The Campaign Legal Center (CLC) welcomes Joshua Bone as its 2014-15 Campaign Legal Center Legal Fellow.  Mr. Bone is the third Fellow to hold the one-year position designed for recent law school graduates interested in issues relating to campaign finance, voting rights and other election law issues.  The Campaign Legal Center gratefully acknowledges the financial support of the Bernard & Audre Rapoport Foundation for providing the funding support for CLC to launch its Legal Fellow program in  2012.

“We are very pleased to welcome Josh to the Campaign Legal Center where he hit the ground running in terms of his contributions to ongoing litigation,” said Legal Center Executive Director J. Gerald Hebert.  “Our Legal Fellows have proven an incredibly valuable asset to CLC’s litigation team and Josh has shown he is continuing that tradition from his first day where he has provided invaluable assistance in our case challenging the unconstitutional Texas photo ID law.”

Prior to joining the Campaign Legal Center, Mr. Bone clerked for Judge David S. Tatel on the United States Court of Appeals for the District of Columbia Circuit.

Mr. Bone is a 2013 graduate of Yale Law School. He holds a B.A. in History and Political Science from Yale University.

Today, the Campaign Legal Center submitted an amicus brief to the U.S. District Court for the Eastern District of Wisconsin, to be filed upon leave of the court, in Citizens for Responsible Government Advocates (CRG) v. Barland.  The brief urges the court to reject CRG’s motion to enjoin Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups.The court has already entered a temporary restraining order blocking enforcement of the law.

CRG wishes to make communications in coordination with three candidates for office in the state, including materials lauding “their backgrounds, their efforts to become politically involved, and their work to further fiscal responsibility in government.”  CRG argues that if it does not expressly advocate the election or defeat of these candidates in its communications, it should be free to coordinate such communications with the candidates without limitation.  But the U.S. Supreme Court specifically rejected this 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 long recognized that expenditures coordinated by outside groups with candidates are tantamount to ‘disguised contributions’ made to the candidates themselves,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The value of a coordinated expenditure as a contribution to a candidate is not eliminated simply by the omission of words of express advocacy.  CRG asks the court to ignore Supreme Court precedent, as well as common sense, to strike down Wisconsin’s restrictions on coordinated spending and allow candidates to direct without limit any communications by outside groups that do not constitute express advocacy.  Candidate contribution limits would become meaningless if this type of coordination were to be sanctioned.”

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

To read the brief, click here. 

On Wednesday night, in Public Citizen v. FEC, reform groups filed a reply brief in the U.S. District Court for the District of Columbia reiterating a request that the court declare the FEC’s dismissal of a complaint against the secretive 501(c)(4) political group Crossroads GPS contrary to law, and arbitrary and capricious.

The lawsuit stemmed from the FEC’s failure to investigate a complaint that Crossroads GPS violated the law in refusing to register as a political committee in 2010. The FEC Office of General Counsel had strongly recommended that the agency investigate the matter because Crossroads GPS spent $20.8 million on federal campaign activity between June and December 2010 – more than half of what Crossroads GPS reported spending the entire year. The Commission deadlocked 3-3 along party lines, resulting in the dismissal of the complaint. The three Commissioners refusing to investigate the matter argued that only those ads that constitute express advocacy bear on whether Crossroads GPS should disclose as a federal political committee, and the FEC’s lawyers in this case demanded that the Court pay deference to the views of these three Commissioners.

“Despite the laundry list of arguments the FEC now makes in attempting to get this case dismissed, this case is about three Republican FEC Commissioners ignoring the advice of their own General Counsel and failing to come up with any reasonable explanation for their refusal to initiate an investigation,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “The violations of the law by Crossroads GPS outlined in the complaint are clear cut and have continued unchecked since the FEC’s deadlock. Further the refusal of the Republican FEC Commissioners to enforce the laws has encouraged other ‘dark money’ groups to follow suit and to spend millions of dollars to buy election results without revealing the monied interests financing their spending. The FEC is clearly unwilling to enforce the law but we hope this court will compel the agency to do its job.”

“This case is simply about whether the FEC will enforce the law, or whether it will permit thinly veiled legal shenanigans to make a mockery of agency rules – a kind of ‘legal laundering’ for otherwise impermissible ‘dark money’ operations,” said Robert Weissman, president of Public Citizen.

The lawsuit was brought by the parties to the 2010 complaint: Public Citizen; Craig Holman, campaign finance expert for Public Citizen; ProtectOurElections.org; and Kevin Zeese of ProtectOurElections.org. The Campaign Legal Center and Public Citizen are handling the legal work on the case as co-counsel for the parties.

The groups contend that Crossroads GPS – an organization created by Republican strategists Karl Rove and Ed Gillespie to influence the 2010 midterm elections – fits the legal definition of a political committee: any group that receives or spends more than $1,000 during a calendar year to influence elections and whose major purpose is federal campaign activity. Political committees must disclose information about their donors and expenditures. The FEC’s refusal to investigate Crossroads GPS for failing to register as a political committee has allowed the organization to continue to keep its donors secret for the last three election cycles.

To read the reply brief filed with the court, click here.

To read the original motion for summary judgment, click here.

To read the original FEC complaint, click here.

To read the statement by the Democratic Commissioners of the FEC, click here.

To read the FEC General Counsel’s recommendation, click here.

The Campaign Legal Center is pleased to announce that Roger Witten is joining the organization’s board of directors.  Mr. Witten is Senior Counsel at WilmerHale where he co-chaired the litigation department for a number of years.

In the area of campaign finance, Mr. Witten has been involved in several of the landmark cases dating back to Buckley v. Valeo, the challenge to the post-Watergate reforms. He also led the legal team representing the Congressional sponsors in the litigation over the McCain Feingold law (McConnell v. FEC).

“We have been fortunate enough to work with Roger in many pivotal campaign finance cases over the years, including McConnell v. FEC, and we are honored that he has agreed to join our board to help chart our future course as an institution,” said Trevor Potter, President of the Campaign Legal Center.  “Roger’s work in campaign finance dates back to his days as a Watergate prosecutor and he brings an incredible wealth of knowledge and experience to our board.”

“I have worked with Campaign Legal Center attorneys for years so I know firsthand the important and effective work they undertake to protect the public's interest on issues dealing with campaign finance, redistricting, and government ethics,” said Mr. Witten. “I am excited to join the board and look forward to working with colleagues at the Campaign Legal Center to further support the Center's work at a time when common sense campaign finance and voting rights laws are threatened across the country.”

Mr. Witten chaired the Twentieth Century Fund Working Group on Campaign Finance Litigation, which published a report entitled Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform (1998). He served as Chairman of the Election Law Committee of the Section of Administrative Law and Regulatory Practice of the American Bar Association from 1988 to 1990.

Over the course of his career, Mr. Witten has received numerous honors and awards for his legal work and has been recognized by several publications as one of the top attorneys in complex commercial and anti-corruption litigation. 

Mr. Witten served as Assistant Special Prosecutor of the Watergate Special Prosecution Force in 1973 and 1974. He is a graduate of Dartmouth College and Harvard Law School. 

To read Mr. Witten's website biography, click here. 

Today, in Independence Institute v. Gessler, the U.S. District Court for the District of Colorado dismissed a challenge to the “electioneering communications” disclosure provisions enshrined in Colorado’s state constitution.  The state measure is materially indistinguishable from the federal “electioneering communications” disclosure statute which was upheld by the U.S. Supreme Court as recently as the 2010 Citizens United decision.  On September 25, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief to defend Colorado’s law.

“Independence Institute asked the court to ignore Supreme Court precedent and permit it to conceal the ‘dark money’ donors underwriting its ad campaign on the eve of an election,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Supreme Court, by overwhelming 8-1 margins, has twice upheld a federal disclosure law nearly identical to Colorado’s.  We are pleased Judge Jackson acted quickly and decisively in rejecting this outrageous suit, which is just one of a flood of legal challenges to disclosure laws across the country.”

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.

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

Click to read the court’s order and final judgment.

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

This evening, the Campaign Legal Center, Common Cause and the Sunlight Foundation filed a complaint at the Federal Communications Commission (FCC) alleging violations of long-standing rules and law by WJLA, an ABC-affiliated broadcast station in Washington, D.C.  The complaint notes that WJLA continues to refuse to disclose the "true identity" of the sponsor of political ads being run by NextGen Climate Action Committee and asks for expedited action given that Election Day is just a few weeks away.

“Despite being warned that it was in violation of the law, WJLA continues to ignore the requirements to disclose on-air the ‘true identity’ of the funders of the political ads that the station is running.  The FCC must hold this station accountable for these knowing and wilful violations,” said Meredith McGehee, Campaign Legal Center Policy Director.  “WJLA is more than happy to receive top dollar to air these ads, but they do a great disservice to their viewers by refusing to reveal the donor behind them when his name is readily available and has even been provided to them by our organizations.  This is not ‘seven on your side;’ it’s ‘seven on the billionaires side.’” 

The groups filed a similar complaint earlier this month noting that WJLA was running ads with the on-air sponsorship disclaimer identifying the sponsor as "NextGen Climate Action Committee."  As the earlier "application for review" pointed out, substantial evidence showed that Tom Steyer has provided almost all of the funding for this organization, yet he was not identified on-air as the true sponsor of the commercials.

The Media Bureau of the FCC dismissed the October 2 complaint by saying that the groups had not shown that WJLA necessarily knew that Tom Steyer was the true sponsor and that the groups should have approached the station directly to furnish it with evidence calling the identity of the true sponsor into question.

Today's new complaint notes that WJLA filed an opposition in response to the earlier complaint and thus demonstrated its awareness that Tom Steyer provided, and continues to provide, substantially all of NextGen's funding.  Today's complaint requests the FCC to declare that, for its failure to include the true identity of the sponsor of the ad, WJLA is not in compliance with Section 317 of the Communications Act and 47 CFR Section 73.1212.  If a violation is found, the FCC can assess a forfeiture for WJLA's willful noncompliance with the law and grant other relief at its discretion.

To read the complaint, click here.

This morning, in Veasey v. Perry, the U.S. Supreme Court refused to stop a Texas photo voter ID (SB 14) law from being used in the upcoming election, despite the fact that one week earlier a U.S. District Court ruled the law unconstitutionally racially discriminatory and a poll tax.  The U.S. Court of Appeals for the Fifth Circuit had subsequently stayed that ruling, leaving SB 14 in effect due to concerns that striking down the law now would disturb the upcoming election. The Campaign Legal Center is part of the legal team representing voters and elected officials adversely impacted by the law, and has argued that permitting the photo ID law to remain in effect will cause more confusion for voters and election officials.

“Today’s inaction by the Supreme Court is a bitter disappointment and a travesty of justice for hundreds of thousands of validly registered Texas voters who will be unable to exercise their right to vote in the November elections,” said J. Gerald Hebert, Executive Director of The Campaign Legal Center.  “It is appalling that the Supreme Court could not muster five votes to protect the rights of all Texas registered voters to cast ballots on Election Day, especially since a lower court, after a year of factual discovery and a two week trial, had found the law intentionally racially discriminatory and deemed it a ‘poll tax.’  The conservative majority on the High Court mistakenly decreed in Shelby County that racially discriminatory voting practices were rare, but to the extent such discrimination continued, victims of such discrimination could obtain injunctive relief.  That was a false promise to the American people.”

Justice Ginsburg issued a scathing dissent criticizing the court’s failure to protect the rights of Texas voters:

“The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”

On Wednesday, Texas voters and elected officials had filed an emergency application with the Supreme Court to vacate the appeals court stay.  The application emphasized that the Court of Appeals misapplied Supreme Court precedent on “voter confusion” and stressed that the confusion would actually be far greater if the law is in effect for the coming election.  Sworn declarations from county election officials in Texas making this point accompanied the emergency application.  Yesterday, the voters filed a reply brief taking exception with the arguments in opposition made by the State of Texas.

The first challenge to the law was filed by the Campaign Legal Center in the summer of 2013 claiming 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) were then brought against the Texas law, which was one of the most restrictive laws in the nation.  All of the cases were 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 the order of the Court, click here.

To read the reply brief filed in response to the State of Texas’ brief, click here.

To read today’s emergency application for a stay, click here.

To read the Fifth Circuit Court’s opinion granting a stay pending appeal, click here.

To read the Legal Center's Brief in Opposition to the Emergency Motion to Stay Final Judgment Pending Appeal (October 12, 2014), click here.

To read the opinion of the District Court, click here.