Today, the Campaign Legal Center, joined by Democracy 21, filed comments in response to a Federal Election Commission (FEC) Advisory Opinion Request (AOR) 2013-17 from the Tea Party Leadership Fund, an FEC-registered political committee, seeking an exemption from the federal law requirement that it disclose its donors based on its claim that doing so “would result in threats, harassment, or reprisals from government officials or private parties.”

Such exemptions are extremely rare. The precedent was set by 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 southern states. The exemption has also been extended over the years to communist and socialist organizations dating back to the Cold War.

The “evidence” presented to the FEC by the Tea Party Leadership Fund consists of little more than 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, for example, on a report advising law enforcement agencies to be on the lookout for “rightwing extremist activity, specifically the white supremacist and militia movements.”

“To compare public criticisms of the Tea Party with the tragic bombings, killings, beatings and cross burnings suffered by members of the NAACP in the Jim Crow South is simply disgraceful and shows a complete lack of respect for the dangers and sufferings of the civil rights movement,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “If a stack of press clippings showing politicians criticizing the actions of the Tea Party movement were to be deemed sufficient for this exemption, then by extension any group could qualify, from mom and pop organizations all the way up to the national Democratic and Republican parties. The Supreme Court has been unwavering for decades in finding by overwhelming margins that the constitutional standard for such an exemption is extremely narrow. As Justice Scalia wrote in a 2010 ‘[r]equiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.’”

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

Today, the Campaign Legal Center filed in support of the State Bar of Michigan’s request that the State properly enforce Michigan Campaign Finance Act (MCFA) disclosure requirements in judicial elections. In comments filed in the proceeding, the Legal Center urged Michigan Secretary of State Ruth Johnson to reverse an erroneous 2004 interpretation of MCFA by her predecessor that significantly undermined the State disclosure provisions and led to rapid rise in undisclosed political spending in the state.

“The ruling issued in 2004 misinterpreted Supreme Court decisions and effectively gutted the state’s disclosure provisions by narrowing them beyond effectiveness to disastrous effect in the state, particularly with regard to judicial elections,” said Campaign Legal Center Senior Counsel Paul S. Ryan. “The U.S. Supreme Court has been very clear in its decisions, both before and after the 2004 Michigan ruling, that disclosure laws advance the compelling government interest in providing voters with information regarding those spending money to influence voting decisions.”

Michigan campaign finance statutes require disclosure of expenditures for political ads that “support or oppose” candidates in order to capture sham issue ads attacking or supporting candidates and not just those expressly advocating the election or defeat of candidates using phrases like “vote for” and “vote against.” The 2004 interpretation by the Michigan Secretary of State’s office incorrectly advises that only express advocacy could be covered, despite the U.S. Supreme Court decision in McConnell v. FEC ruling that the statutory “support or oppose” standard is constitutionally permissible.

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

Ideological and interest group opponents of campaign finance regulation continue to flood the courts with cases challenging campaign finance laws at the federal, state and municipal levels.  McCutcheon v. FEC, a challenge to the federal aggregate contribution limits, will be argued before the U.S. Supreme Court this Term, with still more cases on the way up through the lower courts. At the same time, attempts to enact racially-discriminatory voting laws at the state level has generated a spike in voting rights cases, a situation exacerbated by the Supreme Court’s recent decision to strike down a key provision of the Voting Rights Act in Shelby County v. Holder. The Legal Center has released an updated summary of that litigation to facilitate the tracking of the long list of cases.

In 2013, reform opponents continue their attempt to extend the reasoning of the Supreme Court’s decision in Citizens United v. FEC to challenge a broad range of campaign finance laws. 

In particular, anti-reform litigators have won Supreme Court review in McCutcheon v. FEC, a challenge to the aggregate limits on contributions to federal candidates, parties and political committees.  A three-judge court in Washington D.C. upheld the aggregate limits in September 2012, and the High Court noted probable jurisdiction in February 2013.  The plaintiffs not only challenge the aggregate limits, but also ask the Supreme Court to reconsider its long-standing position articulated in Buckley v. Valeo that contribution limits are less burdensome than expenditure limits and therefore warrant “less rigorous” review. The McCutcheon case thus threatens to be the “next Citizens United”—another radical decision by the Supreme Court to reverse decades of its own precedents. Oral argument is scheduled for October 8, 2013.

By contrast, political disclosure laws remain a target but have largely withstood attack. The First, Fourth, Seventh, Ninth, Tenth and Eleventh Circuits have all upheld strong disclosure laws applicable to independent spending following Citizens United.  In 2013, the Tenth Circuit upheld the broad federal regulatory definition of “express advocacy” (Free Speech v. FEC), and the Fourth Circuit upheld a number of West Virginia’s disclosure provisions, including a requirement that groups funding electioneering communications disclose all donors, and not simply donations “earmarked” for electioneering communications (Center for Individual Freedom v. Tennant).  Further, the Supreme Court in January 2013 declined to grant certiorari in Real Truth About Abortion, a Fourth Circuit decision sustaining multiple federal rules governing disclosure, suggesting that the High Court is not eager to undercut strong political disclosure.

In the sphere of voting rights, the Supreme Court in its June 2013 Shelby County ruling struck down the formula used to determine which states and localities would be covered under the Voting Rights Act’s “preclearance” requirement, holding the coverage formula unconstitutional in light of “current conditions.” Since then, voting rights cases have continued to multiply, albeit under the more difficult standards of the Act’s remaining provisions—notably, the Court left intact Section 2, which blocks discriminatory voting rules nationwide, as well as Section 3, which allows courts to impose preclearance requirements on (or “bail in”) particular jurisdictions found to have discriminated against voters. Now, the Act’s future may be decided by a handful of new and ongoing Texas cases brought under these provisions, including two Justice Department attempts to re-impose federal oversight of voting changes through Section 3’s “bail in” mechanism (Perry v. Perez and United States v. Texas).

The Legal Center’s litigation summary attests to the enormous number of active legal cases concerning campaign finance and voting rights and underscores the need to remain vigilant in tracking and participating in litigation in 2013 and coming years.

To read the Legal Center’s updated litigation summary, click here. 

The most recent update of the litigation summary is always available on the Legal Center website’s Court Case of Interest page between the active cases and past cases.

This semester, Georgetown University law students will have the opportunity for hands-on legal work on pending election law and voting rights cases through a practicum course for credit.  The election law class will be co-taught by Paul M. Smith, the Chair of Jenner & Block’s Appellate and Supreme Court Practice, and J. Gerald Hebert, the Campaign Legal Center’s Executive Director and Director of Litigation.

The course will review campaign finance regulation and voting rights law and provide students with opportunities to draft legal memoranda and briefs in pending cases, as well as proposed legislative fixes, at a time when voting rights and campaign finance reforms across the country are facing new challenges.

“This course allows students to get real world experience in pending campaign finance and voting rights cases,” said J. Gerald Hebert of the Legal Center.  “This is a busy and challenging time in the wake of major Supreme Court decisions that have severely undermined voting rights and campaign finance reforms.”  

The semester-long course consists of a weekly two-hour seminar and ten-hours of supervised work per week.