Today, the Campaign Legal Center and a coalition of reform groups called on the House Judiciary Committee to pass the bipartisan “Clean Up Government Act of 2011” (H.R. 2572) at a markup tomorrow.  This legislation would restore important tools for federal prosecutors fighting public corruption – specifically revisions to the Honest Services and illegal gratuities statutes – that have gradually been pared away by adverse court decisions.

 The full Judiciary Committee is scheduled to markup H.R. 2572 tomorrow, Thursday December 1 at 10:00 am in Room 2141 Rayburn House Office Building.

“This is legislation is vitally important if prosecutors are to stand any chance of holding public officials accountable for most public corruption,” said Meredith McGehee, Campaign Legal Center Policy Director.  “Most public officials are not foolish enough to jot down a price list for earmarks on a cocktail napkin like former Rep. Randy ‘Duke’ Cunningham (R-CA), but a series of court rulings have stripped prosecutors of important anti-corruption tools other than the bribery statute which requires a quid pro quo.  ”

H.R. 2572 responds to last year’s Supreme Court decision in Skilling v. United States, which eliminated an entire category of deceptive, fraudulent and corrupt conduct from the Honest Services fraud statute.  The “Clean Up Government Act” would restore that statute in line with Court’s direction for more clarity.  In addition, the bill would restore the illegal gratuities statute so that public officials may not accept gifts given because of their governmental position and makes clear public officials who accept private compensation for using their the powers their jobs afford them may now be subject to prosecution.  With this statute significantly compromised by the Court, prosecutors have had their hand weakened and have had to turn to other statutes not as well suited to prosecute public corruption  Companion legislation (S. 401) has already passed out of the Senate Judiciary Committee, sponsored by Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX).

The reform groups sending the letter include: the Campaign Legal Center, Common Cause, Citizens for Responsibility and Ethics in Washington (CREW), Democracy 21, League of Women Voters, Public Campaign, Public Citizen, and U.S. PIRG.

The full text of the letter follows below.

November 30, 2011

Honorable Lamar Smith, Chairman

Honorable John Conyers, Ranking Member

House Committee on the Judiciary

United States House of Representatives

Washington, DC 20510

 Re:  Full Committee Markup of H.R. 2572, the “Clean Up Government Act of 2011

Sent Via Fax

Dear Chairman Smith, Ranking Member Conyers and Members of the Committee:

Today our organizations write to strongly endorse and call for swift committee passage of the “Clean Up Government Act of 2011” (H.R. 2572), which is scheduled for full committee markup on December 1.  Among other things, this legislation will restore important tools for federal prosecutors fighting public corruption – revisions to the Honest Services and illegal gratuities statutes.

Last year’s Supreme Court decision in Skilling v. United States, 130 S. Ct. 2896 (2010), eliminated an entire category of deceptive, fraudulent and corrupt conduct from the scope of what was known as the Honest Services fraud statute (18 U.S.C. § 1346).  For decades, §1346 was available to prosecute public officials who engage in malfeasance, such as undisclosed self-dealing.  Unfortunately, theSkilling decision effectively struck down as unconstitutionally vague the Honest Services language.  Consequently, there remains a gaping hole in the ability of federal prosecutors to address a vast swath of public corruption.  This revised version the honest services statute is constitutionally sound and heeds the Supreme Court’s directive for more clarity and specificity.

The “Clean Up Government Act” addresses the Court’s concerns about vagueness and lack of clarity by borrowing existing language from 18 U.S.C. § 208, a well-established federal conflict-of-interest statute that already applies to the Executive Branch and that has been upheld as constitutionally sound by the Supreme Court[1] and U.S. Court of Appeals for the Fifth Circuit.[2] Notably, under the proposed statute no public official could be prosecuted unless he or sheknowingly conceals, covers up, or fails to disclose material information – which the official already is already required by law or regulation to disclose – with the specific intent to defraud.  Thus as crafted, H.R. 2572 removes the risk that a public official can be convicted for unwitting conflicts of interest or mistakes.

The legislation also revises the illegal gratuities statute which was eviscerated by the Supreme Court in United States v. Sun-Diamond Growers, 526 U.S. 398 (1999).  The bill makes clear that public officials may not accept gifts given because of their governmental positions.  In addition, responding to United States v. Valdes, 475 F.3d 1319 (D.C. Cir. 2007), the bill makes clear government officials who accept private compensation for using the powers their jobs afford them may be subject to criminal prosecution.

Our organizations applaud Rep. James Sensenbrenner (R-WI) and Rep. Mike Quigley (D-IL) for their bipartisan leadership on this issue.  We urge all committee members to support and pass this critically needed reform legislation to ensure that prosecutors have the tools they need to fight public corruption.

Sincerely,

Campaign Legal Center

Common Cause

Citizens for Responsibility and Ethics in Washington (CREW)

Democracy 21

League of Women Voters

Public Campaign

Public Citizen

U.S. PIRG.

The Campaign Legal Center, together with Democracy 21, filed comments today with the Federal Election Commission (FEC), urging the Commission to reject a request from the Super PAC American Crossroads for permission to fully coordinate campaign ads with candidates despite clear laws prohibiting Super PACs from making expenditures coordinated with candidates.

As the comments filed by the Legal Center and Democracy 21 point out, the American Crossroads request (AOR 2011-23) is absurd in light of the laws passed by Congress and upheld by the courts:

“In short, a political committee seeks the Commission’s permission to ‘fully coordinate[]’ ads with candidates, featuring those candidates, echoing the candidates’ campaign slogans, in ads that are ‘thematically similar’ to the candidates’ own campaign ads, for the purpose of improving voters’ ‘perceptions’ of those candidates in the 2012 election—without treating its payments for such ads as coordinated expenditures under federal law.  Just to recite this request is to demonstrate the absurdity of it.”

“American Crossroads’ request is absurd and flies in the face of decades of Supreme Court decisions upholding laws to prevent political corruption,” said Campaign Legal Center FEC Program Director Paul S. Ryan.  “The Supreme Court has long recognized the importance of contribution limits to preventing corruption, and that expenditures coordinated with candidates must be treated as contributions in order to prevent easy circumvention of the limits.  Most recently, inCitizens United, the Court once again explained that ‘prearrangement and coordination’ presents the ‘danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’”

Yet the Super PAC American Crossroads urges the FEC to ignore federal statutes and court decisions and, instead, to pretend that its ads intended to improve voters’ perceptions of candidates in the 2012 election, paid for with unlimited contributions from corporations and wealthy individuals, and fully coordinated with the candidates featured in the ads, nevertheless are not “coordinated communications” under the law.

The FEC has been sued twice since passage of the Bipartisan Campaign Reform Act of 2002, by the law’s principal sponsors in the House of Representatives, for the Commission’s failure to enact adequate coordination rules.  In both cases, the courts have struck down the FEC’s rules and ordered the Commission to rewrite them. 

“A green light from the FEC on this request would be an admission by the agency that its own rule defining ‘coordinated communication’ is invalid and that the Commission had failed yet again to promulgate effective rules in compliance with court orders,” said Ryan.

The Campaign Legal Center took the lead in preparing these comments.

To read the comments, click here.

Today, the Campaign Legal and a group of reform organizations urged President Obama to break the gridlock at the Federal Election Commission by nominating new commissioners and in congressional testimony urged the complete overhaul of the dysfunctional enforcement agency.

“For years the FEC has ignored congressional intent and carved out loopholes in the laws passed by Congress, but has reached a new low and currently presides over a system of its own creation where money laundering has been legalized on a colossal scale,” said Legal Center FEC Program Director Paul S. Ryan.  “The FEC has broken down to the point that if it is to perform its duty to enforce the nation’s campaign finance laws passed by Congress, a housecleaning of commissioners must take place.”

Reform groups held a press conference on Capitol Hill to draw attention to a House Administration Committee’s sham ‘oversight’ hearing today, in which only the commissioners from the agency itself are being called to testify despite repeated requests for a broader spectrum of witnesses.  

In their letter to President Obama the groups urged him to quickly nominate qualified candidates who will enforce the laws on the books.      

In testimony submitted to the committee, the Campaign Legal Center along with Democracy 21 called on Congress to replace the dysfunctional FEC altogether with a differently-structured agency willing and able to enforce the campaign finance laws passed by Congress.

The groups signing the letter to President Obama include the Campaign Legal Center, Common Cause, CREW, Democracy 21, League of Women Voters, Public Citizen and U.S. PIRG.

To read the testimony submitted to the House Administration Committee by the Campaign Legal Center and Democracy 21, click here.

To read the letter sent to President Obama by the reform groups, click here.

Today the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC), urging the Commission to reject an advisory opinion request  submitted by the Constitutional Conservatives Fund PAC (“CCF”), Senator Michael Shumway Lee’s (R-UT) Leadership PAC seeking to fundraise in a manner clearly prohibited by existing law.

Senator Lee’s Leadership PAC asks the Commission (AOR 2011-21) whether it can raise unlimited contributions from corporations, labor unions and individuals to use for “independent expenditures” supporting or opposing other federal candidates.  In other words, Senator Lee’s Leadership PAC asks the FEC if it can fundraise like a Super PAC.

“This is an easy question, which the Commission should answer with an unequivocal no,” said Campaign Legal Center FEC Program Director Paul S. Ryan. 

The “soft money” prohibition of the Bipartisan Campaign Reform Act of 2002 (BCRA) clearly states that a federal candidate or officeholder, or an entity directly or indirectly established, financed, maintained or controlled by a candidate or officeholder, shall not solicit, receive, direct, transfer, or spend funds in connection with a federal election unless the funds are subject to the limitations, prohibitions, and reporting requirements of the law.

“By its own admission,” Ryan said, “CCF is a Leadership PAC established by Senator Lee.  Therefore, it falls squarely within the BCRA soft money ban.  As such, CCF, like Senator Lee himself, may only solicit or receive contributions up to $5000 from individuals and federal PACs, and may not solicit or receive any corporate or union funds.”

“The answer to the Advisory Opinion Request submitted by Senator Mike Lee (R-UT) to the FEC is open and shut:  the federal campaign finance laws clearly and unequivocally prohibit the Leadership PAC of a Member of Congress from soliciting or receiving unlimited contributions,” said Democracy 21 President Fred Wertheimer. “Senator Lee’s Leadership PAC is flatly prohibited by law from raising unlimited contributions and Senator Lee should abandon this effort.”

The heart of the argument made by CCF is that recent court decisions permit federal PACs to accept unlimited contributions from individuals, corporations and unions so long as such contributions are used only for independent expenditures.  But these cases, which gave birth to Super PACs, apply only to PACs that are not established by federal candidates or officeholders.  These cases are inapplicable to CCF, which is established by a federal officeholder.

The FEC has already recognized precisely this distinction earlier this year, when two Super PACs, Majority PAC and House Majority PAC, sought an advisory opinion as to whether federal candidates and officeholders are permitted to solicit unlimited individual, corporate, and union contributions on their behalf.  By a unanimous 6-0 vote, the Commission correctly advised the Super PACs that the BCRA soft money ban was upheld by the Supreme Court in McConnell v. FECand remains valid since it was not disturbed by either Citizens United or SpeechNow.

The Campaign Legal Center and Democracy 21 urged the FEC to reaffirm its opinion that all federal candidates, officeholders and committees they established—including Senator Lee’s Leadership PAC, CCF—are prohibited from raising or spending funds in connection with a federal election unless the funds are subject to the limitations, prohibitions, and reporting requirements of federal law.

The Campaign Legal Center took the lead in preparing these comments.

To read the comments, click here.

Today, the Campaign Legal Center and Democracy 21 filed an amici brief with the U.S. Court of Appeals for the Fourth Circuit in The Real Truth About Obama (RTAO) v. FEC.   This case currently concerns the much-contested “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the FEC’s methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status.

“This appeal is just one of many cases filed nationwide in an attempt to undermine existing disclosure laws and remove any sort of transparency or accountability for those making ‘independent expenditures’ on behalf of candidates,” Legal Center Associate Counsel Tara Malloy stated.  “The unstated goal of these challenges is a system where the sponsors and the candidates know who is buying the television ads, but the public is left completely in the dark.  Were this goal to be achieved, it would represent a grave threat to the overall health of our representative democracy.”

“This lawsuit represents an effort to eliminate campaign finance disclosure requirements that have long been deemed essential to protect against corruption and to provide the public with information they have a basic right to know,” according to Democracy 21 President Fred Wertheimer.  “In our brief, we make clear that the plaintiffs in this case are attacking the constitutionality of campaign finance standards developed by the Supreme Court itself.  The Court of Appeals is bound to follow the law as developed by the Supreme Court and should do so by affirming the lower court decision and ignoring the frivolous claims made by the plaintiffs.”

The Fourth Circuit appeal is the latest stage of the long-running proceedings in RTAO v. FEC.   Originally, RTAO challenged a number of FEC rules, including the rule implementing the electioneering communications funding restriction that was adopted after the Supreme Court’s 2007 decision in Wisconsin Right to Life v. FEC (11 C.F.R. § 114.15).   The district court and Court of Appeals upheld all of the challenged rules in 2008 and 2009.  Subsequent judicial decisions, most notably Citizens United v. FEC, mooted the much of the case, however.  In April 2010, the Supreme Court vacated the 2009 Court of Appeals’ decision, and remanded the case for further consideration in light of Citizens United and “the Solicitor General’s suggestion of mootness.”  Upon remand, the district court again considered and rejected the two remaining claims relating to the “subpart (b)” definition of “expressly advocating” and the FEC’s “major purpose” methodology in June 2011.  The current Fourth Circuit proceedings are the appeal of this decision.

On October 18, 2010, the Legal Center, along with Democracy 21, filed an amici brief with the district court supporting the challenged regulation and policy.  Prior to the remand, the two organizations filed two other amici briefs in the case dating back to 2008.

The Campaign Legal Center took the lead in preparing the brief.

To read the brief filed today, click here.