Today, the Campaign Legal Center, together with Democracy 21, filed an amici brief in the U.S. District Court for the District of Columbia to defend the aggregate contribution limits against a challenge brought by the Republican National Committee (RNC) and Shaun McCutcheon.  Despite clear Supreme Court precedent upholding aggregate contribution limits, plaintiffs in McCutcheon v. FEC challenge both the $70,800 aggregate limit on contributions to non-candidate committees and the $46,200 aggregate limit on contributions to candidate committees in a two-year election cycle.

“In the Supreme Court decision in Buckley v. Valeo, the Court explicitly held that an aggregate limit is constitutional, yet this suit asks the court to ignore settled precedent and allow individuals to give seven-figure sums to buy influence in Washington every election cycle,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “To argue that allowing millions of dollars of contributions to candidate and party committees – money that could be funneled back in to the campaigns of particular candidates – would not lead to corruption or the appearance of corruption is laughable.  This suit is yet another baseless challenge in the wave of litigation targeting campaign finance and disclosure laws around the country.”

“The RNC with this lawsuit is attempting to eviscerate the existing federal contribution limits and prohibition on federal officeholders soliciting huge contributions,” said Democracy 21 President Fred Wertheimer. “These provisions were enacted by Congress and upheld as constitutional by the Supreme Court in order to prevent the corruption of federal officeholders and government decisions. Million-dollar contributions solicited by federal officeholders and laundered through political parties to support the officeholders who solicited the money, which the RNC lawsuit would allow, would re-create the system of legalized bribery that Congress has ended with laws upheld by the Supreme Court.”

The Campaign Legal Center, along with Democracy 21, previously filed comments opposing an Advisory Opinion Request (AOR 2012-14) filed by plaintiff McCutcheon with the Federal Election Commission (FEC), in which he asked the agency to permit him to make contributions exceeding the aggregate contribution limits.  McCutcheon filed his current lawsuit after the FEC issued an advisory opinion consistent with the comments filed by the Campaign Legal Center and Democracy 21, which argued that federal campaign finance law prohibited him from making contributions to federal candidates in excess of the aggregate limits in the 2011-2012 election cycle.

To read the brief filed today with the three-judge panel, click here.  

To read the full FEC Advisory Opinion, click here.

Today, the trial concerning a controversial Texas Voter ID law opened before a three judge panel in the federal court in Washington, DC.  Campaign Legal Center Executive Director J. Gerald Hebert is part of the legal team defending against the State of Texas' effort to gain approval of a new photo ID bill in Texas v. Attorney General Eric Holder.  Hebert represents a group of Texas voters who have intervened in the suit on the side of U.S. Department of Justice claiming they will be harmed by the new voter ID bill.

The State of Texas brought the suit after the U.S. Department of Justice determined the new law would harm minority voters and that the state did not prove the absence of racial purpose and did not grant it preclearance under Section 5 of the Voting Rights Act.  Under Section 5, Texas and a number of other jurisdictions with histories of voter discrimination are required to seek the approval of the Justice Department or a federal court in Washington DC in order to make changes to their voting procedures.

The State’s suit also challenges the constitutionality of Section 5 of the Voting Rights Act.  Several jurisdictions have challenged Section 5 in recent years.  Earlier this year the U.S. Court of Appeals for the District of Columbia Circuit upheld Section 5 in a challenge filed by Shelby County, Alabama.

The trial is expected to last five days.

Today, in U.S. v Danielczyk, the U.S. Court of Appeals for the Fourth Circuit reversed a district court decision which had ignored U.S. Supreme Court precedent in order to strike down the century-old federal ban on corporate contributions to candidates and political parties. The Campaign Legal Center and Democracy 21 filed an amici brief in the Fourth Circuit urging the result reached today.

The corporate contribution restriction dates to the Tillman Act of 1907, signed into law by President Teddy Roosevelt in an era marked by political corruption and campaign finance scandals.  The ban on corporate political contributions has been upheld repeatedly by the Supreme Court in the intervening decades, most recently in FEC v Beaumont in 2003.  The May 2011 decision striking down the law, issued by Judge Cacheris of the U.S. District Court of the Eastern District of Virginia, had failed to consider or even cite Beaumont.  When the omission led to widespread criticism, Judge Cacheris ordered a rebriefing of the case, but eventually reaffirmed his earlier decision, essentially disregarding the Beaumontprecedent again.

“We are pleased the Fourth Circuit corrected the gross judicial overreach by the lower court,” said Campaign Legal Center Senior Counsel Tara Malloy.  “InCitizens United and this week in the Montana decision, the Supreme Court may have turned a blind eye toward the potential for corruption, or its appearance, posed by ‘independent expenditures.’  But the Supreme Court and the lower courts have been very clear in affirming the constitutionality of the ban on direct corporate contributions.  The attempt to overturn the corporate contribution ban was an invitation to a return to the blatant political corruption and rampant scandals of the Gilded Age.”

“Today’s decision is a major victory against those who are attempting to use the courts to strike down all of the protections against corruption that are embodied in the nation’s campaign finance laws,” said Democracy 21 President Fred Wertheimer. “While the disastrous Citizens United decision by the Supreme Court struck down the ban against corporate expenditures in campaigns, opponents have been repeatedly unsuccessful in the lower federal courts in their numerous attempts to strike down bans on corporate contributions, campaign finance disclosure laws, and other important campaign finance provisions. Democracy 21 and the Campaign Legal Center are committed to continuing to meet these legal challenges head on in the courts by intervening in cases where necessary and filing amicus briefs. At stake in these legal battles is the fundamental issue of whether laws can be enacted to protect citizens against the corruption of our democracy.”

The case, U.S. v. Danielczyk, was a criminal matter involving numerous allegations of campaign finance violations, including that the defendants illegally directed corporate contributions to Hillary Clinton’s 2008 Presidential campaign.

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

To read the decision, click here.

Today, the U.S. Supreme Court granted certiorari and summarily reversed the Montana State Supreme Court in American Tradition Partnership v. Bullock, striking down Montana’s long-standing corporate expenditure restriction.

Statement of Paul S. Ryan, Senior Counsel:

Unfortunately the only surprise would have been if the Supreme Court had taken the opportunity to revisit its horribly misguided decision in Citizens United.  Clearly the Supreme Court has decided to wash its hands of the disastrous results of its earlier decision.  Apparently the same five Justices who gave us Citizens Unitedare not troubled by the fact that special interests are picking the winners and losers in our federal and state elections.

In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, point out that “technically independent expenditures” can in fact corrupt despite the majority opinion in Citizens United.  The Campaign Legal Center argued this point extensively in its amici brief filed with the court in May.  If anyone truly believes that independent expenditures cannot corrupt they are simply not paying attention.

It is time for action across the street from the Supreme Court in Congress and it is time for President Obama to live up to his promise to bring change to the Federal Election Commission.  In the short term the President must nominate new commissioners to the FEC, which has shown contempt for the laws passed by Congress.  The Commission’s job is to implement and enforce the law, not to write it and enforce it selectively.  Congress must find longer term solutions to this problem, but in the short term it must quit ignoring the will of the people and pass the DISCLOSE Act so that at least citizens will be able to see who or what is trying to buy their vote.

The current situation, wrought by Citizens United, is nothing short of a gross debasement of our democracy and the idea of one citizen, one vote.  In theory the decision is naïve.  In practice it is shameful.

In a letter to President Obama today, the Campaign Legal Center joined with eleven other organizations in criticizing the Administration’s lackluster response to a petition signed by 27,000 Americans calling on the President to appoint new commissioners to the Federal Election Commission (FEC).

“27,000 Americans urged the President to appoint new Commissioners to the FEC and at least attempt to fix a broken agency.  Four months later in response they received a form letter e-mail that says nothing and commits to nothing,” said Meredith McGehee, Campaign Legal Center Policy Director.  “To say the response was underwhelming would be an understatement.  At the end of the day, the petition process looks like a cynical gimmick. ”

The groups signing the letter along with the Legal Center included: Americans for Campaign Reform, Citizens for Responsibility and Ethics in Washington, Common Cause, CREDO Action Network, Democracy 21, League of Women Voters of the U.S., MapLight, Public Campaign, Public Citizen, United Republic and U.S. PIRG

June 19, 2012
 
President Barack Obama
The White House
1600 Pennsylvania Ave., NW
Washington, D.C. 20500
Dear Mr. President:

Our organizations read with great disappointment the White House’s lackluster response to our petition calling on you to nominate new commissioners to the Federal Election Commission (FEC).  We went to great effort to garner the signatures necessary for the White House to respond.  Given Friday’s letter, it is safe to say that the Administration’s response was not just disappointing to us, but undoubtedly let down the over 27,000 Americans who joined our call and signed the petition.

After waiting four months, we found your response – delivered after 5:00 p.m. on a Friday evening – uninspiring and uninformative.  It offered only vague, generic support for enforcement of our nation’s campaign finance laws.  Essentially, this tepid response demonstrates that after nearly four years in office, you do not consider fixing the FEC a priority.   

Your response indicates that "the Obama Administration is committed to nominating highly qualified individuals to lead the FEC."  After three and one half years of your Administration, however, we see little evidence of actual commitment; repeated statements are not a substitute for real action.

We therefore urge you to act immediately to nominate commissioners so that they can be appointed to the FEC at the next congressional recess.  Such recess appointments would allow the FEC to function to protect our democracy in this election year.

As repeatedly shown, the FEC is a dysfunctional agency that consistently refuses to enforce federal campaign finance laws enacted to prevent the corruption of federal officeholders and government decisions.  Five of the six current commissioners are serving despite expired terms, and three openly flaunt their routine refusal to enforce existing campaign finance laws, even where the FEC’s professional staff has called for an investigation.  The FEC deserves commissioners who will faithfully enforce existing campaign finance laws and close existing loopholes.  But the process of nominating new commissioners begins with you.

During your 2008 presidential campaign, you promised to appoint commissioners committed to enforcing our nation’s election laws.  With the exception of one unsuccessful attempt in 2009, however, you have failed to nominate anyone to replace any of the five lame duck commissioners. Our petition offered you an opportunity to remind the FEC that taxpayer dollars will pay the salaries only of federal employees who fulfill their responsibilities.

While reform opponents in Congress certainly are to blame for their stubborn refusal to pass tougher disclosure laws, the national scandal at the FEC is your responsibility to address.  The agency will not change until you exercise your executive branch authority to nominate new commissioners.  Nominating commissioners based on merit and qualifications may well create conflict with congressional leaders accustomed to choosing commissioners themselves.  Given the completely dysfunctional state of the FEC and the enormous damage that has been done to our campaign finance laws, however, this is a fight worth having. 

The effort to remake the FEC and restore the enforcement of our campaign finance laws cannot begin until you nominate new commissioners.  Our coalition and an overwhelming majority of Americans strongly support your taking this important step on the road to reforming the FEC.

Sincerely,

Americans for Campaign Reform
Campaign Legal Center
Citizens for Responsibility and Ethics in Washington
Common Cause
CREDO Action Network
Democracy 21
League of Women Voters of the U.S.
MapLight
Public Campaign
Public Citizen
United Republic
U.S. PIRG

The Federal Election Commission (FEC) was unable to agree that ads proposed by the 501(c)(4) group American Future Fund (AFF), using recordings of President Obama’s voice and the phrases “the White House” and “the Administration,” refer to a “clearly identified candidate” and therefore constitute “electioneering communication” subject to disclosure laws requiring the group to reveal its funders.  The FEC deadlocked on 5 of 8 proposed advertisements submitted in AFF’s Advisory Opinion Request (AOR 2012-19).

“Electioneering communication” is a broadcast ad within a defined pre-election time frame that “refers to a clearly identified candidate for Federal office.”  An FEC regulation defines the phrase “refers to a clearly identified candidate” to mean: “[T]he candidate’s name, nickname, photograph, or drawing appears, or the identity of the candidate is otherwise apparent through an unambiguous reference. . . .”

Referring to the FEC deadlock, Paul S. Ryan, Campaign Legal Center Senior Counsel said: “The FEC should have responded to this question from AFF in much the same way that Washington Nationals rookie phenom Bryce Harper did when he was recently asked an equally preposterous question: ‘That’s a clown question, bro.’” Ryan added:  “AFF is clearly playing games for the sole purpose of hiding their donors from voters.  And the FEC’s three Republican commissioners would be happy to let them get away with it, deliberately undermining laws passed by Congress.”

“The failure of the three Republican commissioners to find that five proposed ads by the American Future Fund are covered by the campaign finance laws is a joke,” said Democracy 21 President Fred Wertheimer.  “The proposed ads by American Future Fund are nothing more than a blatant effort to circumvent the recent federal district court decision that groups that run electioneering communications must to disclose their donors.  The three Republican Commissioners are serving as enablers and trying to help the American Future Fund disregard the campaign finance laws and a federal court decision.”

On May 11, the Campaign Legal Center, together with Democracy 21, filed comments urging the FEC to reject the AFF attempt in its AOR to avoid filing electioneering communications reports and disclosing donors.  AFF had asked the agency whether eight submitted television advertisements would trigger the reporting requirements for electioneering communications.

Seven of AFF’s eight proposed ads identify President Obama without actually using the phrase “President Obama” — instead making repeated references to “the White House,” “the Administration,” or “Obamacare,” displaying images of the White House and in one instance even using a recording of President Obama’s voice.

The three Republican commissioners only broke the deadlock to agree that references to “Obamacare” and “Romneycare” were unambiguous and that identifying a cabinet secretary did not meet the definition.

To read the comments filed by the Legal Center and Democracy 21, click here.

Today, the Campaign Legal Center, along with seventeen other organizations, called on Senate appropriators to stop a House Appropriation subcommittee rider to block funding for a Federal Communications Commission (FCC) regulation that broadcasters post their public political files online.

“The rider on the House Appropriations bill is nothing more than a thinly veiled attempt to deny public access to public information,” said Meredith McGehee, Campaign Legal Center Policy Director.  “The FCC's new rule simply updates for the 21st Century laws that have been on the books for decades.  The Senate should stop this misguided effort in its tracks."

Last week a House Appropriations Subcommittee, on a party-line vote, attached a rider to the FY 2013 Financial Services and General Government Appropriations bill that would withhold funding for the implementation of a FCC regulation requiring broadcasters to post online requests made for political advertising time.  Under a decades-old statute, TV broadcasters must maintain files about requests for political advertising time, which includes information about when the spots aired, the rates charged, and the classes of time purchased.

However, broadcasters and their friends in Congress are fighting to maintain a 20th Century status quo that requires the public to travel to each station to view each and every “public” file to verify that broadcasters are meeting their legal and public interest obligations.  These obligations are ones that the broadcasters freely undertook in exchange for their free use of the publicly-owned airwaves.

The groups signing the letter along with the Legal Center include: Access Humboldt, Americans for Campaign Reform, Center for Creative Voices in Media, Center for Responsive Politics, Common Cause, Common Frequency, Democracy 21, Free Press, Media Action Center, National Alliance for Media Arts & Culture, Norman Lear Center, Annenberg School for Communication and Journalism University of Southern California, OMB Watch, Public Citizen, Sunlight Foundation, Unitarian Universalist Legislative Ministry of Florida, United Church of Christ, Office of Communications, Inc. and Wisconsin Democracy Campaign.

The full text of the letter follows below.

June 13, 2012

 
The Hon. Daniel Inouye                                  The Hon. Thad Cochran
Chair, Appropriations Committee                 Vice Chair, Appropriations Committee
S128-Capitol                                                     S-146A Capitol
Washington, DC  20515                                 Washington DC  20515
 
The Hon. Richard Durbin                               The Hon. Jerry Moran
Chair, Subcommittee on Financial               Ranking Member, Subcommittee on
Services & General Government                   Financial Services & General Government
Dirksen 184                                                       Hart 125
Washington, DC  20515                                 Washington, DC  20515
 
Dear Sirs:
 
We the undersigned organizations strongly urge you to oppose any effort to include language in the FY 2013 Financial Services and General Government Appropriations measure that would block or hinder implementation of the new Federal Communications Commission rule requiring broadcasters to put their political files online.  Such a misguided measure was included as a rider in the companion measure recently passed by the House Subcommittee.
 
The Supreme Court in the Citizens United decision held that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” The Court has specifically addressed the benefits of online access to such information, stating that “[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”
 
To this end, the recent decision by the Federal Communications Commission (FCC) to require television licensees to post the information in their political file on the FCC’s website furthers these goals by increasing the availability and transparency of the political interests using the public airwaves to persuade the American electorate. It also brings broadcast recordkeeping practices into the 21st Century.
 
Because of the importance of these political records we are disappointed that the broadcast industry – which stands to make over $3 billion in political ads this election cycle – is actively opposing this important transparency initiative.
 
Broadcasters' complaints that the new rules are burdensome are misguided, if not nonsensical. The FCC has not required any new records or additional information collection from television broadcasters. It is simply requiring that broadcasters replace their existing paper records with electronic ones, a transition that will ultimately be more efficient and cost effective for broadcasters. Television stations already keep the vast majority of these records in electronic form, and currently must download and print out any such documents and organize them in their paper political files. In fact, the new online file rules actually diminish the recordkeeping burden on television broadcasters.
 
Likewise, broadcaster claims that political file information is proprietary are also unfounded. The laws that have been on the books for decades make clear that Congress intended the information in the political file – which includes requests for and purchases of political ads – to be made publicly available. Thus, the transition to an online public file will ensure that members of the public can enjoy fuller and more meaningful access to the broadcast records they already have a right to view.  That some broadcasters would in essence attempt to make it as difficult as possible for the public to access these records is inconsistent with their duties as licensees and trustees of the public airwaves.
 
The broadcast industry’s efforts to block what is otherwise a non-controversial, administrative procedure should be rejected. We urge Committee Members to oppose all efforts to place a rider on any appropriations measure that would delay or weaken the FCC’s common sense update of a regulation that moves television stations’ political files online.
 
Sincerely,
 
Access Humboldt
Americans for Campaign Reform
Campaign Legal Center
Center for Creative Voices in Media
Center for Responsive Politics
Common Cause
Common Frequency
Democracy 21
Free Press
Media Action Center
National Alliance for Media Arts & Culture
Norman Lear Center, Annenberg School for Communication and Journalism
University of Southern California
OMB Watch
Public Citizen
Sunlight Foundation
Unitarian Universalist Legislative Ministry of Florida
United Church of Christ, Office of Communications, Inc.
Wisconsin Democracy Campaign
 
cc:        Full Senate Appropriations Committee