The U.S. House of Representatives today threw all but the wealthiest voters under the bus.  Less than two months after an election where Members promised voters the world, the House betrayed voters by passing an omnibus spending bill littered with perks for special interests and gutting contribution limits.  Even more disappointing, President Obama actively lobbied for a bill that contains provisions diametrically opposed to the values he espoused when running for President.

The backroom deal in the Omnibus Appropriations bill eviscerates important campaign finance limits and puts Members of Congress in the business of directly soliciting a wealthy donor for more than $1.5 million (more than $3 million for a couple) per election cycle.  It is both the solicitation by the Member and the corresponding contributions that are corrupting and/or create the appearance of corruption.  One need look no further than the special-interest perks in this spending bill to know that money buys favors in Washington.

Those who claim that these provisions increase transparency are pulling the equivalent of a ball fake.  They neglect to mention that the dark money will continue to flow.  These provisions simply allow Members of Congress to raise even more money from the wealthiest of Americans while supposedly “independent” dark money groups will continue to run hundreds of millions of dollars of attack ads. 

The bill will also further empower the K Street crowd.  Those wealthy Americans who wish to purchase access and influence with Washington decision-makers will turn to the K Street experts to help them navigate the system and ensure that both the “giver” and the “guide” get the political credit that is so valuable in Washington.

Experience has shown that money – especially party money – is fungible.  While the contributions solicited for the new building, recount and convention accounts will be disclosed, where this money ends up can be very difficult to track given weak spending disclosure rules.

That President Obama intends to sign this monster of a bill is a kick in the gut to those who believed him when he repeatedly expressed concern about the role of big money in politics.  The Administration statement that conveys its objection to the campaign finance language is little comfort.  After all, this is a President who once castigated the Supreme Court for its Citizens United decision in his State of the Union address.  If President Obama does indeed sign the Cromnibus, this gutting of meaningful contribution limits will be on his watch – with his signature.  The man who came to the White House promising “hope and change” should not be rubber-stamping a bill legalizing graft and corruption.

This backroom deal represents everything Americans detest about Washington and about Congress.  Rather than pass legislation to fix the corrupt existing campaign finance system, this Congress that couldn't pass a bill to simply increase transparency for campaign contributions decided to raise the price for its attentions.  The price for seat at the table in Washington just went up again and even further out of reach for all but the very richest of Americans.  

Both parties are complicit this dirty deal that was made based on incumbents' fears of money from outside groups.  But rather than act on bills to address the ills resulting from the Citizens United decision, like improved disclosure and transparency and tighter coordination rules, this Congress is apparently more interested in looking after their own selfish interests.  The new increased caps on contributions to the parties represent nothing more than a rent increase for K street lobbyists who organize and direct the flow of money from those Americans with the deepest pockets.  But for most Americans this deal signals an increasingly out-of-touch legislative branch that has lost interest in the best interest of it constituency. 

Today, attorneys who had represented Latino voters in an Albuquerque voting rights case, Baca v. Berry, filed their opening brief in the U.S. Court of Appeals for the Tenth Circuit, challenging a District Court order imposing sanctions on them for unduly prolonging court proceedings after they had already moved to dismiss the case.  The voters originally brought the case to challenge the City of Albuquerque’s redistricting plan for city council districts.  After the case was brought, Albuquerque voters passed a referendum that altered the way the city council is elected.  In light of this change in the law, the voters sought to dismiss their suit without prejudice, which would have allowed them to bring another lawsuit if the new voting law failed to fix problems with the map. But the city sought to have the case dismissed with prejudice, which would have prevented plaintiffs from filing another challenge. The judge declined to dismiss the case, instead putting it on hold until the results of several upcoming city council elections were known.  Subsequently the judge dismissed the case with prejudice and granted the city’s motion to sanction plaintiffs’ attorneys for prolonging the case, ordering them to pay $48,000.  The attorneys are appealing, and the city is also appealing, seeking additional monetary sanctions against the voters who brought the case. 

“The District Court’s decision was outrageous in itself but if it is not overturned, its impact will be disastrous for voting rights in the country because voters will afraid to turn to the courts to fight vote suppression efforts for fear of sanctions,” said J. Gerald Hebert, Campaign Legal Center Executive Director.  “For Albuquerque City officials to seek sanctions for a delay ordered by the court is bad enough, but to seek to intimidate voters with gratuitous monetary sanctions for trying to protect their right to vote is unconscionable.  To attempt to make citizens fear their recourse to the courts is government intimidation at its worst.  This case threatens to turn back the clock on voting rights in this country.”      

The Campaign Legal Center is representing the plaintiff voters in the city’s appeal and the law firm of Jenner and Block is representing the plaintiffs’ attorneys in their appeal. Today’s brief is filed by Jenner on behalf of the attorneys. The Campaign Legal Center will file a brief in February challenging the city’s pursuit of monetary sanctions against the individual voters.

“We are grateful for the involvement of the excellent attorneys at Jenner and Block in taking on this important case,” said Hebert.  “Jenner's legal team was recruited for this case by the Voting Rights Institute, a joint program launched earlier this year by the Campaign Legal Center and the American Constitution Society.”

To read the brief, click here.

Today, attorneys at the Campaign Legal Center, who serve as co-counsel for plaintiffs Congressman Marc Veasey and LULAC, filed a motion to expedite a pending appeal in the Fifth Circuit Court of Appeals in Veasey v. Perry—the challenge to Texas’ overly restrictive photo ID law (SB 14). 

“This motion to expedite the appeal seeks to minimize the damage that SB 14 continues to cause,” said J. Gerald Hebert, Executive Director of The Campaign Legal Center.  “Despite successfully overturning the law, eligible Texas voters already lost one election to disenfranchisement and they should not lose another.  Unless the Fifth Circuit acts quickly, hundreds of thousands of validly registered Texas voters will be forced again to pay a poll tax and abide by an intentionally discriminatory law if they want to exercise their right to vote in the upcoming 2015 elections.”

The Veasey-LULAC plaintiffs’ motion to expedite the appeal noted that the next Texas elections are scheduled for May 2015.  The motion asked the court of appeals to resolve this appeal as promptly as possible in order to ensure that a constitutional system of voter identification is implemented for upcoming elections.  The motion further urged the court of appeals to hold oral argument at the earliest possible date following completion of briefing, and offered to abbreviate the briefing schedule if doing so would help the court of appeals expedite the appeal. 

The first challenge to the Texas photo ID law was filed by the Campaign Legal Center in the summer of 2013 claiming that SB 14 violates the 1st, 14th, 15th and 24th Amendments to the Constitution, as well as Section 2 of the Voting Rights Act.  Several challenges (including one brought by the United States) were then brought against the Texas law, which is one of the most restrictive laws in the nation.  All of the cases were consolidated in the Southern District of Texas in Corpus Christi. Following a two-week trial earlier this fall, U.S. District Court Judge Nelva Gonzales Ramos enjoined SB 14 as an unconstitutional burden on the right to vote, finding that it had “an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.”  Further, Judge Ramos held that the law constituted an “unconstitutional poll tax.”  The defendants, including the state of Texas, immediately appealed Judge Ramos’ decision. In mid-October, the Fifth Circuit Court of Appeals stayed that decision and the U.S. Supreme Court subsequently refused to vacate the Fifth Circuit’s stay, thus permitting Texas to impose the unconstitutional voter photo ID law in the recent November 2014 general election. 

The Campaign Legal Center is part of the legal team representing the Veasey-LULAC plaintiffs that includes Chad Dunn and K. Scott Brazil (Brazil & Dunn), Neil G. Baron, David Richards (Richards, Rodriguez & Skeith), Armand Derfner (Derfner, Altman & Wilborn), Luis Roberto Vera, Jr. (LULAC) and Craig M. Wilkins and Teresa G. Snelson (Dallas County District Attorney’s Office).

To read the motion to expedite, click here. 

Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Rocky Mountain Gun Owners v. Gessler,urging theU.S. District Court for the District of Colorado to reject a challenge to the Colorado Constitution’s “electioneering communications” disclosure provisions and deny a preliminary injunction.  The state law is materially identical to the federal “electioneering communications” disclosure statute, which has been repeatedly upheld by the U.S. Supreme Court, most recently in the 2010 Citizens United decision. 

Last month, in Independence Institute v. Gessler, the same Colorado district court dismissed a challenge to the same provisions of Colorado law as they applied to broadcast advertisements.  The Campaign Legal Center, joined by Democracy 21 and Public Citizen, also filed an amici brief in that case in defense of the law.

“As this court recognized in Independence Institute, the U.S. Supreme Court has been unwavering in its support for this type of disclosure, and has consistently recognized that voters have a vital informational interest in knowing who is speaking about candidates shortly before an election,” said Megan P. McAllen, Campaign Legal Center Associate Counsel.  “Disclosure laws are under siege in lawsuits from coast to coast, but the courts have stood firm in upholding these laws against challenges from ‘dark money’ groups seeking to influence the electorate while remaining anonymous to the voting public.”

In June 2014, plaintiffs Rocky Mountain Gun Owners and Colorado Campaign for Life sent mailers to Colorado voters without making required disclosures.  The mailers referred to candidates for office in Colorado and were sent within 30 days of the primary election at a cost of more than $1,000.  They were thus “electioneering communications” subject to the modest disclosure requirements under Colorado law that plaintiffs now challenge as unconstitutionally overbroad.

The Colorado provisions closely track the federal “electioneering communications” disclosure law, which Congress enacted in 2002 to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  The U.S. Supreme Court has twice upheld this law: first in a facial challenge in McConnell v. FEC (2003), and more recently in an as-applied challenge in Citizens United v. FEC (2010).

The Legal Center was assisted in the filing of the amici brief by Steven K. Imig of Lewis, Bess, Williams & Weese P.C.

To read the brief filed today, click here. 

Today in Van Hollen v. FEC, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia held that a Federal Election Commission (FEC) rule improperly narrowed the scope of the McCain-Feingold law’s disclosure requirements and allowed nonprofit 501(c)(4) advocacy groups, 501(c)(6) business associations, and others to spend millions on “electioneering communications” without disclosing their donors.

The suit was brought by Representative Chris Van Hollen (D-MD) in an effort to ensure that the “dark money” outside groups that have become increasingly active in federal elections are required to disclose their donors to the public.  The Campaign Legal Center is part of the legal team representing Rep. Van Hollen in this case, which is led by Roger Witten of WilmerHale and also includes lawyers from WilmerHale, Democracy 21 and Public Citizen. 

“The loophole opened by the FEC gutted the law passed by Congress and encouraged widespread abuse in the form of hundreds of millions of dollars of undisclosed ‘dark money’ ads,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “Neither Supreme Court precedent nor the underlying statute provided any justification for the FEC to adopt a rule narrowing disclosure.”

In a 46-page opinion, Judge Amy Berman Jackson deemed the rule promulgated by the FEC “arbitrary, capricious, and contrary to law” and an “unreasonable interpretation” of the McCain-Feingold law.  

On March 30, 2012, the district court ruled in favor of Rep. Van Hollen, holding that the FEC regulation was contrary to the clear language of the federal campaign finance statue it purported to implement.  On September 18, 2012, however, the D.C. Circuit Court of Appeals overturned the lower court decision, disagreeing that the federal statute was clear and holding that the district court should have instead analyzed whether the rule was a reasonable interpretation of the statute under a more deferential mode of judicial review.  The case was remanded back to the district court.

To read the opinion issued today, click here.

The Campaign Legal Center is pleased to announce that Charles Fried is joining the organization’s board of directors. Prof. Fried served as Solicitor General of the United States under President Ronald Reagan, and as an Associate Justice of the Supreme Judicial Court of Massachusetts. He currently is the Beneficial Professor of Law at Harvard Law School, where he first taught in 1961.

Professor Fried has a longstanding interest in the area of campaign finance and has served as counsel to amici in several recent U.S. Supreme Court cases in the field. He co-chaired with Legal Center President Trevor Potter the American Bar Association Task Force on Lobbying and Ethics Reform, which examined the political fundraising activities of lobbyists.

“The Campaign a Legal Center is honored and fortunate to have Charles Fried join our Board,” said Trevor Potter, President of the Campaign Legal Center. “He is a nationally known and respected Republican lawyer and scholar. His views on the importance of improving the current state of our campaign finance practices, and the fact that this can be done in ways fully consistent with the First Amendment, will be of enormous assistance to us as we litigate these issues in the courts."

During his career at Harvard Professor Fried has continued to argue a number of major cases in state and federal courts. He has taught Criminal Law, Commercial Law, Roman Law, Torts, Contracts, Labor Law, Constitutional Law and Federal Courts, Appellate and Supreme Court Advocacy. Professor Fried is the author of more than 30 journal articles and nine books. He holds degrees from Princeton, Oxford and Columbia and has authored Saying What the Law Is: The Constitution in the Supreme Court (2004), Modern Liberty (2006) and numerous other books and legal articles.

To read Mr. Fried's website biography, click here.

Today, in Justice v. Hosemann, the United States Court of Appeals for the Fifth Circuit reversed a trial court ruling that had struck down several Mississippi disclosure requirements as applied to certain individuals and groups engaged in ballot measure advocacy.  The Campaign Legal Center had filed an amicus brief and later a supplemental letter brief in the case urging this result. 

“We are pleased to see the Circuit Court adhere to established Supreme Court precedent that recognizes the vital public interest in disclosing the identities of those funding efforts to influence elections—including ballot initiatives,” said Tara Malloy, Legal Center Senior Counsel.  “Ignoring precedent, the district court had improperly discounted the state’s interests, disproportionately emphasized the plaintiffs’ burdens, and failed to pay any deference to the legislators elected by the people of Mississippi.” 

The District Court had invalidated Mississippi’s requirement that groups register as political committees upon receiving or spending in excess of $200 to support or oppose a constitutional ballot measure as applied to plaintiffs.  It also invalidated a parallel provision that required individuals spending over $200 to influence ballot measures to file disclosure reports.   

In today’s decision, the Fifth Circuit Court of Appeals found that the plaintiffs’ attempt to bring an as-applied challenge failed because they failed to present any concrete facts supporting such a challenge.  Because the Court rejected the as-applied challenge, it treated the plaintiffs’ constitutional challenge as a facial one.  It then rejected plaintiffs’ arguments that Mississippi’s disclosure requirement should be subject to strict scrutiny, and instead followed the approach of other sister circuits in applying the lesser but still meaningful standard of “exacting scrutiny.”  This legal point was precisely the one advocated by the Campaign Legal Center in its amicus brief.  Applying this lesser level of exacting scrutiny, the Court of Appeals found that Mississippi’s disclosure requirements were substantially related to the state’s informational interest in informing Mississippi voters of “who is lobbying for their vote.”

To read the Fifth Circuit Court’s opinion, click here.

To read the supplemental letter brief filed by the Campaign Legal Center on August 22, click here.

To read the original brief filed by the Campaign Legal Center on March 4, click here.