Today, on April Fools’ Eve, the Campaign Legal Center, joined by Democracy 21, filed complaints with the Federal Election Commission (FEC) against Jeb Bush, Martin O’Malley, Rick Santorum and Scott Walker claiming reason to believe they are violating federal campaign finance laws.

“These 2016 presidential contenders must take the American people for fools—flying repeatedly to Iowa and New Hampshire to meet with party leaders and voters, hiring campaign staff, and raising millions of dollars from deep-pocketed mega donors, all the while denying that they are even ‘testing the waters’ of a presidential campaign,” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “But federal campaign finance law is no joke and the candidate contribution limits kick in as soon as a person begins raising and spending money to determine whether they’re going to run for office. Bush, O’Malley, Santorum and Walker appear to be violating federal law.”

The four complaints filed today document in detail the political activities of each of these presidential aspirants: traveling extensively to early primary/caucus states, battleground states and fundraising hotspots; building campaign infrastructures; fundraising to pay for these activities and to bankroll a formal presidential campaign. These activities constitute “testing the waters” under federal law and must be paid for with funds raised under the federal candidate contribution limits and restrictions (no more than $2,700 per individual donor, no corporate/union funds). Bush, O’Malley, Santorum and Walker are all raising funds above the $2,700 candidate limit, providing reason to believe they are violating federal law.

The complaints further allege that Bush, Santorum and Walker have actually crossed the threshold to become “candidates” as defined in federal law, by referring to themselves publicly as candidates and/or by amassing campaign funds that will be spent after they formally declare their candidacies. Consequently, they are currently violating candidate registration and reporting requirements, contribution limits and restrictions, as well as federal “soft money” prohibitions.

“Publicly denying that they are candidates does not exempt these presidential hopefuls from federal election laws passed by Congress to keep the White House off the auction block,” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “Jeb Bush is reportedly aiming to raise more than $50 million for his super PAC. Wisconsin Governor Scott Walker has opened an office in Iowa and is raising millions for a political group he created in January. Rick Santorum’s own aide is referring to him as a ‘candidate.’ These individuals are ‘candidates’ under the law.”

The four individuals named in complaints today are not alone in the 2016 field in violating federal campaign finance laws. There are a number of additional White House hopefuls who appear to be in violation of the same campaign finance laws and more complaints will be forthcoming.  So far only Ted Cruz has officially announced his candidacy.  Hillary Clinton, Ben Carson, Lindsey Graham and Jim Webb have acknowledged that they are officially “testing the waters” and appear to be complying with federal law requirements; in the event they chose to run for president, we will examine their first campaign disclosure report to verify compliance with federal law “testing the waters” requirements.

To read the complaint against Jeb Bush, click here.

To read the complaint against Martin O’Malley, click here.

To read the complaint against Rick Santorum, click here.

To read the complaint against Scott Walker, click here.

Today, the Campaign Legal Center joined with other reform groups in urging Members of the House and Senate to co-sponsor the DISCLOSE Act, legislation responding to the unprecedented amounts of anonymously-funded political spending triggered by the Supreme Court’s decision in Citizens United v. FEC.  The bills introduced by Rep. Chris Van Hollen (D-MD) (H.R. 430) and Sen. Sheldon Whitehouse (D-RI) (S. 229) would reveal the contributors behind ‘dark money’ political spending and allow voters to make informed decisions at the polls as the Supreme Court envisioned in its Citizens United ruling.                      

“We are now entering our fourth election cycle since Citizens United and ‘dark money’ spending continues to grow exponentially each cycle as influence is bought and sold behind closed doors in Washington,” said Meredith McGehee, Campaign Legal Center Policy Director.  “Americans deserve to know who is buying special access and influence with their elected representatives.  The DISCLOSE Act will restore some honesty and integrity to the political process and it is long overdue.  Critics have somehow managed to keep straight faces and say this legislation stifles free speech and even gone so far as to liken Karl Rove’s secret billionaires club, Crossroads GPS, to the NAACP in the Jim Crow South which was exempted from revealing its membership rolls for obvious reasons.”

In addition to the Campaign Legal Center, the reform groups signing the letters include the Brennan Center for Justice, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Demos, Issue One, League of Women Voters, People For the American Way, Public Citizen and the Sunlight Foundation.

To read the letter, click here.

Today, the Campaign Legal Center, joined by Democracy 21, Common Cause in Wisconsin and the League of Women Voters of Wisconsin, submitted an amici brief to the Wisconsin Supreme Court, to be filed upon leave of the court, in Three Unnamed Petitioners v. Peterson.  The brief urges the court to find Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups constitutional.  The consolidated case centers around a challenge to a so-called John Doe investigation of alleged illegal coordination between the campaign of Wisconsin Governor Scott Walker and outside groups.  That investigation has been halted until various challenges are resolved.

The court is considering the argument that if coordinated expenditures do not expressly advocate the election or defeat of candidates, then they cannot be subject to regulation or limitation.  The U.S. Supreme Court specifically rejected that 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 been unambiguous in its recognition that expenditures coordinated by outside groups with candidates are little more than ‘disguised contributions’ made to the candidates themselves,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “These coordinated expenditures do not cease to be ‘disguised contributions’ to candidates simply because the audience is not expressly instructed to vote for or against a candidate.  Striking down Wisconsin's restrictions on coordinated spending would in effect strike down contribution limits to candidates altogether.”

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

To read the amici brief filed today by the Campaign Legal Center, Common Cause in Wisconsin Democracy 21 and the League of Women Voters of Wisconsin, click here.

Today, the Campaign Legal Center joined with other reform groups in urging House Members to co-sponsor H.R. 425, the Stop Super PAC-Candidate Coordination Act, introduced in this Congress by Representatives David Price (D-NC) and Chris Van Hollen (D-MD).

The bill would prevent candidates from soliciting contributions for Super PACs and define common-sense coordination standards to prevent the widespread abuse currently occurring not only at the presidential level but at the congressional level as well.  

"Super PACs have eviscerated the contributions limits upheld by the Supreme Court, even under Chief Justice Roberts, to protect against corruption or the appearance of corruption,” said Meredith McGehee, Campaign Legal Center Policy Director.  “That 'protection' is now a farce and a fiction. Corruption and the appearance of corruption are in full swing. Candidates are personally soliciting contributions for Super PACs and those PACs are receiving million dollar checks.  Those writing seven-figure checks expect to be given a return on their investment.  This is a system rigged for the wealthy elite that is corrosive to American democracy and disempowers more than 99% of Americans. This is how oligarchies are run, not vibrant democracies.”

The proposed legislation defines coordination between a candidate campaign and an outside spender like a Super PAC to include the elements establishing the close ties that exist between a candidate and their individual-candidate Super PAC.  The bill would also strengthen the general rules prohibiting coordination between candidates and outside groups by treating as coordinated communications any payments for campaign ads made by any person pursuant to any general or particular understanding, or based on discussions with the candidate or the candidate’s agents about the payments or communications.

The groups signing the letter along with the Campaign Legal Center included the Brennan Center for Justice, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Demos, Issue One, League of Women Voters, People For the American Way, Public Citizen and U.S. PIRG.

To read the full letter, click here. 

Today, the Campaign Legal Center filed an amicus brief in Colorado Republican Party (“CRP”) v. Williams urging the Colorado Court of Appeals to overturn a Colorado District Court ruling that would allow CRP to accept unlimited contributions for a Super PAC it created and controls despite state limits on contributions to party committees.

“The Supreme Court has been very clear that party contribution limits are a valid means of preventing the corruption that can arise when large contributions are made to a political party, regardless of how the party uses that money,” said Megan P. McAllen, Campaign Legal Center Associate Counsel. “The Colorado Republican Party is trying to resurrect the soft-money abuses that plagued the federal campaign finance system for decades and that the Supreme Court found ultimately undermined the contribution limits and prohibitions.”

In 2003 in McConnell v. FEC, the U.S. Supreme Court upheld the federal ban on unlimited “soft money” contributions to political parties in a challenge to the Bipartisan Campaign Reform Act of 2002 (BCRA).  BCRA (commonly referred to as McCain-Feingold) closed a loophole created by the Federal Election Commission that allowed the national party committees to accept unlimited contributions to spend on certain activities.  In McConnell, the Court found that “the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have made all large soft-money contributions to national parties suspect.”

In May 2014, the Colorado Republican Party filed suit against the state seeking an order declaring that its Super PAC, whose officers are appointed as often as annually by the state party chairman, was not subject to the regular limits on what could be contributed to a political party. The State’s Republican Secretary of State and Attorney General chose not to defend the application of the state limits. However, Colorado Ethics Watch joined the suit as an intervenor-defendant in order to argue that the state contribution limits prohibited CRP from accepting unlimited contributions to fund its Super PAC.  In September, the Colorado District Court ruled in favor of CRP, and Colorado Ethics Watch appealed that decision. The Campaign Legal Center filed in support of that appeal.

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

To read the amici brief filed today by the Campaign Legal Center, click here.

Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Independence Institute v. Gessler urging the Tenth Circuit Court of Appeals to affirm a District Court ruling upholding the Colorado Constitution’s “electioneering communications” disclosure provisions.  The state law is materially identical to the federal “electioneering communications” disclosure statute, which was upheld by the U.S. Supreme Court as recently as the 2010 Citizens United decision.  Plaintiff’s challenge to the federal statute (Independence Institute v. Federal Election Commission) was dismissed by the U.S. District Court for the District of Columbia on October 6, 2014, sixteen days before the challenge to the Colorado law was dismissed by the U.S. District Court for the District of Colorado.  The Campaign Legal Center filed amici briefs in both cases.

“From the challenge in Buckley v. Valeo to the Watergate reforms right through to the Roberts Court’s ruling in Citizens United, the U.S. Supreme Court has been unbending in its support for disclosure and in its recognition that the public has a vital interest in knowing the identities of those who are trying to influence their votes,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Independence Institute is asking the court to ignore Supreme Court precedent so that it and others can blanket the airwaves with ‘dark money’ ads in the final weeks before elections without ever revealing the interests bankrolling those ads.  Sadly, this case is just one of many similar challenges to disclosure laws nationwide, but fortunately the courts have been steadfast in upholding these laws.”

Independence Institute wished to run a broadcast ad referring to Governor John Hickenlooper (D-CO) shortly before Election Day without disclosing its donors.  The challenged law requires donor disclosure when groups spend more than $1,000 on “electioneering communications”—defined as certain television, radio and print ads that mention the name of a state candidate within 60 days of a general election or 30 days of a primary election. 

The U.S. Congress enacted the federal “electioneering communications” disclosure law, which is also being challenged by Independence Institute in a different case, to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  Since then, the Supreme Court has twice upheld this law: first in McConnell v. FEC (2003) in a facial challenge, and again in Citizens United v. FEC (2010) in an as-applied challenge.

To read the amici brief filed today by the Campaign Legal Center, Democracy 21 and Public Citizen, click here. 

To read the U.S. District Court for the District of Colorado’s order and final judgment, click here and here.

To read the U.S. District Court for the District of Columbia order dismissing the challenge to the federal statute, click here.