Today, the Campaign Legal Center released a white paper examining prospective 2016 presidential candidates raising millions of dollars, while denying that they are even “testing the waters” for a potential run for their Party’s nomination. Why would they deny the obvious? Federal law requires an individual who is “testing the waters” of candidacy to pay for those activities with funds raised in compliance with the candidate contribution restrictions—no individual contributions above $2,700, and no corporate or labor union funds. Nearly every likely presidential contender is ignoring the candidate limits and the Federal Election Commission is doing nothing to stop it.

Written by Campaign Legal Center Senior Counsel Paul S. Ryan, the white paper details the recent political activities of nearly 20 prospective 2016 presidential candidates, the campaign finance laws that many of these prospective candidates are likely violating, and the history of similar evasion and violation going all the way back to Ronald Reagan, who began stretching the boundaries of the Federal Election Campaign Act in 1977, just three years after President Richard Nixon resigned his office in disgrace leading to passage of the Act.

“Testing the waters’ means activity undertaken to determine whether the individual should become a candidate, including, for example, traveling to see if there is sufficient support for one’s candidacy,” said Ryan. “Nearly every prospective 2016 presidential candidate is raising and spending funds outside the candidate contribution limits, through super PACs, leadership PACs and other groups. They’re traveling to Iowa and New Hampshire; they’re hiring campaign staff; one has even opened an office in Iowa. They claim they’re not ‘testing the waters,’ but they look soaking wet to me.”

Ryan continued: “And though Presidents Reagan and George H.W. Bush got away with pushing the ‘testing the waters’ boundaries back in the 1970s and 80s, their boundary-pushing took place prior to the midterm elections and involved limited contributions. Jeb Bush’s reported plan to raise $100 million in unlimited super PAC contributions during the first quarter of this year—after the midterm election, during the 2016 presidential election cycle—is not merely a difference in degree; it is a difference in kind. The flood of unlimited money unleashed by the Supreme Court’s Citizens United decision, coupled with the FEC’s ‘see no evil, hear no evil, speak no evil’ non-enforcement policy, have led to unrestricted bidding in the auction that our presidential campaigns have sadly become.”

To read the executive summary, click here. 

To read the full white paper, click here. 

Yesterday in Baca v. Berry, Campaign Legal Center attorneys, along with attorneys at Jenner & Block, filed a brief in the United States Court of Appeals for the Tenth Circuit responding to the City of Albuquerque’s efforts to obtain financial sanctions against four of its own citizens and their former counsel for filing a voting rights lawsuit.  Legal Center attorneys represent the individual voters, while Jenner & Block attorneys represent the voters’ former counsel. 

The case started when four Albuquerque voters brought claims challenging the city council’s post-2010 redistricting plan.  After the lawsuit was filed, electoral changes were adopted in the City that prompted the plaintiffs to move to dismiss their case without prejudice.  The City moved to dismiss the case with prejudice.   The district judge held both motions in abeyance for several months and then granted the City’s motion to dismiss with prejudice.  The City then successfully obtained an order from the district judge sanctioning the voters’ counsel in the amount of $48,217.95 for pursuing a frivolous case.  The trial court, however, refused to grant the City’s motion to financially sanction the four individual citizens.  The individual plaintiffs’ counsel appealed the sanctions order and the City has appealed the order declining to sanction the individual voters who filed the suit.   The brief filed yesterday responds to the city’s frivolous attempt to extort its own citizens for invoking their right to bring a lawsuit to protect their constitutional and civil rights, and also replies to the city’s defense of the district court’s sanctions order against the plaintiffs’ former counsel. 

“Unless the Tenth Circuit condemns Albuquerque’s transparent attempt to intimidate its own citizens, many future civil rights violations will likely go unchallenged,” said J. Gerald Hebert, Campaign Legal Center Executive Director. “The city’s conduct in this case bears all the hallmarks of a strategic lawsuit to crush civic involvement and full public participation—an attempt by those in power to scare people away from vindicating their civil rights.  If any party should be sanctioned in this case, it’s the city for filing a frivolous and abusive cross-appeal.”

Hebert added: “Jenner & Block attorneys have once again stepped up to protect voting rights and prevent a gross miscarriage of justice.  We are pleased to have had the opportunity to work with them on this case.”  The law firm of Jenner & Block was recruited to work on 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, CLC Senior Counsel Paul S. Ryan testified before the Federal Election Commission regarding a number of issues for possible rulemaking by the agency. Ryan was part of a day-long hearing session held by the FEC to get public comment on issues ranging from earmarking, affiliation, joint fundraising and disclosure.

To view his testimony, click here.

For the written testimony submitted by CLC and Democracy 21 on January 15, 2015, click here.

Today, the National Association of Broadcasters (NAB) voluntarily withdrew its appeal of the Federal Communications Commission’s (FCC’s) requirement to upload its public inspection files online to an FCC database.  The NAB had appealed the 2008 Order imposing the online file requirement, which required television stations to put these files in digital format and make them more readily available online.  The Campaign Legal Center, along with Common Cause and the Benton Foundation, represented by the Institute for Public Representation of Georgetown Law, intervened in support of the FCC.  The case had been held in abeyance as the FCC dealt with petitions for reconsideration and as the broadcasters gauged the impact of the new requirement.

The FCC phased in the requirement.  First, top-four affiliate stations in the top 50 markets had to upload their files beginning in 2012.  Then, the FCC gradually expanded the requirement to all broadcasters in all TV markets last year.  Implementation of the online file has been smooth.

“Requiring broadcasters to put their public file online was a no-brainer,” said Meredith McGehee, Policy Director of the Campaign Legal Center.  “Both its name and its purpose reflect the intention that the file be publicly accessible, but the public virtually never saw them unless they were willing to travel to the station and request the opportunity to review them.  Broadcasters maintain their programming information in digital format, so in fact it was more burdensome for the stations to produce the statutorily required information on paper.”

“Now the FCC should take the next logical steps to require the information to be filed in a standardized, searchable, and sortable database.  Currently, most stations upload ’pdfs’ with no standard format. And further the agency should follow through on its proposed rulemaking to expand the requirements to cable, satellite and radio.”

In December, the FCC issued a Notice of Proposed Rulemaking that would expand the online requirements to cable, satellite and radio.  The rulemaking process was initiated in response to a petition filed last year by the Campaign Legal Center, Common Cause and the Sunlight Foundation, represented by the Institute for Public Representation of Georgetown Law.  The groups encouraged the agency to act expeditiously on the request.

To read the Notice of Proposed Rulemaking, click here.

To read the petition for rulemaking, click here.