Today the Campaign Legal Center and other reform groups urged the House of Representatives to pass H.R. 5175, the DISCLOSE Act as Leadership weighs bringing the legislation to the floor for a vote this week. The legislation was introduced by Representatives Chris Van Hollen (D-MD) and Mike Castle (R-DE) in response to the controversial Supreme Court decision in Citizens United v. FECwhich opened the door for corporations and unions to spend their treasury funds in federal elections.

The DISCLOSE Act would require timely and effective disclosure of these campaign-related expenditures, among other provisions. A Washington Post-ABC News poll shortly after the Supreme Court's ruling found that 8 in 10 Americans opposed the decision and that 72 percent backed congressional action in response.

In a telegram to the House, the groups recommended a yes vote on the bill and the Manager's amendment. Signers included the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters and Public Citizen.

The full text of the telegram follows below.

Dear Representative:

Our reform organizations support passage of H.R. 5175, the DISCLOSE Act.

We strongly urge you to vote for H.R. 5175 and the Manager's Amendment that accompanies the legislation, and to oppose any amendments to the bill that would weaken, undermine or gut the legislation.

Campaign Legal Center

Common Cause

Democracy 21

League of Women Voters

Public Citizen

Today the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission regarding the Commission's two alternative draft responses to an advisory opinion request by Citizens United seeking the "media exemption" from federal campaign finance disclosure laws for its "documentary" filmmaking (Draft Advisory Opinions 2010-08). The Commission is scheduled to consider this matter at its meeting tomorrow, June 10.

The federal law "media exemption" applies to a "press entity" not owned or controlled by a political committee or candidate that is acting in its "legitimate press function" by distributing a news story, commentary or editorial through the facilities of a broadcasting station.

Both draft opinions wrongly conclude that Citizens United is a "press entity" entitled, as such, to exemption from federal campaign finance disclosure requirements for all ("Draft A") or some ("Draft B") of its proposed activities.

The Supreme Court in its recent decision in Citizens United v. FEC upheld federal law disclosure requirements as applied to Citizens United by an 8-1 vote. The Court rejected Citizens United's claim "that Hillary is just 'a documentary film that examines certain historical events." Instead, the Court said the group's movie "in essence, is a feature-length negative advertisement that urges viewers to vote against Senator Clinton for President." Now, in the immediate wake of the Citizens United decision, with no change in its activities, Citizens United attempts to re-cast itself from an advocacy organization into a "press entity" in order to seek an exemption from the same disclosure requirements that the Court held can and do apply to it.

As we make clear in the comments we filed today, Citizens United is not a "press entity" but rather is, as it describes itself, an advocacy organization. Accordingly, its activities do not qualify for the media exemption.

If the Commission determines that a classic advocacy organization like Citizens United acquires the protections of the media exemption merely by producing a handful of films in furtherance of its advocacy mission, the unbounded nature of that determination will open the door for any and all advocacy groups to obtain an exemption from the campaign finance laws. To do so would seriously undermine the campaign finance laws, in direct contravention of the Commission's obligation to protect the integrity and efficacy of the laws it is charged with administering.

In a letter sent today, a coalition of reform groups urged Speaker of the House Nancy Pelosi to stand behind the Office of Congressional Ethics (OCE) against the latest challenge by Members seeking to undermine the OCE. The groups expressed their continued support of the OCE which has helped to revitalize a discredited and long dormant ethics process.

The reform groups include the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S.PIRG.

The full letter follows below.

June 9, 2010

Speaker of the House of Representatives

U.S Capitol

Washington, D.C. 20515

Dear Speaker Pelosi:

Our organizations are writing to express our strong support for the Office of Congressional Ethics (OCE) and our opposition to the efforts being undertaken by some Members to undermine the House rules that established the Office.

The organizations include the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S.PIRG

We have applauded your past recognition of the need for the OCE and your strong and effective leadership in pressing for its establishment in the last Congress. We urge you to continue your strong support for the OCE and to oppose the predictable efforts by some Members to cripple the Office.

To date, the OCE has made important progress in restoring the shattered credibility of the House ethics enforcement process.

The resolution recently introduced by Representative Marcia Fudge (D-OH) would undo what has been accomplished and return the House to an era when potential ethics violations disappeared into the files of the House Ethics Committee, without explanation or public accountability for the Committee's inaction.

The Fudge resolution would usher in a period of more secrecy, less transparency, less accountability and less trust in the House's ability to police its own ethics rules and standards.

Representative Fudge is quoted as saying, "O.C.E. is currently the accuser, judge and jury. This isn't the case in the American justice system, and it shouldn't be so in Congress."

That is an inaccurate portrayal of the duties and responsibilities that the House assigned to the OCE. The much more limited role of the OCE is to conduct preliminary investigations of potential ethics violations and to recommend to the House Ethics Committee either dismissal of such matters or further investigation of the matters by the Committee.

In fact, it is the pre-OCE system that posed the conflicts described by Representative Fudge where only House members could trigger ethics investigations and where only the Ethics Committee served as investigator, prosecutor, judge and jury in an ethics case. That is the system that resulted in a publicly discredited and ineffectual House ethics enforcement process.

We believe it was essential for the OCE to be established to inject an element of independence, transparency and credibility into the ethics enforcement process and the Office has done just that.

In fact, the OCE cannot make recommendations about whether an ethics violation has occurred, cannot judge a case, cannot find ethics violations have occurred and cannot sanction a Member for ethics violations. And the OCE has not tried to do so.

All the OCE can do is conduct a preliminary investigation and make recommendations to the House Ethics Committee as to whether the Committee should further investigate the matter. It cannot recommend any other action by the Ethics Committee or the House.

The OCE does make a report to the Ethics Committee on the findings of its preliminary investigation, which cannot include any findings regarding whether ethics violations have occurred. If the OCE recommends further investigation by the Ethics Committee and the Committee instead dismisses the matter, the report becomes public. This is the core provision in the new ethics enforcement process for ensuring public accountability for House Ethics Committee determinations.

The Fudge resolution would require that in order to even begin a preliminary investigation, the OCE would have to receive a sworn complaint from a citizen asserting personal knowledge of any alleged violation. This is an impossible standard to meet as a practical matter and it would shut down the OCE. Citizens and groups concerned about potential ethics violations are almost never going to have "personal knowledge" about the violations unless they participated in them.

This prerequisite in the Fudge resolution defies our system of justice and would impose on the OCE a far more onerous standard than has been imposed on the House Ethics Committee, which has long had the authority to initiate ethics investigations on its own authority.

As a general matter of enforcing laws and rules, it is not required for investigative bodies to have a sworn statement from an eye witness before an investigation can even begin. A case need not be proven before an investigation can be initiated. That is the purpose of the investigation. Enforcement bodies initiate investigations based on credible evidence, including information provided to the body, press stories, and other reports.

To raise the threshold for the OCE to conduct a preliminary investigation to this unique and unreasonable standard has one purpose and one purpose only -- to shield Members of Congress from ethics investigations and enforcement.

The resolution also seeks to silence the OCE by prohibiting public release of its reports if the Ethics Committee votes to dismiss a case or the Committee deadlocks in a tie vote. The public release of OCE reports in these circumstances, however, is essential to providing public accountability for House Ethics Committee actions.

This provision in the Fudge resolution would allow the Ethics Committee to dismiss or bury cases with impunity and without any public knowledge about what happened to an alleged ethics violation or why it happened. It would return the House to the old, discredited ethics process that caused all the problems in the first place and that publicly discredited the House as an institution.

The American public has long been concerned that Congress does not provide the same kind of enforcement for the rules that govern its own Members as it requires for the laws that apply to the rest of us.

Your leadership in the establishment of the OCE has resulted in a marked improvement in the House ethics enforcement process. The OCE has had an impressive and successful track record in the first Congress of its existence.

We strongly urge you to continue your strong support for the OCE and to oppose any efforts to weaken or undermine this important Office.

Campaign Legal Center

Common Cause

Democracy 21

League of Women Voters

Public Citizen

U.S PIRG

On the eve of a possible floor vote on the DISCLOSE Act (H.R. 5175), reform groups today urged House Members to support the legislation introduced by Representatives Chris Van Hollen (D-MD) and Mike Castle (R-DE). The legislation was crafted in the wake of the Supreme Court's controversial decision in Citizens United v FEC which opened the door for corporations and unions to spend their treasury funds in federal elections. The bill would require timely and effective disclosure of their campaign-related expenditures and the funding behind those activities.

The Campaign Legal Center, joined with Democracy 21, the League of Women Voters and Public Citizen in asking Members to vote for the Van Hollen-Castle legislation.

The full letter follows below:

May 27, 2010

Dear Representative,

Our organizations urge you to vote for the Van Hollen-Castle legislation to require timely and effective disclosure by corporations, labor unions, trade associations and non-profit advocacy groups of their campaign-related expenditures and the funders of these expenditures.

The organizations include the Campaign Legal Center, Democracy 21, the League of Women Voters and Public Citizen.

This critical bipartisan disclosure legislation is fair and equitable, and applies in the same manner to the groups covered by the bill.

The Van Hollen-Castle bill follows the recent 5 to 4 decision by the Supreme Court in Citizen United v. Federal Election Commission . The decision ignored two decades of past Supreme Court decisions to strike down a law in existence for more than 60 years that banned spending of corporate treasury funds to influence federal elections. The decision also had the practical effect of striking down the similar ban on labor union spending in federal elections.

The Court's overreaching and indefensible judicial activism in Citizens United was contrary to the positions taken by past Presidents, past Congresses and the Supreme Court over the last 20 years, all of whom concluded that the corporate spending ban was necessary to prevent corruption and the appearance of corruption.

At the same time, the Supreme Court in the Citizens United decision, by an 8 to 1 vote, made very clear that it is constitutional and appropriate to require the disclosure of corporate and labor union spending to influence federal elections.

The Supreme Court stated in Citizens United that disclosure and disclaimer requirements "do not prevent anyone from speaking," and disclosure "permits citizens and shareholders to react to the speech of corporate entities in a proper way."

The Court further stated:

"With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are "'in the pocket' of so-called moneyed interests." 540 U. S., at 259 (opinion of SCALIA, J.); see MCFL, supra, at 261. The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

Congress must move quickly to enact this legislation in order to make it effective for the 2010 elections.

We urge you to vote for the Van Hollen-Castle legislation and to oppose any efforts to undermine or weaken the provisions in the legislation.

Campaign Legal Center

League of Women Voters

Democracy 21

Public Citizen

Today the Campaign Legal Center urged Representatives to co-sponsor H.R. 4918, the Redistricting Transparency Act of 2010 introduced March 23 by Representatives John Tanner (D-TN) and Michael Castle (R-DE).  In a letter to Members of the U.S. House of Representatives, Executive Director J. Gerald Hebert and Policy Director Meredith McGehee outlined the legislative effort to allow greater transparency, citizen involvement, and accountability into the redistricting process.  The Redistricting Transparency Act would open the secretive process of drawing Congressional district lines to greater public scrutiny. 

Under the legislation, state redistricting entities would be required to establish and maintain a website providing relevant information about the redistricting process as it is underway.  Public hearings would also be required to allow increased public participation in and knowledge about the development of Congressional boundaries. Furthermore, the Redistricting Transparency Act creates an additional level of accountability by requiring redistricting entities to publish the reasoning behind why a final proposal was chosen, along with any dissenting opinions.   

The full letter follows below.

May 12, 2010

Dear Representative:

The Campaign Legal Center strongly urges you to join as a sponsor of H.R. 4918, the Redistricting Transparency Act of 2010 introduced March 23 by Representatives John Tanner (D-TN) and Michael Castle (R-DE).  H.R. 4918 seeks to infuse greater transparency, citizen involvement, and accountability into the redistricting process. 

The 2010 Census is underway and recent FEC filings and news reports make clear that political parties at all levels are preparing to take political advantage of the reapportionment and redistricting that will follow.  The two political parties are jockeying for position to maximize their chances of picking up the most seats in the redistricting process in 2011 for state legislatures and for Congress.  While this may or may not make your own seat “safer”, it is a grave disservice to citizens.  Greater transparency and citizen participation in redistricting are keys to preventing the worst partisan gerrymandering and improving our nation's democracy.  

The Redistricting Transparency Act aims to open the secretive process of drawing lines for Congressional districts to greater public scrutiny.  Under this legislation, state redistricting entities would be required to establish and maintain a website that would provide relevant information about the redistricting process.  The state entities would also be required to hold public hearings to allow increased public participation in and knowledge about the development of Congressional boundaries.

Furthermore, the Redistricting Transparency Act creates an additional level of accountability by requiring redistricting entities to publish the reasons why the final proposal was chosen, along with any dissenting opinions.

Currently, those charged with making redistricting decisions have been permitted to do so largely out of public view.  While members of the public are sometimes invited to testify before legislative committees and redistricting commissions, such hearings are often a sham.  The real redistricting decisions (such as where to place the lines on the map) are made in back rooms with almost no public involvement.  New opportunities are needed for citizens and organizations to participate effectively throughout all aspects of the process in some form.

Absent meaningful public participation in the redistricting process, partisan abuse of the process will often ensue and public distrust of elected officials will only increase.  But if those who draw the lines understand that their redistricting decisions are being watched, and watched closely, their behavior and the districts that emerge from the process are likely to be significantly more democratic in nature.

One way to change the outcome is to figuratively and literally drag the redistricting process out from behind closed doors.  Achieving that result, even on a limited scale, will not be easy.  The Redistricting Transparency Act, which has been endorsed by the Blue Dog Coalition, seeks to ensure more effective participation in that process by grass roots groups and local citizens.  The legislation will provide citizens with improved tools to engage in and monitor the political process and to elect their desired representatives. Those things are good for our democracy.

With the next round of redistricting fast approaching, the Legal Center strongly urges you to co-sponsor H.R. 4918.

Thank you for your time and consideration of this matter.

Sincerely,

Meredith McGehee       

Policy Director                                                                                                                      

J. Gerald Hebert            

Executive Director

This advisory opinion ignores both the letter and the intent of the 'soft money' ban in McCain-Feingold. To declare that redistricting activities are not "in connection with" elections ignores the realities of the process. The outcomes of elections for some congressional seats for the next decade will be determined by those who draw the lines during the redistricting process.

The FEC announced late today its Advisory Opinion 2010-03 to the National Democratic Redistricting Trust—declaring that redistricting activities are not "in connection with" elections and granting the Trust permission to have federal candidates and officeholders solicit soft money to fund its litigation in the upcoming post-2010 Census redistricting battle.

The Trust brought this advisory opinion request because federal law prohibits federal candidates and officeholders from soliciting, receiving, directing, transferring, or spending any "funds in connection with an election for Federal office" or any "funds in connection with an election other than an election for Federal office" unless such funds are "subject to the limitations, prohibitions, and reporting requirements of this Act" or are consistent with the Act's contribution limits and source restrictions, respectively.

The question posed by the Trust was a simple one: Are funds raised for, and spent on, legal and administrative costs associated with redistricting to be treated as funds raised and spent "in connection with an election" for purposes of the soft money solicitation ban?

Just last Thursday, three of the six Commissioners (Bauerly, Weintraub, Walther) refused to grant the requested permission for federal candidate and officeholder soft money fundraising, but requested from the Trust a week extension to try to work out a "compromise."

And last year, in the RNC v. FEC case, the entire Commission argued to the U.S. District Court for the District of Columbia: "[T]he record from McConnelldemonstrates that '[r]edistricting efforts affect federal elections no matter when they are held.'"

Nevertheless, earlier today the Commission unanimously opened the door to this soft money fundraising, without a word about how today's decision squares with its argument in RNC v. FEC.

* Legal Center Executive Director J. Gerald Hebert took no part in the consideration of this matter.

To read the comments on AOR 2010-03, click here.

To read the Advisory Opinion, click here.

Today, the Public Interest Public Airwaves Coalition urged Federal Communications Commission (FCC) Chair Julius Genachowski to take immediate steps to make effective the online public file rule adopted more than two years ago requiring commercial television stations to make their public inspection files available on their web sites.

The Public Interest Public Airwaves Coalition includes the Benton Foundation, the Campaign Legal Center, the Media Access Project, the New America Foundation, Common Cause, the Office of Communication Inc. of the United Church of Christ, and the United States Conference of Catholic Bishops.

The full letter follows:

Georgetown  Law

INSTITUTE FOR PUBLIC REPRESENTATION

                                                                                                                                                                                                                                                                                                                                                         May 4, 2010

 Re: Implementation of the Online Public File, Standardized and Enhanced

Disclosure Requirements for Television Broadcast Licensee Public Interest Requirements, MB Docket 00-168

 Dear Chairman Genachowski:

Members of the Public Interest Public Airwaves Coalition – Benton Foundation, Campaign Legal Center, Media Access Project, New America Foundation, Common Cause, Office of Communication Inc. of the United Church of Christ, and the United States Conference of Catholic Bishops -- call on the Commission to take immediate steps to make effective the online public file rule adopted more than two years ago. The Enhanced Disclosure Order requires commercial television stations to make their public inspection files available on their web sites and replaces the quarterly issues/programs list with a standardized form. Although the Commission is still considering whether to modify the form, it should take immediate steps to implement the online public file rule.

As revised, Rule 73.3526(b)(2) requires that commercial television stations make available much of the contents of their public inspection files on their web sites.  However, this rule has never taken effect.  It was supposed to take effect 60 days after the Commission published a Federal Register Notice announcing OMB approval.  However, the Commission has apparently never even sought OMB approval.

Prompt implementation of the online public file rule would further the Commission’s goals of modernizing the agency in the digital age, increasing transparency, and promoting public participation.  The Commission initially required broadcast stations to maintain a public inspection file more than forty years ago to ensure that the public had the necessary information to hold their local broadcasters accountable.  Because the Commission does not routinely monitor each station’s programming, the Commission depends on viewers and listeners to provide information about whether stations are meeting their public interest obligations to local communities.  The Commission routinely fines stations that fail to maintain their public inspection file. See, e.g., In the Matter of Gaston College (January 29, 2010); In the Matter of R-S Broadcasting Company, Inc.(January 11, 2010)

In 2000, the Commission proposed that television stations post their public inspection files online to provide 24-hour access and increase public accessibility.  Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, 15 FCC Rcd 19816 (2000)(NPRM).   In the same NPRM, the Commission tentatively concluded that television broadcasters should provide information on how they serve the public interest in a standardized format on a quarterly basis.

In 2008, the Commission adopted both proposals. Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, 23 FCC Rcd 1274 (2008) (Enhanced Disclosure Order).  The Commission found that the costs of posting the information on line were “outweighed by the benefits to the public of Internet accessibility.”  Id. at ¶10.  By making the material more accessible, it hoped “to encourage the public to play a more active role in dialogue with broadcasters.”  Id. at ¶12.   Placing public files online would enhance “the ability of both those within and those beyond a station’s service area to participate in the licensing process.”  Id. at 13 (emphasis in original).   The Enhanced Disclosure Order also replaced the quarterly issues/programming list with a standardized form, Form 355, on which broadcasters report on various types of public interest programming such as local news, electoral coverage, and public service announcements.

Some parties representing the broadcast industry filed petitions for reconsideration of the Enhanced Disclosure Order.  Most focused on the burdens associated with Form 355 rather than the online posting requirement. While the Commission may need more time to consider modifications to Form 355, it should be able to act quickly on the petitions for reconsideration addressing the online public file rule and submit that rule to OMB for approval, if necessary.

Since taking office, you have taken steps to increase public participation in Commission proceedings, make the agency more data driven, and take advantage of the power of the Internet.  For example, you told Congress that the American people deserve a Commission that encourages and facilitates participation by all stakeholders. Testimony Before Subcomm. on Commc’n, Tech. and the Internet of the House Comm. on Commerce, September 17, 2009.   The FCC Reform Agenda presented in February recognized that the FCC has “enormous opportunities to make the agency more data driven.”  That same month, the FCC issued two Notices proposing rule changes to improve decision-making and promote public participation in FCC proceedings.  In addition, the Commission itself is using the web to solicit public participation in developing the national broadband plan, the Open Internet Inquiry and the Future of the Media Inquiry.

Each of these goals – public participation, data-driven policy-making, and leveraging the power of the Internet – would be served by making public inspection files more accessible by posting them online.  Not only would the public be more likely to engage in dialog with broadcasters and participate in licensing proceedings, but increased access to this information would allow more informed participation by members of the public in other FCC proceedings such as the Future of Media Inquiry and the 2010 Quadrennial Review. The Commission should also move expeditiously to resolve the issues associated with Form 355, since it will serve many of the same goals.  For these reasons, we urge the FCC to promptly issue an order disposing of petitions for reconsideration of the online filing requirement and immediately thereafter, seeking OMB approval.

cc:  Commissioner Michael Copps

Commissioner Robert McDowell

Commissioner Mignon Clyburn

Commissioner Meredith Atwell Baker

William T. Lake