSE Act would ensure that that voters know the identity of donors who have been secretly financing campaign expenditures in federal elections.

The organizations 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, People For the American Way, Public Citizen and Sunlight Foundation.

According to the statement:

Donors funneled more than $300 million in secret contributions into the 2012 national elections through outside spending groups.

National polls have shown that citizens overwhelmingly favor disclosure by outside groups of the donors financing their campaign expenditures. The basic right of citizens to know whose money is being spent to influence their votes has long been recognized by Congress in enacting campaign finance disclosure laws and by the Supreme Court in upholding these laws.

The statement continued:

The Supreme Court in the Citizens United case, by an overwhelming 8 to 1 vote, upheld the constitutionality of and need for disclosurerequirements for outside groups making expenditures to influence federal elections. The Court stated:

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech ofcorporate entities in a proper way.  This transparency enables the electorate to make informed decisions and give properweight to different speakers and messages.

Notwithstanding the Supreme Court’s overwhelming support for disclosure by outside spending groups, flawed FEC regulations and the impact of the Citizens United decision have resulted in massive amounts of secret contributions being spent in federal elections. The DISCLOSE Act would close the gaping disclosure loopholes that have allowed this to happen.

The statement concluded:

If Senators have specific problems with provisions of the Act, they should negotiate with the bill’s sponsors, not stonewall the legislation and continue to keep citizens in the dark about the sources of the huge amounts being spent to influence their votes.

Our organizations strongly urge the Senate to pass the DISCLOSE Act.

To read the statement from reform groups, click here.

Today’s nominations are an encouraging sign from an Administration that has allowed a long-dysfunctional FEC to sink to a new and disgraceful low. Over the last four years the Administration had offered only a single nominee as the terms of every sitting commissioner expired and the Commission, split along party lines, deadlocked on most meaningful matters before it. As a result, abuses of our campaign finance laws have been rampant.

Ann Ravel, is the type of individual the Administration should have nominated years ago if it was serious about seeing the nation’s campaign finance laws enforced. Ravel chairs the California Fair Political Practices Commission, which the FEC would do well to emulate if it hopes to repair its ruined reputation.

Lee E. Goodman has an extensive background in campaign law and the Commission is desperately in need of new blood. We are hopeful that, if confirmed, he will discharge his duties more effectively than the Commissioner he would replace.

We hope that the Senate will act quickly to confirm these nominees and that the FEC will begin again to enforce the laws passed by Congress. Further we hope the Administration will move quickly to put forward nominees to replace the other four commissioners serving expired terms.