On May 17, 2012, the Eleventh Circuit Court of Appeals upheld Florida’s “electioneering communications” disclosure law in National Organization for Marriage (NOM) v. Sec. State of Florida in a per curiam decision.

The Florida statute under challenge requires groups to register and report as an “electioneering communications organization” if they make over $5,000 of electioneering communications in a calendar year.  In August 8, 2011, a Florida district court upheld the law, finding that the disclosure requirements were neither vague nor overbroad, and the Eleventh Circuit affirmed this decision.

“Although the Supreme Court strongly endorsed the value of political transparency in Citizens United, disclosure laws at both the federal and state levels remain under fire,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “We are pleased to see the Eleventh Circuit joining the First and Ninth Circuits in supporting the comprehensive disclosure of independent campaign spending in the post-Citizens United era.”

The case is the latest in a series of constitutional challenges to disclosure laws across the country.  Currently, the laws of over a dozen states, as well as the federal disclosure requirements applicable to independent spending, are being litigated.

On December 15, 2011, the Campaign Legal Center filed an amicus brief with the Eleventh Circuit in support of Florida’s electioneering communications disclosure law.

To read the decision, click here.

To read the Campaign Legal Center brief, click here.

Today, the Campaign Legal Center, joined by more than a dozen other organizations, urged the U.S. Supreme Court to let stand a lower court ruling upholding Montana’s restrictions on corporate expenditures in elections.  The groups filed an amici brief in support of Montana urging the U.S. Supreme Court to deny certiorari, or if it grants certiorari, to reconsider its holding in Citizens Unitedthat independent expenditures do not result in corruption or the appearance of corruption.

“Montana has a long history of corporate exploitation of its political bodies, resulting in corruption so rampant as to help lead to the passage of the 17th Amendment to the U.S. Constitution.  Unsurprisingly, its highest court recognized the danger inherent in lifting the corporate spending restrictions,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “If the Supreme Court chooses not to uphold the state Supreme Court ruling then it should grant certiorari and revisit the practical application of its own Citizens United ruling, which at the least, has led to the anonymous funding of shadow campaigns by special interests, and at worst, may result in outright corruption and political quid pro quos.”

The Legal Center website has briefs from both sides in the case including a joint brief from Senator John McCain (R-AZ) and Senator Sheldon Whitehouse (D-RI) and another from a group of former FEC and state and local campaign finance and enforcement officials, including former FEC Commissioner and Chairman Trevor Potter, President of the Campaign Legal Center.

The organizations joining the Legal Center on the brief include: AARP, Center for Responsive Politics, Chicago Lawyers’ Committee for Civil Rights Under Law, Citizens for Responsibility and Ethics in Washington, Common Cause, Illinois Campaign for Political Reform, League of Women Voters of the United States, Michigan Campaign Finance Network, National Institute on Money in State Politics, Progressives United, Sunlight Foundation, U.S. PIRG Education Fund and Wisconsin Democracy Campaign.

The brief filed by the Legal Center a focuses on three primary points that undermine the rationale behind the Citizens United decision to allow corporations and unions to make independent expenditures.  First, amici argue that existing law accommodates relationships so close that “independent expenditures” are not in reality independent.  Second, the brief illustrates that current tax and campaign finance laws enable corporations to deny citizens the information necessary to “hold corporations and elected officials accountable and make informed decisions on Election Day.”  Last, even when there is disclosure of independent spending, campaign finance data is often neither accessible, nor timely enough to allow voters to make informed decisions at the polls.

“The Citizens United ruling and the justifications behind it simply have not held water in the real world,” added Malloy. “The regulatory status quo simply does not require the level of independence and disclosure from independent spending that the Court recognized as vital to the health of our democracy.”

To read the Legal Center brief, click here.

To read other briefs in the case, click here.

Late yesterday, a three-judge panel of the D.C. Circuit Court of Appeals denied a motion to stay a lower court ruling in Van Hollen v. FEC that requires comprehensive disclosure of funders for groups making “electioneering communications.”  Millions of dollars have already been spent this cycle on electioneering communications and those funding them will now have to be revealed.

“This is a huge victory for voters, for disclosure, and for democracy because Americans deserve to know who is trying to buy results in our  elections,” said Trevor Potter, Campaign Legal Center President.  “This decision is an important step towards fulfilling the Supreme Court's promise in Citizens United that all spending in our elections will be fully disclosed -- disclosure that has been frustrated until now by the FEC.”

The case was brought by Representative Chris Van Hollen (D-MD) to challenge a 2007 FEC regulation that narrowed the scope of federal disclosure requirements connected to electioneering communications. On March 30, 2012 the district court granted summary judgment for Van Hollen and struck down the regulation, holding that it was arbitrary, capricious and contrary to the federal campaign finance statute it purports to implement.

“Electioneering communications” are broadcast advertisements that name a candidate and air within 30 days of a primary election or 60 days of a general election.  Groups making electioneering communications are now required to disclose all their donors of more than $1,000 or establish and use a segregated fund for electioneering communications.

“The FEC gutted the law passed by Congress to the point that compliance with it became optional,” added Potter.  “Assuming these Court decisions hold, funding of many of these electioneering communication ads will no longer be secret.  That is not the end of the legal road--the FEC regulations of funding of "independent expenditure" advertising still contain loopholes that are contrary to the disclosure mandated by Congress--but this is an important step towards full disclosure."

On April 26, 2012, the FEC announced that it would not appeal the district court decision.  However, the two corporate funded non-profit groups that have intervened in the case appealed the decision to the D.C. Circuit Court of Appeals and moved both the district court and the Court of Appeals to stay the district court decision pending their appeal.  On April 27, 2012, the district court denied the motion for a stay.

The Legal Center and Democracy 21 are part of Rep. Van Hollen’s pro bono legal team, led by Roger Witten of the law firm WilmerHale.

To read the Circuit Court’s order, click here.

To read the District Court filings and decision, click here.

Today, the Campaign Legal Center, together with more than a dozen government watchdog organizations, urged the Senate to oppose legislation that would block disclosure of campaign spending by government contractors.  In a letter to the full Senate Committee on Homeland Security and Governmental Affairs, the groups emphasized that, despite the claims of its Senate sponsors, the bill would not depoliticize government contracting.  Rather, it will encourage further abuses by banning transparency from the process.

S. 1100, sponsored by Sen. Susan Collins (R-ME), would prohibit requiring those seeking Federal contracts to reveal their political contribution information in order to be eligible to receive government funding.

“This proposal would allow contractors cashing government checks to buy influence through campaign spending and keep it secret from taxpayers and voters,” said Meredith McGehee, Campaign Legal Center Policy Director.  “These businesses are not spending this money out of the goodness of their hearts.  They expect something in return.  You can bet they will make sure the politicians they seek to influence will know about any money the government contractors spend.  Only the public, which foots the bill, would be left in the dark under this proposal.”

The Committee is expected to take up the proposed legislation at a business meeting tomorrow.

The full letter follows below.

May 15, 2012

The Hon. Joseph Lieberman, Chairman
The Hon. Susan Collins, Ranking Member
Committee on Homeland Security & Governmental Affairs
U.S. Senate
Washington, D.C. 20510
 
End Pay-to-Play Politics Through Transparency
Oppose S. 1100 that Would Keep Political Spending in the Shadows
 
Dear Senator:
 
Our 14 civic organizations write to you in solid opposition to S. 1100, the so-called “Keeping Politics Out of Federal Contracting Act,” and urge the Senate to reject this legislation that would block public disclosure of campaign contributions and spending by government contractors.
 
This effort to keep the campaign money of government contractors in the shadows runs afoul of the honesty of our elections and the integrity of the government contracting process. Disclosure is the solution, not the problem.
 
The organizations writing in opposition to S. 1100 include: Campaign Legal Center, Center for Media and Democracy, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Demos, League of Women Voters, MapLight, New Progressive Alliance, Project on Government Oversight, Public Citizen, Sunlight Foundation, U.S. PIRG and Union of Concerned Scientists.
 
“Pay-to-play” is the all-too-common practice of a business entity making campaign contributions or expenditures in support of public officials with the hope of gaining a lucrative government contract. The timing and targeting of campaign contributions demonstrates that contractors seek access to politicians with oversight of contracting,[1] and interviews with contractors reveal that they believe this access helps them win contracts.[2] Just how frequently such pay-to-play corruption takes place is a matter of dispute, but there is no disputing that the public perceives this problem is widespread.
 
S. 1100, sponsored by Sen. Susan Collins (R-ME), would create a very dangerous obstacle to reining in pay-to-play abuses in government contracting.
 
Pay-to-play corruption thrives in the shadows. As long as the public is generally kept in the dark as to how much a corporation is spending on behalf of public officials and their respective parties, pay-to-play can be an exceedingly effective tool in winning government contracts. Though it is extraordinarily difficult for the public to connect the dots of which company is spending how much in support of which candidates, contractors and their lobbyists are not at all shy about selectively informing officeholders and party officials who they are supporting and who they oppose.
 
While officeholders generally know their financial benefactors, the public is routinely left in the dark. This dichotomy between what politicians know and what the public knows about contractor campaign money is the greatest single recipe for pay-to-play abuse in federal contracting.
 
One of the single most important means to rein in this type of pay-to-play abuse in government contracting is to create a system of full disclosure so that the public also knows which contractors supported which officeholders. This transparency in contractor campaign spending would provide the public with the means to discern when contracts are being awarded based on money rather than merit – and a powerful tool to check pay-to-play abuses in government contracting.
 
There is nothing new about the idea of requiring government contractors to disclose their campaign financial activity. More than a dozen states already impose special disclosure requirements on government contractors, and federal contractors have been disclosing their PAC contributions for decades.
 
Full disclosure of money in politics is overwhelmingly supported by the American public, and it is one of the most effective means to ensure that the integrity of the government contracting process is not being compromised by the campaign money of “insider” influence peddlers.
 
We strongly urge you to vote against S. 1100.
 
Sincerely,
 
Campaign Legal Center
Center for Media and Democracy
Citizens for Responsibility and Ethics in Washington
Common Cause
Democracy 21
Demos
League of Women Voters
MapLight
New Progressive Alliance
Project on Government Oversight
Public Citizen
Sunlight Foundation
U.S. PIRG
Union of Concerned Scientists

[1] Roland Zullo, “Public-Private Contracting and Political Reciprocity,” Political Research Quarterly (2006) at 273-281.

[2] Kimberly Palmer, “Schmooze or Lose,” Government Executive (2005) available at:  www.govexec.com/features/1205-01/1205-01s4.htm

Today, the Campaign Legal Center, together with Democracy 21, filed comments urging the Federal Election Commission (FEC) to reject an attempt by America Future Fund (AFF) to avoid filing electioneering communications reports and disclosing donors for a series of proposed ads.  In Advisory Opinion Request 2012-19, AFF asks the agency whether eight submitted television advertisements would trigger the reporting requirements for electioneering communications.

“Electioneering communication” is a broadcast ad within a defined pre-election time frame that “refers to a clearly identified candidate for Federal office.”  An FEC regulation defines the phrase “refers to a clearly identified candidate” to mean: “[T]he candidate’s name, nickname, photograph, or drawing appears, or the identity of the candidate is otherwise apparent through an unambiguous reference. . . .”

Seven of AFF’s eight proposed ads identify President Obama without actually using the phrase “President Obama”—instead making repeated references to “the White House,” “the Administration,” or “Obamacare,” displaying images of the White House and in one instance even using a recording of President Obama’s voice.

“Although the proposed ads don’t include the words ‘President Obama,’ they nevertheless clearly identify President Obama using unambiguous references such as ‘the White House’ and ‘the Administration,’” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “AFF is certainly free to air these ads, but the ads are ‘electioneering communications’ and must be reported to the FEC with disclosure of the sources of funds used to pay for the ads.”

To read the complaint, click here.

Today, the Campaign Legal Center, together with Democracy 21, filed a complaint with the Federal Election Commission against Rep. Aaron Schock (R-IL) for his illegal solicitation of Majority Leader Eric Cantor (R-VA) to make a contribution of $25,000 to the super PAC Campaign For Primary Accountability.  Press reports quote both Rep. Shock and a spokesman for Leader Cantor freely admitting that the solicitation was made for an amount five times the legal limit.

The FEC made clear in an advisory opinion last year (AO 2011-12) that a federal officeholder “may only solicit contributions of up to $5000 from individuals . . . and Federal political action committees” for a super PAC such as Campaign For Primary Accountability.  But an article published in Roll Call makes very clear that Rep. Schock asked Majority Leader Cantor to make a $25,000 contribution to the super PAC.

“Rep. Schock and Leader Cantor’s campaign spokesman Ray Allen told Roll Callin no uncertain terms that a solicitation was made for $25,000, which amounts to a public confession to a clear violation of the law,” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “The FEC must pursue this violation by Rep. Schock or the agency would in effect be green-lighting candidates soliciting multi-million dollar contributions to the ostensibly ‘independent’ Super PACs that have been doing the dirty work of presidential candidates in the primaries – an activity expressly banned by the agency.”

“The FEC last year correctly recognized that Members of Congress are not free to solicit large contributions to super PACs,” said Donald Simon, counsel to Democracy 21.  “It must now enforce the law against what appears to be a clear violation of it by Rep. Schock.  As bad as the super PAC problem is, it would be worse if the FEC allows Members of Congress to get into the business of soliciting huge contributions for super PACs, in violation of the law.”

The complaint asked the FEC to conduct an immediate investigation of the matter and impose appropriate sanctions.

To read the complaint, click here.

Today the Federal Communications Commission took an important step to bring broadcasting into the 21st Century by requiring television broadcasters to put their public and political files online beginning this year.

Since 1965, TV broadcast stations that hold licenses from the FCC to use the publicly owned airwaves to serve specific communities have been required to disclose information about “community-relevant information for public review.”  The purpose of the disclosure was to help ensure that the broadcasters are meeting their public interest obligations and, in the case of the political file, especially to ensure they are abiding by their statutory obligations to offer candidates lower cost advertising in the heat of a campaign – an “anti-gouging” assurance.

The FCC voted 2-1 today to move the public file from the back room file cabinets onto a central, online database hosted by the FCC.  Those files include information about who purchased political ad time, the disposition of any request to purchase time for a political ad, the amount charged and when the political ad actually ran.  For the first two years, the new rule applies only to stations that are affiliated with the top four national networks (ABC, CBS, NBC, and Fox) and are licensed to serve communities in the top 50 Designated Market Areas (DMAs).

“The Commission’s action is an important victory for transparency and accountability in our nation’s public policy making broadcasters’ public files truly public,” said Meredith McGehee, Policy Director of the Campaign Legal Center.  “Keeping this information in file cabinets that required a personal visit to the TV station served only to make it difficult to hold broadcasters accountable for meeting the few requirements they have – reasonable access, equal opportunity and lowest unit charge.

“It is unfortunate that in this year’s election, there will still be many markets that are expected to see massive advertising campaigns by outside groups where this information will remain difficult to access,” McGehee said.  “It is in the smaller, more affordable markets where political ads for congressional and state races play a more significant role in the outcome of elections.  Just look at the races for Senate in New Mexico, Virginia, Nebraska, and Montana.

“But hopefully this FCC action has set a process in place that will continue and cover those markets in time for the next election.  Commissioners Genachowski and Clyburn deserve credit for withstanding the onslaught of opposition that the broadcasters are always skilled at bringing on matters about which they are concerned.”