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.

Yesterday, the Campaign Legal Center, Common Cause and the Sunlight Foundation filed a complaint at the Federal Communications Commission (FCC) alleging violations of long-standing rules and law by WLS, an ABC broadcast television station in Chicago, IL.  WLS is owned by ABC, a subsidiary of The Walt Disney Company.  The complaint notes that WLS refused to disclose the "true identity" of the sponsor of political ads being run by Independence USA PAC, even after the watchdog groups alerted the station to its violations and identified the PAC’s sole sponsor as former New York City Mayor Michael Bloomberg.

“WLS undertook no effort to identify the ad’s true sponsor, despite being warned of its violations and being informed that Michael Bloomberg was the sole backer of Independence PAC,” said Meredith McGehee, Campaign Legal Center Policy Director.  “This is a knowing and willful violation of the law, but more importantly failure to identify the true sponsor of the ad does a grave disservice to WLS viewers. They were left completely in the dark as to the fact that Michael Bloomberg, hiding behind a deceptively named organization, was spending large sums of money to influence their votes and the outcome of the election.  If WLS is not willing to reveal the man behind the curtain, then we certainly hope the FCC will enforce long standing statutes and compel the station to do so in future.”  

The Communications Act and the FCC’s sponsorship identification rules require broadcasters to go beyond simply naming the entity that paid for an ad.  In this case, Independence USA is essentially a personal advertising arm for Mr. Bloomberg, and the station failed to fully and fairly inform the public about who was attempting to influence them.  Under the Communications Act, broadcasters are required to “exercise reasonable diligence” to obtain the information needed for proper sponsorship identification. 

The complaint requests the FCC to declare that, for its failure to include the true identity of the sponsor of the ad, WLS is not in compliance with Section 317 of the Communications Act and 47 CFR Section 73.1212.  If a violation is found, the FCC can assess a forfeiture for WLS's willful noncompliance with the law and grant other relief at its discretion.

To read the complaint, click here.

The Campaign Legal Center (CLC) welcomes Joshua Bone as its 2014-15 Campaign Legal Center Legal Fellow.  Mr. Bone is the third Fellow to hold the one-year position designed for recent law school graduates interested in issues relating to campaign finance, voting rights and other election law issues.  The Campaign Legal Center gratefully acknowledges the financial support of the Bernard & Audre Rapoport Foundation for providing the funding support for CLC to launch its Legal Fellow program in  2012.

“We are very pleased to welcome Josh to the Campaign Legal Center where he hit the ground running in terms of his contributions to ongoing litigation,” said Legal Center Executive Director J. Gerald Hebert.  “Our Legal Fellows have proven an incredibly valuable asset to CLC’s litigation team and Josh has shown he is continuing that tradition from his first day where he has provided invaluable assistance in our case challenging the unconstitutional Texas photo ID law.”

Prior to joining the Campaign Legal Center, Mr. Bone clerked for Judge David S. Tatel on the United States Court of Appeals for the District of Columbia Circuit.

Mr. Bone is a 2013 graduate of Yale Law School. He holds a B.A. in History and Political Science from Yale University.

Today, the Campaign Legal Center submitted an amicus brief to the U.S. District Court for the Eastern District of Wisconsin, to be filed upon leave of the court, in Citizens for Responsible Government Advocates (CRG) v. Barland.  The brief urges the court to reject CRG’s motion to enjoin Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups.The court has already entered a temporary restraining order blocking enforcement of the law.

CRG wishes to make communications in coordination with three candidates for office in the state, including materials lauding “their backgrounds, their efforts to become politically involved, and their work to further fiscal responsibility in government.”  CRG argues that if it does not expressly advocate the election or defeat of these candidates in its communications, it should be free to coordinate such communications with the candidates without limitation.  But the U.S. Supreme Court specifically rejected this argument in McConnell v. FEC, holding that “there is no reason why Congress may not treat coordinated disbursements for electioneering communications,” i.e., a form of non-express advocacy, “in the same way it treats all other coordinated expenditures.”

“The Supreme Court has long recognized that expenditures coordinated by outside groups with candidates are tantamount to ‘disguised contributions’ made to the candidates themselves,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The value of a coordinated expenditure as a contribution to a candidate is not eliminated simply by the omission of words of express advocacy.  CRG asks the court to ignore Supreme Court precedent, as well as common sense, to strike down Wisconsin’s restrictions on coordinated spending and allow candidates to direct without limit any communications by outside groups that do not constitute express advocacy.  Candidate contribution limits would become meaningless if this type of coordination were to be sanctioned.”

The Legal Center was assisted in the filing of the amicus brief by Lester A. Pines and Susan Crawford of Cullen Weston Pines & Bach LLP.

To read the brief, click here. 

On Wednesday night, in Public Citizen v. FEC, reform groups filed a reply brief in the U.S. District Court for the District of Columbia reiterating a request that the court declare the FEC’s dismissal of a complaint against the secretive 501(c)(4) political group Crossroads GPS contrary to law, and arbitrary and capricious.

The lawsuit stemmed from the FEC’s failure to investigate a complaint that Crossroads GPS violated the law in refusing to register as a political committee in 2010. The FEC Office of General Counsel had strongly recommended that the agency investigate the matter because Crossroads GPS spent $20.8 million on federal campaign activity between June and December 2010 – more than half of what Crossroads GPS reported spending the entire year. The Commission deadlocked 3-3 along party lines, resulting in the dismissal of the complaint. The three Commissioners refusing to investigate the matter argued that only those ads that constitute express advocacy bear on whether Crossroads GPS should disclose as a federal political committee, and the FEC’s lawyers in this case demanded that the Court pay deference to the views of these three Commissioners.

“Despite the laundry list of arguments the FEC now makes in attempting to get this case dismissed, this case is about three Republican FEC Commissioners ignoring the advice of their own General Counsel and failing to come up with any reasonable explanation for their refusal to initiate an investigation,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “The violations of the law by Crossroads GPS outlined in the complaint are clear cut and have continued unchecked since the FEC’s deadlock. Further the refusal of the Republican FEC Commissioners to enforce the laws has encouraged other ‘dark money’ groups to follow suit and to spend millions of dollars to buy election results without revealing the monied interests financing their spending. The FEC is clearly unwilling to enforce the law but we hope this court will compel the agency to do its job.”

“This case is simply about whether the FEC will enforce the law, or whether it will permit thinly veiled legal shenanigans to make a mockery of agency rules – a kind of ‘legal laundering’ for otherwise impermissible ‘dark money’ operations,” said Robert Weissman, president of Public Citizen.

The lawsuit was brought by the parties to the 2010 complaint: Public Citizen; Craig Holman, campaign finance expert for Public Citizen; ProtectOurElections.org; and Kevin Zeese of ProtectOurElections.org. The Campaign Legal Center and Public Citizen are handling the legal work on the case as co-counsel for the parties.

The groups contend that Crossroads GPS – an organization created by Republican strategists Karl Rove and Ed Gillespie to influence the 2010 midterm elections – fits the legal definition of a political committee: any group that receives or spends more than $1,000 during a calendar year to influence elections and whose major purpose is federal campaign activity. Political committees must disclose information about their donors and expenditures. The FEC’s refusal to investigate Crossroads GPS for failing to register as a political committee has allowed the organization to continue to keep its donors secret for the last three election cycles.

To read the reply brief filed with the court, click here.

To read the original motion for summary judgment, click here.

To read the original FEC complaint, click here.

To read the statement by the Democratic Commissioners of the FEC, click here.

To read the FEC General Counsel’s recommendation, click here.