In a letter sent today to the House of Representatives, reform groups urged House members to vote no on H.R. 2019, sponsored by Rep. Gregg Harper (R-MS), which purports to provide for a 10-year pediatric research initiative and repeals the presidential public financing system.

The reform groups sending the letter include Americans for Campaign Reform, the Brennan Center for Justice, the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Demos, the League of Women Voters, Public Citizen, and U.S PIRG.   

To read the full letter, click here.

According to the letter from reform groups:

H.R. 2019 would repeal an important anti-corruption campaign finance law which worked well for most of its existence and provided ordinary Americans with a critical role to play in financing presidential elections. The presidential public financing system needs to be repaired, not repealed.

According to the letter:

In the last Congress, Representative Harper introduced H.R. 3463, legislation to reduce federal spending and the deficit by terminating taxpayer financing of presidential election campaigns and party conventions. In this Congress, Representative Harper has introduced H.R. 2019, legislation to eliminate taxpayer financing of presidential campaigns and party conventions and reprogram savings to provide for a 10-year pediatric research initiative.

The two Harper bills vary in their purported approaches, but have the same basic purpose – to repeal a fundamentally important anti-corruption campaign finance law.

According to the letter:
 
In a Dear Colleague sent on July 8, 2013, Representatives Rosa DeLauro (D-CT) and Nita Lowey (D-NY) show that H.R. 2019 would not really do anything to increase spending for pediatric research.
 

Representative DeLauro is Ranking Member on the Labor, Health and Human Services Subcommittee and Representative Lowey is Ranking Member on the House Appropriations Committee.

According to the letter:

According to their Dear Colleague letter:

Even though the $13 million it purports to make available for that purpose is minuscule, relative to current spending or the$1.55 billion lost by NIH to sequestration this year, some Members may nevertheless feel inclined to support the measure on the theory that $13 million is better than nothing. We stand with those who support pediatric research, but the bill would not increase these much needed investments.

According to the letter:

According to their Dear Colleague letter:

[H.R. 2019] does terminate public financing for campaigns, but it does not appropriate the savings for research.  Rather, it specifies that those amounts shall be available to NIH “only to the extent and in such amounts as are provided in advance in appropriation Act”.  In short, the bill makes no appropriations of funds for pediatric research but instead merely authorizes them to be made.

According to the letter:

The Dear Colleague letter pointed out that the Harper bill places thefunds in the normal appropriations process where they are subject to the allocation levels already set by the House for such funds and it does not increase the funds available to be spent.The letter noted:

The reason funding for biomedical research has been decreasing is not because of some shortage of authorizing legislation, and piling on one more unfunded authorization ofappropriations will not interrupt that downward trend even for a moment.

According to the letter:

Presidential candidates long recognized the value of the alternative system for financing their elections. Almost all candidates from both major parties voluntarily used the system to pay for their presidential campaigns from 1976 through 2004. Thereafter, the presidential funding system began to break down because no steps were taken by Congress to update the system.

The 2012 election made clear that the presidential public financing system is essential both to prevent corruption and to provide candidates with an alternative way to finance their campaigns without having to rely on influence-seeking bundlers and donors.

Legislation to restore an effective presidential public financing system, H.R. 270, has been introduced in this Congress by Representatives David Price and Chris Van Hollen.

The letter concluded:

H.R. 2019 is a fig leaf to mask its real purpose. The legislation is not a serious effort to increase funding for pediatric research, but rather the fourth attempt by House Republican leaders, beginning in the last Congress, to kill the presidential public financing system.

This is the real issue House members will be voting on when this legislation reaches the House floor.

The presidential public financing system is necessary to protect citizens against government corruption and to provide presidential candidates with an alternative, citizen-based means to finance their campaigns.

We strongly urge you to vote to preserve an essential anti-corruption campaign finance law by voting against H.R. 2019.

To read the full letter, click here.

Based on the IRS’s announcement last week that it is undertaking a rulemaking proceeding to address the problems arising from campaign activities by 501(c)(4) groups, U.S. Representative Chris Van Hollen, Democracy 21, Public Citizen and the Campaign Legal Center today dismissed without prejudice the lawsuit they filed in federal court to obtain such a rulemaking proceeding.

The lawsuit, filed on August 21, 2013, challenged the failure of the IRS to conduct a rulemaking proceeding to adopt new rules to properly implement the tax law’s eligibility requirements for tax-exempt status as a 501(c)(4) “social welfare” organization.

Under the existing rules, 501(c) organizations spent more than $300 million in the 2012 federal elections, with the great bulk of those campaign expenditures made by 501(c)(4) organizations that kept secret the identity of the donors funding their campaign spending.

Van Hollen and the three organizations will closely monitor the IRS proceedings announced last week. If the agency fails to adopt new regulations to properly implement the tax laws and prevent groups from misusing the laws to obtain 501(c)(4) tax-exempt status, the lawsuit will be filed again.

The lawsuit built on a petition filed with the IRS in July 2011 by Democracy 21 and the Campaign Legal Center urging the agency to undertake a rulemaking proceeding to bring its regulations into compliance with a provision of the Internal Revenue Code requiring 501(c)(4) groups to be devoted “exclusively” to social welfare activities, which do not include campaign activities. 

By regulation, the IRS has said that social welfare groups need only be “primarily” operated for social welfare purposes, a standard that has been interpreted to allow such groups to spend up to 49 percent of their funds on campaign activities.  Because 501(c)(4) groups are  not required to disclose their donors, the IRS regulations have permitted such groups to serve as vehicles to  inject hundreds of millions of dollars from secret contributors into federal elections.

In its announcement last week, the IRS said that its rulemaking proceeding will consider specific changes to the definition of what constitutes “campaign-related activity” by a 501(c)(4) group.  Currently, the IRS uses a “facts and circumstances” test to determine the spending that constitutes campaign activity.

The IRS also said it would consider whether to revoke the regulation challenged in the lawsuit and adopt new regulations to limit how much campaign activity a social welfare organization is permitted to engage in under the tax laws, however campaign activity is defined.

If the IRS rulemaking fails to make clear that a 501(c)(4) group must engage exclusively in “social welfare” activities and thus may not engage in any campaign activity, or, at most, in any more than an insubstantial amount of campaign activity, the rules will not properly implement the statute.

Retaining the current understanding that groups can spend up to 49 percent of their annual expenditures on campaign activity would unlawfully license 501(c)(4) groups to continue to spend huge amounts on campaign activities without disclosure of the donors funding the expenditures.

The Internal Revenue Code did not envision that 501(c)(4) groups would engage in campaign activities. Groups that want the benefit of tax exemption for campaign activities should create organizations under section 527 of the tax laws, which provides tax-exempt status for groups engaging in campaign activities andrequires such groups to disclose their campaign expenditures and the donors financing the spending.

To read the notice of dismissal filed today, click here.

Today, Texas voters who would be adversely impacted by the law, civil rights organizations, elected representatives and a Texas county filed a brief opposing the motion of Texas officials to dismiss the consolidated lawsuits against the state's voter photo ID law.  Several challenges (including one brought by the United States) have been brought against Texas’ voter photo ID 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 brief filed by the Campaign Legal Center, which serves as co-counsel in the case, argues that the parties have standing to bring the case and that their complaint adequately states claims under various provisions of federal law that may proceed.  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 by denying and abridging the right to vote on account of race and language minority status.

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 a copy of the Legal Center’s brief arguing that the motion to dismiss should be denied, click here. 

To read a copy of the State’s brief in support of the motion to dismiss, click here.

 To read the original complaint, click here.

Today, the Tea Party Leadership Fund (TPLF) failed to gain the disclosure exemption it sought from the Federal Election Commission (FEC) when the group’s request garnered the votes of only two Republican Commissioners. The votes on two draft advisory opinions ended in 3-2 deadlocks along party lines with newly sworn-in Republican Vice-Chairman Lee E. Goodman recusing himself.

“It is encouraging that the FEC rejected the outrageous request by the Tea Party Leadership Fund, but it is disappointing that even two Commissioners were willing to go along with the idea that the Tea Party group should be eligible for an exemption originally granted to the imperiled membership of the NAACP in the Jim Crow South,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “Granting such an exemption would have completely ignored the vital public interest, strongly affirmed by the Supreme Court, behind disclosure laws in order to prevent corruption and inform the electorate. Had the justifiably high bar for this exemption been lowered enough to allow the Tea Party Leadership Fund qualify, it is difficult to imagine what political groups would not qualify for the exemption – including the Republican and Democratic National Committees.”

The exemption stems from a 1958 Supreme Court decision prohibiting the state of Alabama from compelling the NAACP to disclose its membership list at a time when members of the civil rights organization faced grave dangers in the Jim Crow South. The exemption has also been extended over the years to small communist and socialist organizations dating back to the Cold War, with the Socialist Workers Party’s exemption being renewed by the FEC earlier this year.

The Campaign Legal Center, joined by Democracy 21, filed comments yesterday on the two draft advisory opinions issued in response to TPLF’s advisory opinion request (AOR 2013-17) seeking a rarely-granted exemption from disclosure laws on the grounds that disclosure “would result in threats, harassment, or reprisals from government officials or private parties.” One draft considered by the FEC would have granted the exemption and the other would not.

To read the comments filed yesterday on the draft opinions, click here.

To read the original comments filed by the Campaign Legal Center and Democracy 21 on October 18, click here.

Today, the Campaign Legal Center, joined by Democracy 21, filed comments on two draft advisory opinions released by the Federal Election Commission (FEC) that will be voted on at the FEC’s public meeting tomorrow. The draft opinions have been issued in response to an advisory opinion request from the Tea Party Leadership Fund (TPLF) (AOR 2013-17), which is seeking a rarely-granted exemption from disclosure laws on the grounds that disclosure “would result in threats, harassment, or reprisals from government officials or private parties.” One draft to be considered by the FEC tomorrow would grant the exemption and the other would not.

The exemption stems from a 1958 Supreme Court decision prohibiting the state of Alabama from compelling the NAACP to disclose its membership list at a time when members of the civil rights organization faced grave dangers in the Jim Crow South. The exemption has also been extended over the years to small communist and socialist organizations dating back to the Cold War, with the Socialist Workers Party’s exemption being renewed by the FEC earlier this year.

“This is not a vulnerable and persecuted organization like the NAACP in the Jim Crow South, but instead a group that is part of a highly organized and well-funded movement that has already seen huge successes in state, local and federal elections,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “This Tea Party group comparing itself to the NAACP of old, whose membership feared for its lives and its livelihoods, would fail the laugh test if their request was not so offensive and so outrageous on its face. The Supreme Court has been repeatedly and abundantly clear in upholding disclosure laws that such laws serve a vital public interest in preventing corruption and informing the electorate. Consequently, the Court has maintained a very high bar for exemption, which this group does not come close to reaching. We sincerely hope that the FEC commissioners see this crass and cynical request for what it is and deny the request.”

On October 18, the Campaign Legal Center and Democracy 21 filed comments with the FEC in response to the Tea Party group’s request, detailing the history of the “threats, harassment, or reprisals” exemption and the reasons why this Tea Party group is not entitled to the exemption. In determining whether a group is entitled to the exemption, courts and the FEC must engage in a balancing test. As the Supreme Court made clear in Buckley v. Valeo, the exemption is only available when the “threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that [the disclosure requirement] cannot be constitutionally applied.”

In the comments filed today, the Campaign Legal Center and Democracy 21 urge the FEC to reject the draft opinion that would grant the exemption to the TPLF, noting that the draft opinion omits entirely half of the relevant legal test—consideration of the public interest in disclosure by Tea Party movement organizations. Unlike the Socialist Workers Party, for example, which has never successfully elected a candidate to public office in a partisan election, the Tea Party has had significant electoral and fundraising success. TPLF itself has raised more than $2.3 million since its creation in 2012. Tea Party movement organizations together have raised and spent tens of millions of dollars, with more than fifty Members of Congress participating in the Tea Party caucus. The public interest in disclosure by such a powerful political faction is compelling.

TPLF presented so-called “evidence” to the FEC consisting of little more than news articles about public and private criticism of the Tea Party movement, IRS scrutiny of Tea Party organizations’ applications for tax-exempt status, and suspicions that the group may have been under surveillance by the Department of Homeland Security and other federal agencies based on, among other things a report advising law enforcement agencies to be on the lookout for “rightwing extremist activity, specifically the white supremacist and militia movements.” It is noteworthy that, despite the fact that TPLF has received more than $2.3 million in contributions, it has not presented evidence of a single instance in which one of its donors was harassed. Given the generality of this so-called “evidence”—it pertains to Tea Party movement organizations, generally, not specifically to TPLF—all other Tea Party organizations would likely be entitled to any exemption granted to TPLF.

When weighed against such meager evidence, the public interest in disclosure by the TPLF clearly outweighs any probability of threats, harassment, or reprisals.

To read the comments filed today on the draft opinions, click here.

To read the original comments filed by the Campaign Legal Center and Democracy 21 on October 18, click here.

In a letter sent today to members of the Senate and House, the Campaign Legal Center and Democracy 21 challenged the claims by disclosure opponents that campaign finance disclosure laws are unconstitutional violations of First Amendment free speech rights.

The letter documented the fact that since the Citizens United decision upholding disclosure laws, courts throughout the country repeatedly have upheld the constitutionality of laws requiring disclosure by outside groups that make expenditures in candidate elections.

“Despite a concerted disinformation campaign by disclosure opponents, there is simply no way to get around the fact that the U.S. Supreme Court has repeatedly upheld disclosure laws by an overwhelming margin,” said Campaign Legal Center President Trevor Potter. “No number of hostile quotes and columns from opponents can obscure the fact that the courts--most recently the Supreme Court in the Citizens United case--have recognized the importance to voters and to our democracy of transparency of the funding of campaign advertising. The courts have held that required disclosure of the sources of money for such campaign ads does not violate the first amendment. It is important that Members understand the courts’ support of disclosure as Congress considers how to tackle the flood of dark money that is being spent against Republicans and Democrats alike by secret political hit squads seeking to dominate the political system without public accountability.”

"Ever since the Citizens United decision, supporters of allowing secret contributions to influence our elections have cloaked their opposition to disclosure in claims of 'First Amendment free speech' rights," said Democracy 21 President Fred Wertheimer. “These claims have no validity and were rejected by the Supreme Court in the Citizens United decision. Since then the “free speech” claims have been overwhelmingly rejected by federal district courts and courts of appeals in numerous cases which have upheld disclosure laws against a concerted legal assault undertaken to strike them down. The Campaign Legal Center and Democracy 21 have filed amicus briefs defending the disclosure laws in many of these cases and the results represent a major legal success story in the courts for campaign finance disclosure laws."

According to the letter sent today:

In the 2010 Citizens United decision, the Supreme Court by an 8 to 1 vote made crystal clear that campaign finance disclosure requirements for groups making expenditures to influence candidate elections are constitutional and provide citizens with necessary information to make voting decisions.

The letter stated:

The Citizens United case involved disclosure of contributions to and expenditures by a nonprofit corporation that did not have a major purpose to influence elections and that was sponsoring communications that referred to candidates, some of which did not contain “express advocacy” or its functional equivalent.

The Supreme Court in Citizens United flatly rejected claims that these disclosure requirements violate First Amendment free speech rights. In doing so, the Court cited its decision in Buckley v. Valeo (1976) which upheld campaign finance disclosure laws on the grounds that they deter corruption and provide voters with information to aid them in evaluating candidates.

The letter said:

Despite the Supreme Court’s 35-year record of consistently upholding campaign finance disclosure laws, opponents have been conducting a nationwide legal assault on the constitutionality of such laws.

Opponents argue that disclosure requirements for groups that make expenditures to influence elections violate First Amendment free speech rights and subject donors to harassment and reprisals. In so doing, they are presenting arguments that the Supreme Court has repeatedly rejected in upholding disclosure requirements.

The letter documented that federal district courts and courts of appeal throughout the country repeatedly have upheld the constitutionality of disclosure laws applicable to outside groups that spend money in candidate elections.

According to the letter:

Since the Citizens United decision, strong disclosure laws applicable to groups making independent expenditures in state candidate elections have been upheld as constitutional in more than 20 cases decided by federal district courts and courts of appeal. This has included decisions by the First, Fourth, Seventh, Ninth and Eleventh U.S. Circuit Courts of Appeal.

The Campaign Legal Center and Democracy 21 have filed amicus briefs in many of these cases defending the disclosure laws.

Only a handful of cases have run counter to this trend and those decisions have mostly been concerned with ballot measure disclosure laws which involve different considerations and where legal precedent is somewhat less clear.

According to the letter:

The Campaign Legal Center and Democracy 21 are aware of only two cases since the Citizens United decision in which laws requiring the disclosure by outside spending groups in candidate elections have been invalidated.

The Tenth Circuit Court of Appeals is the principal outlier and has taken the position that disclosure requirements can extend only to communications containing “express advocacy” and the functional equivalent of “express advocacy,” and to political committees whose major purpose was to influence elections.

In so doing, however, the Tenth Circuit has misinterpreted the Supreme Court ruling in Citizens United. The Supreme Court upheld disclosure requirements for organizations that did not have a major purpose to influence elections and that did not apply to “express advocacy” communications or their functional equivalent.

The letter further stated:

Beyond the more than 20 decisions upholding disclosure laws without qualification, in four additional cases, the courts have upheld basic disclosure requirements while rejecting a narrow aspect of such laws.

For example, the Fourth Circuit upheld most aspects of West Virginia’s disclosure law but found that the state “electioneering communications” disclosure requirement could not include print media, a form of media that is not covered by the Citizens United decision. Similarly, the Eighth Circuit Court of Appeals upheld the state laws in Minnesota and Iowa requiring disclosure by outside spending groups in candidate elections, but rejected some provisions of these laws that extended beyond the parameters of federal disclosure laws.

Overall, however, federal courts at the district, court of appeals and Supreme Court level have overwhelmingly upheld the constitutionality of disclosure laws applicable to groups making independent expenditures in candidate elections.

The letter also noted that “some disclosure opponents also have been creating the misleading impression that courts around the country are rejecting disclosure laws.” According to the letter:

For example, a recent column by George Will (October 30, 2013), said “Brick by brick, judges are dismantling the wall of separation that legislators have built between political activity and the First Amendment’s protections of free speech and association.”

Mr. Will cited for this proposition cases in Mississippi and Alabama that are still working their way through the appeals process. Notably, both cases involve spending in ballot measure campaigns, not candidate campaigns.

Will’s “brick by brick” analysis, furthermore, is wrong and ignores the fact that since the Citizens United decision, the vast majority of federal district courts and courts of appeal throughout the country have been followingCitizens United’s lead to uphold the constitutionality of laws requiring disclosure by outside groups that spend money in candidate elections.

The letter stated:

The reality is that in the nearly three years since the Citizens Uniteddecision, courts throughout the country have repeatedly rejected arguments that disclosure laws applicable to outside groups making expenditures in candidate elections violate First Amendment free speech rights.

Furthermore, although critics often claim that disclosure triggers donor harassment, we are aware of no court decision post-Citizens United that has found that any alleged instances of donor harassment warranted an exemption from the applicable disclosure statute.

The letter concluded:

The repeated rulings by the courts that disclosure requirements are constitutional represent a major legal success story in the courts for campaign finance disclosure laws

The nation, however, is still left with gaping loopholes in federal disclosure laws that have resulted in hundreds of millions of dollars in secret contributions being spent to influence federal elections. These problems must be solved by enacting new disclosure requirements for outside spending groups and by ensuring that existing laws applicable to disclosure are implemented by proper regulations.

We urge you and your colleagues to find a bipartisan path to legislation that closes the disclosure loopholes that are allowing hundreds of millions of dollars of secret contributions to be spent against candidates of both parties. Effective new disclosure requirements are essential to provide voters with the information they need, as the Supreme Court said inCitizens United, to make “informed choices in the political marketplace.”

Federal courts at all levels have made it clear that disclosure laws for outside groups making expenditures in candidate elections are constitutional and do not violate First Amendment free speech rights.

To read the full letter, click here.