Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Wagner v. FEC opposing an effort to overturn the 70-year-old ban on campaign contributions by federal contractors. The case is currently on appeal to the U.S. Court of Appeals for the District of Columbia after a federal district court upheld the ban in November of 2012.

“Government contracting is particularly susceptible to the pay-to-play system that prevails anywhere government contracts are handed out. This federal ban is a crucial check against the widespread scandals that have sent government officials to jail in cities and states across the country,” said Tara Malloy, Campaign Legal Center Senior Counsel. “Only the naïve or disingenuous will pretend that money does not change hands in order to buy influence and favor with those who write government checks, from Sacramento to Tallahassee and everywhere in between. The courts have long recognized the inherent susceptibility of the government contracting process and have repeatedly upheld this law and similar laws passed in states and municipalities nationwide. The plaintiffs ask the court to ignore those rulings and the reality of government contracting.”

This restriction on campaign contributions from persons and entities contracting with the federal government was enacted in 1940 to address corruption in federal contracting in the wake of persistent scandals, most notably the “Democratic campaign book” scandal.

In November 2012, the district court granted summary judgment in favor of the FEC, finding that the law was enacted to “prevent corruption and the appearance thereof and, in so doing, to protect the integrity of the electoral system by ensuring that federal contracts were awarded based on merit.” The Campaign Legal Center and Democracy 21 filed a brief in the district court defending the constitutionality of the government contractor ban and in support of the FEC’s motion for summary judgment.

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

To read the District Court opinion granting summary judgment, click here.

Today, the Supreme Court declined to hear a challenge to the century-old federal ban on corporate contributions to candidates and political parties in U.S. v Danielczyk.   Despite a clearly activist and deregulatory bent on campaign finance matters under Chief Justice John Roberts, the High Court let stand a circuit court decision upholding the ban.

“We are pleased the Court chose not to revisit the century-old corporate contribution ban, which is an important bulwark against use of the corporate form to circumvent the contribution limits and to funnel corporate money directly into campaign coffers. But the Court’s record on campaign finance matters remains abysmal and its fingerprints are all over the disastrous flood of money into our elections that has followed its Citizens United decision,” said Campaign Legal Center Senior Counsel Tara Malloy. “Today’s decision does nothing to mitigate the Court’s disturbing decision last week to revisit the aggregate contribution limits passed in the wake of the Watergate scandals, which if overturned would enable individual to make contributions of one-two- or even three-million dollars to buy influence in Washington. But at least today the Court has decided to stay its deregulatory hand.”  

The Tillman Act, which originally banned corporate political contributions, was signed into law by President Teddy Roosevelt in 1907 in the midst of an era marked by political corruption and campaign finance scandals.  Repeatedly since then, the ban has been upheld by the Supreme Court (most recently in 2003 in FEC v Beaumont). 

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.

In July 2012, the U.S. Court of Appeals for the Fourth Circuit upheld the longstanding ban on corporate political contributions.

To read the amicus brief filed by the Campaign Legal Center and Democracy 21 in the Fourth Circuit Court of Appeals, click here. 

To read the decision of the Fourth Circuit Court of Appeals, click here. 

Today, unfortunately, the U.S. Supreme Court agreed to hear a challenge brought to the aggregate federal contribution limits, noting probable jurisdiction in McCutcheon v. FEC.  The case, brought by plaintiffs Shaun McCutcheon and the Republican National Committee (RNC), challenges 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 September of 2012, a three-judge panel in the U.S. District Court for the District of Columbia concluded that the aggregate limits are justified, and rejected the arguments of the plaintiff that the limits are unconstitutionally low and unconstitutionally overbroad.

“It is troubling that the Supreme Court has chosen to hear this challenge, but it has become readily apparent that there are a number of Justices who are willing to usurp Congress’s role as legislator when it comes to matter of campaign finance,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “An aggregate contribution limit was passed in the wake of the Watergate money scandals and was upheld in the 1976 Supreme Court decision Buckley v. Valeo.  If the current aggregate limits were to be struck down, one-, two- and even three-million dollars in contributions could easily be funneled by a single donor to his or her party and candidates of choice. Corruption, or at the very least the appearance of corruption, would be the rule rather than the exception in Washington.”

To read the amici brief filed by the Campaign Legal Center and Democracy 21, in defense of the aggregate limits, click here.

To read the District Court's decision upholding the aggregate contribution limits, click here.

Reform groups sent a letter today to the Office of Congressional Ethics (OCE) urging the agency to avoid the procedural minefield of rules changes proposed recently by several private attorneys.

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

On February 4, 2013, several private attorneys who represent clients before the OCE objected to its implementation of rules without a public hearing and suggested a series of rules changes that would burden the OCE’s ability to carry out its mission.

According to the reform group’s letter sent today:

“The rules changes suggested by these attorneys in a February 4, 2013, letter to OCE are inappropriate for OCE as currently structured and would impede the agency’s ability to make the ethics process more accountable and transparent.”

The reform groups pointed out that the OCE is merely a fact-finding agency with no authority to compel testimony, determine guilt or innocence, or in any way judge a case. The agency screens out frivolous cases and compiles useful information for the House Ethics Committee, if it is decided that further investigation is warranted.

The letter notes:

“OCE is not an investigative subcommittee of Congress, it is not a prosecutorial agency, and it should not be treated as one. The attorneys propose that the agency’s fact-finding mission be bound by burdensome procedural rules allowing the attorneys to challenge OCE at each step of compiling information. Worse yet, the attorneys propose that OCE not be allowed to consider, or take note of, in its fact-finding record the refusal of potential witnesses to participate in an investigation – tying the hands of the agency and blinding it at the same time.”

The letter concludes:

“Given its limited authority, OCE has done a remarkable job in making the congressional ethics process more active, accountable and transparent. … We urge you to reject the recommendations submitted to you in the attorneys’ letter of February 4th, which would undermine OCE’s ability to carry out the responsibilities assigned to the agency by the House of Representatives.”

To read the full letter from the reform groups, click here.

To read the letter sent by the private attorneys, click here.

Today, the Campaign Legal Center, joined by Democracy 21, filed an amici brief with the U.S. Court of Appeals for the Tenth Circuit in the latest of a long line of challenges to federal disclosure laws.  Free Speech v. FEC is a challenge to the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the Federal Election Commission’s (FEC) methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status.

The subpart (b) definition of express advocacy is crucial because it captures sham issue ads that do not say “vote for” or “vote against” a candidate, but “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”

“This suit, like many others before it, ignores Supreme Court precedent upholding disclosure laws by overwhelming margins. Again and again the Court has recognized the compelling public interest in disclosing the groups or individuals seeking to buy influence with candidates and officeholders,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “In particular the Free Speech brief ignores altogether the Supreme Court decision in Wisconsin Right to Life v. FEC in which the Court articulated its own test for the ‘functional equivalent of express advocacy’ which is virtually identical to the test being challenged in the Free Speech case.”

This case is part of a flood of litigation nationwide challenging state, local and federal disclosure laws in an attempt to undermine transparency in the political process. Most recently, the Fourth Circuit Court of Appeals rejected a similar challenge to the same regulations in Real Truth About Abortion v. FEC.

Free Speech began its challenge in March of 2012, by submitting an advisory opinion request to the FEC proposing to run a series of attack ads without registering as a political committee or complying with the disclosure requirements for political committees. Not getting the answer it wanted, the group filed suit against the regulations in the U.S. District Court for the District of Wyoming.  The Campaign Legal Center, joined by Democracy 21, filed comments with the FEC and an amici brief with the court in opposition. In October 2012 the District Court refused to grant the injunction citing a “wall of precedent” upholding disclosure laws.

The Legal Center and Democracy 21 were aided in this litigation by Larry B. Jones of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, P.C.

To read the brief filed today in the Court of Appeals by the Campaign Legal Center and Democracy 21, click here.

To read the order in the District Court, click here.