On Friday, the Campaign Legal Center, joined by three Connecticut watchdog groups, filed a supplemental amici brief in the U.S. District Court for the District of Connecticut urging the court to reject an attempt by the Democratic Governors Association (DGA) to broaden the scope of its recently filed challenge to Connecticut’s campaign finance laws. DGA initially sought to bar the State Elections Enforcement Commission (SEEC) from considering Connecticut Governor Dannel Malloy’s fundraising activities for the DGA if questions arise as to whether the DGA’s expenditures for Governor Malloy’s reelection were truly independent of his campaign. Now, the DGA seeks to reinvent its case as a broad attack on all of the rules applicable to organizations whose major purpose is election or defeat of candidates in Connecticut.

“It is clear that the Democratic Governors Association’s ultimate goal is to take down a whole range of Connecticut’s post-Citizens United reforms,” said Larry Noble, Of Counsel to the Campaign Legal Center.  “If successful, the activities of organizations, like the DGA, that are actively trying to elect or defeat candidates in Connecticut will move into the shadows. This audacious effort is an affront to the ideals of transparency and good government that Governor Malloy purports to uphold.” 

The DGA’s more aggressive attack on the campaign finance reforms Governor Malloy signed into law last year came in its most recent filings with the court, where it argues that the fact that a group’s purpose is to elect candidates and it spends money in Connecticut elections does not mean it can be required to register as a political committee and abide by Connecticut’s limits, prohibitions and reporting rules. The initial brief filed by the reform groups asked the court to dismiss the DGA suit outright or to deny the motion for a preliminary injunction on grounds that the DGA is unlikely to succeed on the merits of its claims; the supplemental brief filed Friday repeats that request, and urges the Court to refuse DGA’s improper attempts to transform and broaden its claims in the lawsuit. 

Common Cause of Connecticut, Connecticut Citizen Action Group and the League of Women Voters of Connecticut joined in the brief.  Patrick Tomasiewicz, of Fazzano & Tomasiewicz, is serving as Counsel of Record in the filings.

To read the supplemental amici brief filed by the Campaign Legal Center, Common Cause of Connecticut, Connecticut Citizen Action Group and the League of Women Voters of Connecticut (June 6, 2014), click here.

To read the groups’ first amici brief (May 13, 2014), click here.

On June 2, the State of Delaware filed its opening brief with the Third Circuit Court of Appeals, urging the reversal of a lower court decision that preliminarily enjoined Delaware’s disclosure law as applied to a nonprofit group, Delaware Strong Families (DSF). The case, Delaware Strong Families v. Biden, involves a constitutional challenge to Delaware's new electioneering communications law.

“The Supreme Court has repeatedly recognized the vital governmental interest in promoting transparent elections,” said Tara Malloy, Campaign Legal Center Senior Counsel. “Delaware’s disclosure law does just that.”

Lawyers from the law firm WilmerHale and the Campaign Legal Center represent the Defendants, Delaware Attorney General Joseph R. Biden III and Delaware Commissioner of Elections Elaine Manlove.

To read the brief, click here.

Today, in ProtectMarriage.com v. Bowen, the Ninth Circuit rejected a constitutional challenge to disclosure requirements in California’s Political Reform Act that require state ballot measure committees to identify their campaign contributors above a $100 reporting threshold.  The groups that brought the case—which raised and spent tens of millions of dollars in 2008 in support of Proposition 8, a successful statewide ballot initiative that has since been invalidated— sought to overturn these disclosure requirements as unconstitutional, both facially and as applied to them, on the basis of claimed “harassment” directed at their campaign donors.  The Court of Appeals upheld the district court’s determination that the laws are facially valid but did not reach the merits of the as-applied claims, finding instead that the intervening disclosure of the groups’ contributors rendered their appeal non-justifiable.

“Today’s decision deals yet another blow to the coordinated campaign against transparency being waged in courts nationwide.  The groups bringing these challenges across the country have repeatedly tried to equate mere criticism they may have received from their political opponents with the very unique circumstances that have warranted exemption from disclosure laws in past cases,” said Megan McAllen, Campaign Legal Center Associate Counsel.  “This is not the NAACP in the Jim Crow South or even the Socialist Workers Party but simply another group seeking to influence election outcomes anonymously. The courts have repeatedly affirmed that disclosure—in all but the rarest of cases—is a constitutional means to provide voters with vital information about the sources of campaign money and enables them to evaluate the interests seeking to influence their votes.  These dogged attempts to evade constitutionally sound disclosure laws are simply untenable.”

The Campaign Legal Center previously filed an amicus brief in the Court of Appeals supporting California’s disclosure laws and urging the Court to uphold the decision below.  

To read the Legal Center’s brief in ProtectMarriage.com v. Bowen, click here.

Today, the Supreme Court denied certiorari in Free Speech v. FEC, letting stand a decision by the Tenth Circuit Court of Appeals to uphold FEC rules and policies relating to the determination of “political committee” status and, by extension, the registration and reporting requirements applicable to such committees.

On June 25, 2013, the Tenth Circuit sustained the FEC’s “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), which defines this term broadly to capture ads that do not say “vote for” or “vote against” a candidate, but still can “only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”  The Tenth Circuit also approved the FEC’s multi-factor approach for determining when a group has campaign activity as its “major purpose” – an approach that considers not only the group’s spending on “express advocacy,” but also its public and internal documents relating to its central organizing purpose.  Without these measures many groups active in elections could evade the requirement that they fully disclose their spending and donors. 

“We are pleased that the Supreme Court has left undisturbed FEC rules that broadly define what type of groups must provide comprehensive disclosure of their political activities.  Whether the Commission will emerge from its current gridlock to vigorously enforce these rules is a different question, but the decision certainly gives the FEC the green light,” stated Campaign Legal Center Senior Counsel Tara Malloy.  “This ruling also joins many earlier decisions by the High Court holding that a ‘magic words’-style definition of express advocacy does not represent the outer boundary of permissible political disclosure or political committee status.  Instead the Supreme Court has consistently recognized that the public has a right to transparency in connection to a wide range of advertising designed to influence their vote on Election Day.”

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 challenged the regulations in the U.S. District Court for the District of Wyoming.  In October 2012 the district court refused to grant the injunction and in June 2013, the Tenth Circuit Court adopted that decision as its own.  The Campaign Legal Center, joined by Democracy 21, filed comments with the FEC, as well as an amici briefs with both the district court and the Court of Appeals. 

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

On May 16, 2014, the Campaign Legal Center filed in the U.S. Court of Appeals for the Fifth Circuit an opposition to a motion by the organization True the Vote (“TTV”) to expedite its appeal or, in the alternative, to stay the voter ID case in the district court while it pursues its appeal..  On December 11, 2013, TTV was denied intervention as a defendant in the consolidated lawsuits (Veasey v. Perry, No. 2:13-cv-193) challenging Texas’s new voter identification law.  The district court found that TTV did not have a particularized interest that the litigation threatens to impair or impede, and that TTV’s generalized interests in the issues will be adequately represented by the State of Texas. 

“True the Vote wants to assist the State of Texas to defend a voter ID law that was adopted and is being used to harm black and Latino voters,” said J. Gerald Hebert, Executive Director of The Campaign Legal Center.  “But the organization delayed months to try and get their intervention in the case resolved, and now seeks to reward itself for its own failure to act.  Our legal system should not reward such dawdling.” 

On December 20, 2013, TTV filed a notice of appeal from the denial of the motion to intervene. TTV did not, however, file a motion to expedite its appeal or stay the underlying proceedings at that time.  Instead, it waited more than four full months, until May 5, 2014, to file the motion to expedite.  The Legal Center is representing a group of plaintiffs in the TX voter ID lawsuit and its opposition to TTV’s motion noted that TTV: offered no explanation or excuse for this unreasonable delay; failed to file a motion for a stay in the trial court as required by the Federal Rules; and created the “emergency” that it now claims entitles it to expedite the appeal or stay the proceedings below.

The complaint filed by the Campaign Legal Center in the case claims that the voter photo ID law (SB 14) violates the 1st, 14th, 15th and 24th Amendments to the Constitution, as well as Section 2 of Voting Rights Act.  Several challenges (including one brought by the United States) have been brought against the Texas law, which is the one of the most restrictive laws in the nation.  The cases have been consolidated in the Southern District of Texas in Corpus Christi. 

 The Campaign Legal Center is part of the legal team 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 TTV’s motion, click here. 

To read the Campaign Legal Center’s opposition to TTV’s motion, click here.

On May 14, 2014, a three-judge panel of the Seventh Circuit Court of Appeals invalidated or narrowed multiple provisions of Wisconsin’s political disclosure law in Wisconsin Right to Life v. Deininger.

More specifically, the three-judge panel held that Wisconsin’s disclosure requirements could only extend to express advocacy and the functional equivalent of express advocacy, disregarding that the Supreme Court in Citizens United stated unequivocally that it “rejected the contention” that disclosure “must be limited to speech that is the functional equivalent of express advocacy.”  The three-judge panel also struck down Wisconsin’s “PAC-like” disclosure requirements as applied to groups making independent expenditures that did not have express election advocacy as their major purpose.  Both holdings run contrary to a 2012 decision by a different panel of the Seventh Circuit in Center for Individual Freedom v. Madigan, which upheld comparable provisions of Illinois’ campaign finance law.

“The result of this decision is to leave virtually no reporting requirements for independent spending on the books for certain organizations.  A group can pour millions of dollars into advertising in Wisconsin elections without having to make full disclosure to the public, provided that it claims its ‘major purpose’ does not relate to candidate elections,” Legal Center Senior Counsel Tara Malloy stated.  “The reasoning of the decision is also slipshod, selectively distorting parts of controlling Supreme Court precedent, as well as contradicting the recent precedent of its own Circuit.  This panel has apparently forgotten that the High Court has repeatedly found that there is a vital public interest in ensuring that voters receive information about the independent advertising campaigns that bombard them in the election season so that they can make meaningful decisions at the polls.”

To read the amicus brief the Legal Center filed on November 9, 2012, defending the challenged provisions of Wisconsin law, click here.

Last night the Campaign Legal Center, joined by three Connecticut watchdog groups, filed an amici brief in U.S. District Court for the District of Connecticut urging the court to deny a request for preliminary injunction being sought by the Democratic Governors Association (DGA) that would undermine the new campaign finance laws passed by the state in the wake of the Supreme Court’s Citizens United decision.  The DGA seeks to make unlimited “independent” expenditures in support of Connecticut Governor Dannel P. Malloy’s candidacy while at the same time having Governor Malloy fundraise for the DGA – without having to abide by Connecticut’s contribution limits or source prohibitions, and in many cases without disclosure.

Common Cause of Connecticut, Connecticut Citizen Action Group and the League of Women Voters of Connecticut joined in the brief.  Patrick Tomasiewicz, of Fazzano & Tomasiewicz, is serving as Counsel of Record in the filings. 

The DGA is asking the court to declare that certain provisions of the state’s 2013 law cannot constitutionally be applied to a broad range of political activities and to prohibit the state’s Election Enforcement Commission (SEEC) from examining all relevant facts if it is called upon to determine whether any of the DGA’s expenditures have been coordinated with the Malloy campaign and should be treated as contributions.  The DGA sued after the SEEC said that fundraising by a candidate for an organization could be evidence of coordination in some circumstances.  The DGA’s lawsuit claims that this ruling and parts of the 2013 reform law the Governor signed are interfering with its plans to have Governor Malloy raise money for the DGA not subject to the state’s campaign finance laws while it makes unlimited expenditures for ads supporting Governor Malloy’s reelection. 

“The Democratic Governors Association is asking the court for the right to ignore the state’s coordination rules with impunity,” said Larry Noble, Of Counsel to the Campaign Legal Center.  “This challenge is particularly galling in light of the fact that Governor Malloy when he signed the reforms into law last year described the Citizens United decision as a ‘tragic decision’ that ‘reversed years of campaign finance reforms and allowed unlimited private money into politics, empowering the wealthy few at the expense of our democracy.’  If the DGA is successful, it will hobble the ability of the state to determine when outside groups are coordinating with candidates and to prevent the corruption that can arise from that kind of abuse of the democratic process.” 

The brief filed by the reform groups asks the court to dismiss the DGA suit outright or deny the motion for a preliminary injunction on grounds that the DGA is unlikely to succeed on the merits of its claims. 

To read the amici brief filed by the Campaign Legal Center, Common Cause of Connecticut, Connecticut Citizen Action Group and the League of Women Voters of Connecticut (May 13, 2014), click here.

To read the groups' motion to file as amici, (May 13, 2014), click here.

The Campaign Legal Center’s latest Voting Rights Institute training takes place today in Washington, DC. At the session, co-hosted by American Constitution Society, practitioners and law students will be briefed on the skills necessary to enforce voting rights law.  Particular emphasis will be given to litigation to enforce Section 2 of the Voting Rights Act, as well as the Fourteenth and Fifteenth Amendments to the Constitution.  

The half-day training program, taught by some of the most respected voting rights practitioners in the country, will count toward Continuing Legal Education credit (CLE).  Earlier this year, trainings were held in New York City, Columbus, Ohio, and Atlanta, Georgia.

“Voting rights protections in our nation suffered a terrible setback as a result of the Supreme Court’s Shelby County decision last year, but that does not mean we should cede the field to those who would deny any American the right to vote,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center.  “Now, more than ever, we must begin to train new litigators to bring voting rights cases wherever the right to vote is being denied or abridged. In the wake of the Supreme Court’s gutting of the Voting Rights Act, we are seeing more and more efforts by legislatures, city councils and other government officials to burden the right to vote.”  

At the training, noted voting rights experts will provide background on the Voting Rights Act and relevant federal court cases to participants and will then focus on the mechanics of bringing successful voting rights litigation. J. Gerald Hebert, serves as lead instructor and is joined by veteran voting rights litigators and scholars in the field.

In addition to Mr. Hebert, the Institute’s expert faculty will include: Pamela Karlan (Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice), Marcia Johnson-Blanco (Co-Director, Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law), Paul M. Smith and Jessica Amunson (Partners, Jenner & Block), and Julie Fernandes (Senior Policy Analyst, Open Society Foundations).

Financial support from the Rockefeller Brothers Fund (rbf.org), the Wallace Global Fund, and the Mertz Gilmore Foundation for the Voting Rights Institute is gratefully acknowledged.  

To read the full agenda for the training, click here.