The Campaign Legal Center and American University’s Washington College of Law will jointly launch a new Voting Rights Law Institute this summer to help train the next generation voting rights litigators.  The four-night Institute will be held June 24 - 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.   The 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.

“Regardless of the Supreme Court’s decision on the Voting Rights Act next month in Shelby County v. Holder, there has never been so great a need for new voting rights litigators and this program is designed to help teach the next generation how to bring and successfully litigate voting rights cases,” said J. Gerald Hebert.  “The Shelby County decision could have a profound impact on the voting rights field, but even if it leaves the Voting Rights Act’s preclearance provisions undisturbed, recent elections have witnessed an unprecedented spike by states to restrict the franchise, especially  in ways that disproportionately impact the racial and language minorities."

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).

Support from the Rockefeller Brothers Fund (rbf.org) for the Voting Rights Institute is anticipated.  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.

The more details that emerge about the conduct of the IRS in regard to applications by groups for 501(c)(4) status, the more clear it becomes that congressional hearings should be held.  The IRS’ Exempt Organizations Division appears to have been overwhelmed by the rapid increase in 501(c)(4)  applications in the last election cycle, and some of its employees were either poorly trained or improperly directed.  Congressional hearings should be held expeditiously in order to determine what went wrong, and to hold those responsible accountable.  The hearings must also examine the wholesale failure of that same Division to enforce the laws concerning political activity by existing 501(c)(4) organizations.  If the initial reports are verified, it is breathtaking that the IRS seems to be harassing mom & pop tea party organizations while ignoring what appear to be blatant abuses of the 501(c)(4) tax status right under its nose by groups pumping tens of millions of dollars into partisan political advertising.

The IRS needs to enforce the laws on the books in a completely nonpartisan manner, but it must enforce the law rather than turning a blind eye to widespread abuses.  This scandal must not be used as an excuse by the IRS to back away from enforcing existing restrictions on political activity by tax exempt 501(c)(4) groups.  Congressional hearings must serve as a reminder to the IRS that maintaining a ‘see no evil, hear no evil, speak no evil’ stance on illegal political activity by tax-exempt groups is completely unacceptable. 

 Congress should consider where a new “bright line” standard is needed to provide clear guidance to both the IRS and tax exempt entities of permissible political activity by “social welfare” organizations, rather than relying on the current multi-part subjective test that has apparently led to widespread political abuse. 

Today, the Campaign Legal Center expressed strong support for Sen. Jon Tester’s (D-MT) and Sen. Thad Cochran’s (R-MS) Senate Campaign Disclosure Parity Act(S. 375), to require electronic filing of campaign finance disclosure reports by Senate candidates, as House and Presidential candidates have done for more than a decade.

Candidates for the U.S. House of Representatives and for the office of President, and nearly all federal political committees, currently file their campaign finance disclosure reports electronically with the FEC.  This data is typically uploaded onto the FEC website for public access within 24 hours.  By contrast Senate filings generally take weeks to become publicly available and the cost of converting them for FEC purposes costs taxpayers hundreds of thousands of dollars annually. 

“Through its insistence on clinging to this time consuming and expensive process of paper-based filing, the U.S. Senate succeeds only in denying voters vital information about who is bankrolling campaigns until after the votes have been counted, but that is precisely the goal of opponents,” said Meredith McGehee, Campaign Legal Center Policy Director. “The U.S. Supreme Court and the majority of the Senate have long recognized the importance of timely disclosure to allow the electorate to make informed decisions at the polls but a small minority of obstructionists has held back progress for too long. It is high time the U.S. Senate moved forward on this and dragged reluctant colleagues into the 21st Century.”

The bill currently has 34 cosponsors, including a number of Republicans. 

To read a PDF of the letter, click here.

Today, the Campaign Legal Center (CLC) joined Citizens for Responsibility and Ethics in Washington (CREW) in filing a complaint with the Federal Election Commission (FEC), asking it to investigate 32 political donors for excessive contributions to federal candidates during the 2012 election cycle. The complaint follows a Huffington Post report revealing these individuals contributed more than the biennial limit of $46,200 to federal candidates during 2011 and 2012, in violation of the Federal Election Campaign Act and FEC regulations.

“For decades the Supreme Court and Congress have recognized contribution limits as a critical means of preventing corruption,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “The FEC should move swiftly to investigate these seemingly blatant violations of federal law.”

“Some campaign finance laws can be confusing, but the contribution limits are black and white,” said CREW Executive Director Melanie Sloan. “Sophisticated donors don’t need legal counsel to tell them doubling, much less tripling, the limit is illegal.”

Some of the overages are so high they seem unlikely to be accidental. For example, Jeffrey Hurt, the president of Diversified Resources, Inc., contributed $144,300 to federal candidates, more than three times the legal limit of $46,200 per election cycle. Following closely behind him is David Wallace, president and CEO of Wallace Electrical Systems, with $127,700, and John Canning, chairman of Madison Dearborn Partners, with $119,400. All contributed nearly exclusively to Republicans. The most significant Democratic over-contributor was trial lawyer Thomas Fay, who donated $97,450.

When confronted about their contributions, some donors claimed they mistakenly failed to attribute a contribution to a spouse. Yet Donald Simms, CEO of United Mining Company, donated $102,300, while his wife, Susan Simms, contributed $91,300. The Simms contributions went to Republican candidates.

The FEC isn’t likely to crack down hard on someone who mistakenly steps just over the contribution limits. Those who deliberately bound across the line, however, may find themselves in the crosshairs of the Department of Justice as knowing and willful violations of campaign finance law are subject to criminal prosecution. Sloan and Ryan agreed, “If the FEC expects anyone to adhere to contribution limits in the future, commissioners have no choice but to hold these donors accountable.”

To read the complaint, click here.

Today, the Campaign Legal Center joined with other reform groups in urging both houses of Congress to pass campaign finance disclosure legislation this year. The letter reminds Congress that more than $300 million in secret contributions were spent in presidential and congressional races in 2012. That total is widely expected to grow exponentially in coming election.

The letter also emphasizes that opponents of disclosure have lost the overwhelming number of cases they have brought to challenge disclosure laws since the Citizens United decision. Those successes in the Supreme Court and the lower courts are outlined in a summary and chart prepared by the Campaign Legal Center that were sent with the letters to Members today.

The organizations signing 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 and Public Citizen.

To view the letter and the summary and chart by the Campaign Legal Center, click here and here.

The Campaign Legal Center joined with other reform groups yesterday in sharply criticizing President Obama’s many failures and broken promises on the campaign finance reform front and urging him to live up to his commitments in his second term. In the letter, the groups reminded the President of his many unfulfilled commitments to reform the nation’s corrupt campaign finance system and emphasized that he and his political operatives are leading the race to the bottom with Organizing for Action a privately-funded outside group functioning as an arm of the Administration.

“We recognize that the critical test for an officeholder is not how an official functions within the boundaries of the flawed campaign finance system that exists, but what the officeholder is prepared to do to fix the system,” the letter states. “You have not met this critical test.” 

The letter asks President Obama to change course in the second half of his presidency and to assume a leadership role in reforming the broken and corrupt campaign finance system through both legislative efforts from and executive actions.

The reform groups included: Americans for Campaign Reform, the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, the League of Women Voters and Public Citizen.

The full text of the letter follows below.

Americans for Campaign Reform | Campaign Legal Center
Citizens for Responsibility and Ethics in Washington (CREW)
Common Cause | Democracy 21 | The League of Women Voters | Public Citizen
 
April 29, 2013
 
The Honorable Barack Obama
President of the United States
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
 
Dear President Obama,  
 
We are writing to express our deep concern about the nation’s corrupt campaign finance system and about your failure, to date, as President to provide meaningful leadership or take effective action to solve this fundamental problem facing our democracy.
 
Our organizations include Americans for Campaign Reform, the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, the League of Women Voters and Public Citizen.
 
We recognize that as President you face many important policy issues and that you need to set priorities for your efforts.
 
This, however, does not justify the fact that for more than four years you have not provided meaningful leadership, or made use of your bully pulpit, to advance the reforms that are essential to repairing the nation’s campaign finance laws. Nor does your need to deal with other policy issues justify your lack of action to address the failure to enforce the campaign finance laws.
 
The absence of your leadership on campaign finance issues has been very damaging to the interests the American people have in honest elections and a government free from corruption. It is inexplicable to us that you have been unwilling to actively work for solutions to political money problems that are attacking the integrity of our democracy and political system.
 
When you first campaigned for President, you had no problems addressing the reforms necessary to repair the campaign finance system.
 
For example, in October 2007 in response to a Midwest Democracy Network questionnaire, you supported public financing for congressional races, stating, “I believe it is imperative that we get big money out of the political process.”
In June 2008, in an op-ed article you published in USA TODAY, you made a public commitment to repair the presidential public financing system. You said at the time that you were “firmly committed to reforming the system as president so that it’s viable in today’s campaign climate.”
During the 2008 presidential campaign, you also recognized the serious problems with the agency responsible for enforcing the nation’s campaign finance laws, stating in response to the questionnaire referred to above, “What the FEC needs most is strong, impartial leadership that will promote integrity in our election system.”   You made a public commitment to “appoint nominees to the Commission who are committed to enforcing our nation’s election laws.”
 
As President, however, you have provided no leadership and have taken no meaningful actions to accomplish these goals.
 
Moreover, actions you have taken have served to undermine the protections in place to guard against the corrupting influence of political money.
 
After initially indicating you would use the public financing system for your 2008 presidential campaign, you walked away from the system and became the first party nominee since President Nixon in 1972 to run a primary and general election presidential campaign solely with private contributions. This action helped cause the demise of the presidential public financing system that had served the nation well for most of its existence.
 
In the 2012 presidential race, while raising unprecedented amounts of small contributions on the Internet, you also raised unprecedented amounts of large contributions and bundled contributions, providing a stark reminder of the importance of restoring the presidential public financing system.
 
We recognize that the critical test for an officeholder is not how an official functions within the boundaries of the flawed campaign finance system that exists, but what the officeholder is prepared to do to fix the system. You have not met this critical test.
 
In addition to walking away from your commitment to repair the presidential public financing system, you have not submitted any nominees for the FEC to the Senate for more than three years. This has occurred despite the fact that four of the Commissioners currently serving on the six-member FEC are lame-duck Commissioners, whose terms have expired and who are ineligible to be reappointed, but who can continue to serve until they are replaced. A fifth lame-duck Commissioner recently resigned and at the end of April the sixth Commissioner will become a lame-duck. This means that as of April 30, there will be five lame-duck Commissioners and one-open seat at the FEC.
 
Meanwhile, it is widely recognized that the FEC is a dysfunctional agency that in recent years has repeatedly refused to properly enforce or interpret the campaign finance laws. As a result, while we have campaign finance laws on the books, the impact of these anti-corruption laws is minimized by the absence of meaningful enforcement. This failure to enforce the laws is its own campaign finance scandal and you have been unwilling to do anything about it.
 
The Internal Revenue Service also has failed to enforce the tax laws against groups that have improperly claimed tax-exempt status as Section 501(c)(4) “social welfare” organizations in order to hide the donors funding their campaign-related activities. We are aware of no steps that your Administration has taken to address these abuses of the tax laws.
 
We recognize that your Administration provided some support for the DISCLOSE Act efforts in Congress, some support for curbs on lobbyists and issued statements opposing Republican efforts to repeal the presidential public financing system. We also recognize that you have challenged the Citizens United decision, stating in your 2010 State of the Union address, “I don’t think the American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities.”
 
Nevertheless, these limited efforts do not translate into providing the presidential leadership and public advocacy necessary to reform a corrupt campaign finance system that distorts all aspects of public policy.
 
Furthermore, you have failed to pursue campaign finance efforts that are within your complete control as President. For example, it is within your executive authority to submit FEC nominees to the Senate to fill the existing vacancies; to issue the Executive Order you initiated, but then dropped that would have required government contractors to disclose their contributions to groups engaged in electioneering activities; and to use the bully pulpit to speak out and educate the public on repairing the campaign finance laws, as you have on a number of other issues.
 
It is also within your control to publicly support the effort to have the Securities and Exchange Commission require public corporations to disclose their campaign activities to their shareholders and the public, and to obtain better disclosure at the Federal Communications Commission regarding campaign ads being run by broadcasters.
 
You have been unwilling to undertake any of these efforts despite your ability to do so under your own authority.
 
Despite the enormous damage done by the Supreme Court decision in the Citizen United case, it is important to recognize there are effective and valuable reforms that can be made to repair the nation’s campaign finance laws. These reforms need your active leadership and your public voice. They include:

• Empowering citizens to counter big money in American politics by matching their small donations with multiple, public matching funds and thereby making their contributions far more important and valuable to candidates and central to financing federal elections;
• Curbing Super PACs and establishing tough rules to prevent coordination between outside spenders and candidates;
• Closing the gaping loopholes in the disclosure laws;
• Creating a real campaign finance enforcement system; and
• Taking steps to directly challenge the Citizens United decision.

Instead of providing leadership and a public voice on these reform battles, however, you have worked this year in the opposite direction.
 
After prohibiting corporate contributions from being used to fund your inauguration in 2009, and after publicly recognizing the dangers posed by corporate money in American politics, you reversed your 2009 policy following re-election to your second and last term as President. According to FEC reports, the corporate funds raised by your Inauguration Committee to pay for your second inauguration included $4.6 million from AT&T, $2.1 million from Microsoft, $1 million from Boeing and $1 million from Chevron.
 
You also played a leading role this year in creating Organizing for Action, an unprecedented, privately-funded group that functions as an arm of your presidency. OFA provides wealthy donors and bundlers with the opportunity to provide very large amounts of money to an organization operating on your behalf and in your name, and thereby the opportunity to obtain undue influence over government decisions. OFA is a big mistake and a dangerous precedent that other federal officeholders are now likely to follow.
 
The Citizens United decision in 2010 made a broken campaign finance system far worse, opening the door for unlimited expenditures of unlimited contributions to exercise undue influence over our elections and exert corrupting influence on government decisions and federal officeholders. It is a national imperative that we repair the nation’s campaign finance laws.
 
We know that campaign finance reform fights are always tough battles. And we know it is difficult to pass legislation in this divided Congress. But we also know, and history shows, that campaign finance reform battles can be won over time if they have strong national leadership that recognizes the enormous stakes involved for the nation. We also know the difficulties of passing legislation have not prevented you from pursuing other difficult battles you consider important.
 
Given the absence of leadership and action on your part, we can only conclude that in your view the scandalous campaign finance system facing the country is not important enough for you to spend political capital on, or take meaningful steps to repair. In taking this approach, thus far, you have failed the citizens of this country on an issue of paramount importance – preventing the corruption of our democracy.
 
We strongly urge you to act now and during the remainder of your second term to provide leadership and a public voice in the pivotal battle to reform the campaign finance laws and protect the American people against the corruption of our democracy. We also strongly urge you to exercise your executive authority to nominate to the FEC and other agencies that deal with campaign activities, individuals who are committed to properly enforcing the laws.
 
Respectfully,
 
Americans for Campaign Reform                                          
Campaign Legal Center                                                         
Citizens for Responsibility and Ethics in Washington          
Common Cause          
Democracy 21
League of Women Voters
Public Citizen

This week more jurisdictions moved forward with bailouts from the preclearance provisions of the Voting Rights Act as the Supreme Court weighs a challenge to the constitutionality of those provisions.  Yesterday, a three-judge court in Washington, DC approved a final consent decree exempting the City of Wheatland, California from the Act’s preclearance provisions.  On the same day, the Justice Department announced that it had reached agreement on a bailout with the city of Falls Church, Virginia (along with the Falls Church City Public School District) and submitted a proposed consent decree for approval to a three-judge court in the U.S. District Court for the District of Columbia.  

The preclearance provisions, known as Section 5 of the Voting Rights Act, are being challenged in Shelby County v. United States, a case currently being weighed by the U.S. Supreme Court.  The covered jurisdictions, including all or parts of sixteen states, are required to seek preclearance before changing any election practice or procedure, such as moving polling locations or altering voting districts.  However, when jurisdictions, like Falls Church, Wheatland and others can demonstrate that they have had a clean record of voting practices over a ten-year period and have taken additional steps to ensure non-discriminatory elections, they are permitted to “bail out” of this preclearance requirement.

In the Shelby County case before the Supreme Court a number of critics of Section 5 argued in briefs that the bailout process was far too arduous and cost-prohibitive.  Beyond Falls Church and Wheatland, the State of New Hampshire bailed out last month and California’s Brown’s Valley Water District also successfully bailed out in January.  In addition to dozens of earlier bailouts, a number of other bailouts are currently awaiting court approval.  

“There has been a parade of successful bailouts and it just keeps going, eviscerating the argument that the process is both too arduous and too expensive,” said Campaign Legal Center Executive Director J. Gerald Hebert, who serves as legal counsel to both Wheatland and Falls Church in his capacity as a solo practitioner.  “These and the many other bailouts also prove that the coverage formula self-tailors, and therefore Section 5 coverage adjusts to current needs required to protect the franchise.  The Voting Rights Act today remains a vital safeguard of every citizen’s right to vote, but the cities of Wheatland and Falls Church, like an ever-growing number of other bailed out state and local governments, have proven that they have maintained stellar voting rights records and no longer require Section 5 coverage.  Still more bailouts are in the currently in the works as the Supreme Court considers the Shelby County case, proving beyond a doubt that the bailout process is neither illusory nor unworkable as its critics claim.”

To read the consent judgment and decree for Wheatland, California, click here.

To read the joint motion to enter consent judgment and decree for Falls Church, Virginia, click here.

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

All of us at the Campaign Legal Center were shocked and deeply saddened to learn of the passing this morning of Bob Edgar, the tireless and dedicated president of Common Cause. Bob brought passion and integrity to all of his many undertakings and his steadfast presence and dedication in the reform community will be sorely missed.  We had the pleasure of working with Bob on a great many initiatives since he took the helm at Common Cause.  We greatly appreciated and admired his ability to remain upbeat and committed to improving our democracy, whether in the face of triumph or setback.  For Bob, a setback like the ill-considered Supreme Court decision in Citizens United could never be used as an excuse to cede the field.  Instead, he chose to use it as a clarion call to safeguard democracy and immediately set about mobilizing for justice.  Our democracy will miss his leadership, but his work will go on.       

We would like to express our condolences to his family and to all of those who worked with Bob at Common Cause. We join them in mourning his passing.

Today, the Campaign Legal Center, joined by Democracy 21, filed comments with the Federal Election Commission urging the agency not to further weaken its already ineffective enforcement of campaign finance laws. In response to a commission notice requesting comment as to whether the FEC is effectively enforcing the Federal Election Campaign Act (FECA), the watchdogs’ response is an emphatic “no.” But the agency goes further and asks for comments as to whether it should further undermine its anemic enforcement process by adopting an officially policy of willfully ignoring publicly available information and legal theories not specifically cited in complaints filed with the agency. The watchdogs warn the FEC that the proposed policy of willful ignorance would only worsen an already ineffective enforcement process.

“The FEC has long been known as a paper tiger among enforcement agencies but it is breathtaking that it would even consider a proposal to defang itself further by doing even less than it is now to enforce the nation’s campaign finance laws,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “We certainly hope the Commission will refrain from adopting this nonsensical proposal to intentionally ignore readily accessible public information and valid legal theories during the enforcement process. It is vitally important that hardworking FEC staff investigators not have their hands tied behind their backs by the political appointees, when it comes to using the few tools at their disposal as they attempt to fulfill the mission of the agency.”

To read the comments filed by the Campaign Legal Center and Democracy 21, click here.

To read the letter referenced in the comments, click here.