The Campaign Legal Center, together with Democracy 21, filed comments yesterday with the Federal Election Commission (FEC) in regard to an advisory opinion request (AOR 2010-7) submitted on behalf of "Yes on FAIR." The California political committee is seeking the Commission's opinion as to whether "Members of Congress may solicit funds for Yes on FAIR outside the limits and source restrictions prescribed by the Federal Election Campaign Act ("FECA") [ i.e., soft money]."

As recognized by Yes on FAIR, the question of whether federal candidates and officeholders may solicit soft money for state ballot measure committees has been posed to the Commission in at least three advisory opinion requests since the enactment of the Bipartisan Campaign Reform Act of 2002 ("BCRA")—"each yielding a different outcome." We agree with Yes on FAIR that the "result has been confusion in the law" and that the "time has long since passed" for the Commission to answer this question definitively. However, we disagree in the strongest possible terms with Yes on FAIR regarding what the definitive answer should be under the controlling law.

We urge the Commission to make clear that FECA, as amended by BCRA, along with existing Commission regulations, require the Commission to advise Yes on FAIR that Members of Congress may not "solicit funds for Yes on FAIR outside the limits and source restrictions" prescribed by FECA.

Despite the Yes on FAIR's best efforts to complicate the matter—and the Commission's indecisiveness in past advisory opinion proceedings—the appropriate legal analysis is simple. The Commission needs to answer only two straightforward questions:

* Are Members of Congress within the class of persons restricted by the soft money solicitation prohibition of BCRA— i.e. , are Members of Congress federal candidates, federal officeholders, or agents of federal candidates or officeholders?

* If so, is the proposed activity covered by the soft money solicitation prohibition of BCRA— i.e. , are the funds being solicited or directed in connection with an "election"?

The answer to the first question is yes. Obviously, Members of Congress are federal officeholders and many are likewise federal candidates and thus are clearly subject to the soft money prohibition of BCRA.

The answer to the second question is also yes. The activity proposed by Yes on FAIR—to have Members of Congress soliciting funds for an initiative committee whose activities relate to a ballot proposition that will appear on the same ballot that Members of Congress will appear as candidates for federal office—is not only solicitation in connection with "an election," but in connection with an "election for Federal office" where federal candidates are on the ballot and stand to benefit from the soft money expenditures that the initiative committee makes.

Because both questions above should be answered in the affirmative, BCRA prohibits Members of Congress from soliciting soft money for Yes on FAIR.

The Commission should be clear as to what is at stake in this AOR. Yes on FAIR seeks permission to have Members of Congress solicit soft money funds for the ballot measure committee to spend on activities that—according to empirical studies as well as common sense—will shape the electoral environment in which the federal candidates themselves are running for office: Yes on FAIR will motivate voters, they will seek to register voters, and they will turn out voters to the polls, all of whom will then vote in the federal candidates' elections as well.

We strongly urge the Commission to advise Yes on FAIR that solicitation of funds for it by Members of Congress in connection with the November 2010 California general election must comply with FECA amount limitations, source prohibitions and reporting requirements as required by BCRA.

To read the comments, click here.

On Monday, April 19, 2010, the Legal Center, along with Democracy 21, filed an amici brief with the en banc Fifth Circuit Court of Appeals in Cao v. FEC . The case was filed by the RNC and others in November 2008 to challenge the party coordinated spending limits and the $5,000 political committee contribution limit as applied to coordinated spending.

The action arose from the decision of the district court to "certify" a number of constitutional questions proposed by Representative Cao and the RNC plaintiffs to the Fifth Circuit for en banc consideration. The district court also declined to certify several of plaintiffs' proposed questions, ruling they were "frivolous," and plaintiffs are also appealing this decision.

In the amici brief, the Legal Center urges the Fifth Circuit to reject the RNC's challenge. Amici argue out that the Supreme Court has both endorsed the general practice of regulating coordinated expenditures as contributions, and specifically upheld the party coordinated expenditure limits challenged in the Cao case. Acceptance of the plaintiffs' sweeping arguments, amici point out, would essentially require the overruling of past Supreme Court precedent affirming the constitutionality of restrictions on coordinated spending.

Oral argument before the en banc Court of Appeal is scheduled for May 24, 2010.

To read the brief, click here.

The Campaign Legal Center, joined by the Center for Governmental Studies and Common Cause, filed a brief amici curiae last week in the U.S. Court of Appeals for the Ninth Circuit, supporting the City of San Diego in its defense of limits on contributions to non-candidate / non-party political committees in Thalheimer v. City of San Diego.

The challenged San Diego law provides that a "general purpose recipient committee" may only use individual contributions—not contributions from corporations, labor unions or other non-individual entities—to support or oppose a municipal candidate by making independent expenditures, and those contributions may only be up to $500 per individual contributor. On February 16, 2010, the district court preliminarily enjoined the City's enforcement of the contribution limit.

The Legal Center argues in its brief to the Ninth Circuit that the district court's decision was an abuse of discretion and in error, and that the Ninth Circuit should reverse the decision. Specifically, the Legal Center argues that the district court erroneously applied the strict scrutiny analysis of the Supreme Court's decision in Citizens United, striking down a spending limit, to the San Diego law, which is acontribution limit that should be subject to a lower degree of scrutiny. Also, the district court erred in concluding that San Diego's interest in preventing actual or apparent corruption would justify only limits on "direct contributions to candidates," not limits on contributions to committees making independent expenditures.

We welcome the decision of the three-judge district court panel in RNC v FEC to uphold the McCain-Feingold soft money ban from legal attack by those who seek to allow unlimited and corrupting contributions by corporations and special interests to the national party committees. Though an appeal to the Supreme Court may well follow day's decision, the court rightfully recognized that the Supreme Court's 2003 McConnell decision is still the law of the land when it comes to the ban on soft money contributions to political party committees. The panel rightfully recognized that the Supreme Court's decision in Citizens United did not address the constitutionality of the soft money ban.

Before the ban, massive donations were given by those seeking to influence the legislative process and many Members of Congress on both sides of the aisle were not shy about soliciting such contributions. Our democracy is well rid of the practice.

This case may be appealed and the Roberts Court's decision on whether to hear it will be indicative of how far the Court's narrow majority is willing to go in gutting the nation's campaign finance laws to the benefit of the very deepest pockets. Public opinion and political reality of what huge contributions buy in Washington would argue against the further gutting of the McCain-Feingold law, and the Court and the nation will be better served by upholding the ban if given the opportunity

The decision by the DC Circuit in SpeechNow.org to allow unlimited contributions to political committees to make independent expenditures demonstrates a judicial lack of understanding of the realities of the way corruption threatens our elections. This decision, and the Citizens United decision by the Supreme Court this term allowing corporate independent political expenditures, simply ignore history and the reality that independent expenditures can and do corrupt, buy access to, and curry favor with Members of Congress, and residents of the White House. To hold that the only form of true corruption is the literal quid pro quo of a bribe for a vote is simply untethered from political reality.

While we are disappointed in this decision, we do welcome the DC Circuit's strong endorsement of the requirements that groups seeking to influence elections register as political committees and regularly report and disclose their donors. This is obviously of enormous importance, so that deep pocketed interests will not be able to anonymously spend millions on their candidate attack ads.

The "Redistricting Transparency Act of 2010" (H.R. 4918), introduced by Rep. John Tanner (D-TN) and Rep. Michael Castle (R-DE), will bring the redrawing of congressional districts into the light of day. The secretive process employed in too many states has left citizens in the dark while legislators handpick the voters that will be their constituency. This gerrymandering, with politicians choosing voters instead of voters choosing their elected officials, is a grave disservice to our democracy and feeds the bitter partisanship and dysfunction on Capitol Hill.

With the next round of redistricting soon to begin after the 2010 census, it is no secret that both parties at the state and federal level are already assembling armies of lawyers, experts and massive resources to manipulate the redistricting process for partisan gain. All too often, this partisan gaming of the process comes to light after the voters have been chosen and the district lines drawn. This bill opens up the redistricting process to effective public participation and transparency.

The Tanner-Castle bill deserves broad bipartisan support, public attention, and a hearing - something that has been denied to numerous past efforts to reform the system. This legislation is not written to benefit Democrats or Republicans; it is written to benefit the American people. Members of Congress were sent to Washington to enact laws that protect us and promote the general welfare of our nation. There is no better example of a law that does just that than the "Redistricting Transparency Act of 2010."

To read the bill, click here.

Today, the U.S. Supreme Court denied the petition for certiorari in Cao v. FEC, a key case concerning the federal party coordinated spending limits.  The high Court’s order leaves standing the decision of the en banc Fifth Circuit Court of Appeals that strongly affirmed the constitutionality of these important restrictions.

“This morning the Supreme Court deferred to precedent and declined to hear this attack on the longstanding limits on party coordinated spending,” said attorney Tara Malloy of the Campaign Legal Center.  “Plaintiffs’ challenge would have blown huge loopholes in the federal campaign finance laws and enabled large-scale circumvention of the individual contribution limits.”

The case was one of two challenges to campaign finance laws filed shortly after the 2008 federal elections by the RNC.  The Cao case challenged the federal limits on how much money the parties could spend in direct coordination with their candidates, as well as the $5,000 political committee contribution limit as applied to party coordinated spending.  The party coordinated spending limits had been upheld by the Supreme Court in its 2001 decision in FEC v. Colorado Republican Fed. Campaign Committee, and thus the plaintiffs were effectively requesting that the high Court overrule one of its past decisions.

“We are pleased that the Supreme Court turned away this challenge and that its prior decisions in campaign finance cases remain the law of the land,” added Ms. Malloy.  “Today, the challenged law survived, but there remains a lengthy list of challenges making their way through the courts hoping for a sympathetic audience from the Supreme Court under Chief Justice John Roberts.”

In June 2010, the Supreme Court summarily affirmed the lower court decision in the companion case to Cao – RNC v. FEC – which had upheld the McCain-Feingold soft money limits on contributions to political party committees.  Today’s decision thus marks the second time the Supreme Court has declined to hear cases by those who seek to loosen the federal party financing restrictions.

The Legal Center, along with Democracy 21, filed an amici brief with the Fifth Circuit Court of Appeals on April 19, 2010 to defend the constitutionality of the party coordinated spending limits.  To read the brief, click here.