The Federal Election Commission today voted unanimously to deny an advisory opinion request by Majority PAC and House Majority PAC seeking permission for federal officeholders and candidates to solicit unlimited contributions from individuals, corporations and unions for federal “Super PACs.”  While officeholders and candidates will be allowed to make solicitations for funds complying with the existing federal contribution limits and prohibitions, as some are already doing, the Commission, in keeping with comments filed by the Legal Center, declined to open yet another loophole in the law by allowing what would amount to illegal “soft money” solicitations.

“Refreshingly, the FEC came to a consensus when asked for its opinion on the permissibility of some clearly illegal practices,” said Associate Legal Counsel Tara Malloy.  “Solicitations of unlimited corporate, labor and individual funds by federal candidates and officeholders are expressly prohibited by McCain-Feingold, and no court has questioned, much less overturned, those provisions.”

On May 19, 2011, Majority PAC and House Majority PAC, two Super PACs aligned with the Democratic Party, requested an advisory opinion on whether federal officeholders and candidates, and national party officials could legally solicit unlimited contributions from corporations, labor unions and individuals on behalf of the PACs.  This advisory opinion request came in the wake of an announcement by Republican National Committeeman James Bopp that his committee, Republican Super PAC (RSPAC), will ask federal officeholders, candidates and party officials to solicit unlimited contributions for RSPAC, and that it will earmark the funds raised by any Republican candidate for RSPAC for that candidate’s election.

These types of unrestricted solicitations by federal officeholders and candidates are explicitly prohibited by provisions of the Bipartisan Campaign Reform Act (BCRA) that have been upheld by the Supreme Court.  BCRA provides that a “candidate or an individual holding Federal office . . . shall not . . . solicit . . . funds in connection with an election for Federal office . . . unless the funds are subject to the limitations, prohibitions, and reporting requirements” of the federal campaign finance law.  Otherwise put, a federal officeholder or candidate is barred from soliciting unlimited contributions or funds from prohibited sources, such as corporations and unions, and may solicit contributions for a federal PAC only within the applicable federal contribution limits and source prohibitions.  These provisions were upheld by the Supreme Court in its 2003 decision in McConnell v. FEC.

“The two decisions out of the FEC today largely followed the letter and spirit of the laws on the books.” said Ms. Malloy.  “Unfortunately this has happened with decreasing frequency since the current Commission was seated and deadlocks have become all too common on important issues.  We hope that strong – and even unanimous – enforcement of the federal campaign finance laws continues in the future.”

On June 6, 2011, the Campaign Legal Center and Democracy 21 submitted comments to the FEC outlining that it is illegal for federal officeholders and candidates to solicit unlimited contributions for Super PACs.  To read the full comments, click here.

Scarcely one year after its radical ruling in Citizens United v. FEC, the Supreme Court today struck down key provisions of Arizona’s state public financing program in another decision that will undermine the integrity of our elections.  The 5-4 opinion throws into jeopardy the public financing programs of several states and municipalities that contain trigger provisions much like those struck down today as part of Arizona’s program.  The successful and popular program was passed by Arizona voters in 1998 after a wave of corruption scandals in the state.

McComish marks the first time that the Supreme Court has reviewed a public financing law since Buckley v. Valeo overwhelmingly approved the constitutionality of the presidential public financing system 35 years ago in the wake of Watergate.  The Buckley Court declared that “public financing represents a governmental effort “not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.”

“Today’s decision runs counter to the spirit of the Buckley precedent, which found that public financing was enhancement, not an abridgement, of First Amendment values,” Legal Center Associate Counsel Tara Malloy said.  “The Court’s hostility towards legislative efforts to protect our elections from the corrupting effects of big money politics is deeply disturbing and deeply anti-democratic.”

The focus of the decision was the “triggered matching funds provisions” of Arizona’s highly-successful Clean Elections system that provided participating candidates with supplemental public funds grants in the event that they faced large expenditures by a privately-financed opponent or an outside group.  These trigger provisions were important to the “Clean Elections” model of public financing, as they encouraged participation and ensured that publicly-financed candidates can remain competitive in elections that are increasingly dominated by outside corporate money.

Importantly, the decision does not affect many public financing programs without trigger provisions.  These include the presidential public financing system, state programs using different payment models, such the programs of Minnesota and Massachusetts, and the congressional system proposed by the Fair Elections Now Act.

“Voluntary public financing plays a critical role in our democracy and represents one of the last bulwarks against the flood of corporate money that the Citizens United decision released.”  Ms. Malloy stated.  “But the silver lining to the Supreme Court’s decision is that it invalidates only one model of public financing and leaves open other avenues for reform.  Citizens and legislators will simply have to work harder in the design of public financing programs to ensure that they clear the new constitutional hurdles created by the Roberts Court.”

The Campaign Legal Center, with Democracy 21, filed an amici curiae brief with the Supreme Court on behalf of eight public interest groups in support of the challenged trigger provisions of the Arizona program. In addition to serving as a friend-of-the-court, the Legal Center, along with its partners, coordinated a broad range of amici in the defense of the Arizona public financing system.

Today, the U.S. district court for the Eastern District of Virginia upheld FEC rules that serve to establish federal political committee status and the scope of federal disclosure requirements in Real Truth About Obama (RTAO) v. FEC.  The plaintiff RTAO challenged 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 is a well-reasoned decision that will aid in the enforcement of federal campaign finance law,” Legal Center Associate Counsel Tara Malloy stated.  “The ruling means that the federal independent expenditure disclosure requirements are not limited to ‘magic words’ express advocacy, and that the FEC is permitted to do a multi-factored analysis of a group’s activities in determining its ‘major purpose.’”

The RTAO case originally challenged several additional FEC rules, including the rule implementing the Supreme Court’s 2007 decision in Wisconsin Right to Life v. FEC (11 C.F.R. § 114.15).  These claims were mooted by the Supreme Court’sCitizens United ruling and other intervening decisions.  In April 2010, the Supreme Court vacated the decision of the Fourth Circuit Court of Appeals that had upheld these rules, and remanded the case for further consideration in light ofCitizens United and “the Solicitor General’s suggestion of mootness.”  Today’s decision followed this remand.

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 Legal Center filed two amici briefs in the case dating back to 2008.

The U.S. Court of Appeals for the Ninth Circuit issued its opinion today in Thalheimer v. City of San Diego, affirming the district court’s decision not to preliminary enjoin several challenged campaign finance restrictions of the City of San Diego.  The Campaign Legal Center, together with Common Cause, filed an amici curiae brief with the Ninth Circuit supporting the City of San Diego.

The Ninth Circuit explained: “The district court considered the constitutionality of five provisions [of San Diego’s campaign finance laws] and generally upheld the City’s pure contribution limits, but enjoined a provision that restricts both the fundraising and spending of independent political committees.”  The Ninth Circuit affirmed the district court’s decision.  The decision to enjoin the contribution limits as applied to independent expenditure committees is consistent with the D.C. Circuit’s decision in Speechnow.org v. FEC and FEC rulings in this area.

Among the campaign finance laws upheld by the Ninth Circuit is San Diego’s prohibition on political contributions by “non-individual entities” (e.g., corporations, labor unions and other groups) to candidates, political parties and other PACs that contribute to candidates.

The Ninth Circuit rejected plaintiffs’ argument that the Supreme Court’s decision last year in Citizens United requires invalidation of the corporate/union contribution ban.  Instead, the Ninth Circuit correctly applied the Supreme Court’s 2003 decision in FEC v. Beaumont upholding the century-old federal law ban on corporate contributions and wrote: “[T]here is nothing in the explicit holdings or broad reasoning of Citizens United that invalidates the anti-circumvention interest in the context of limitations on direct candidate contributions.”

“The Ninth Circuit’s correct understanding and application of Supreme Court precedent is a refreshing contrast to the judicial activism displayed earlier this week by Judge Cacheris of the U.S. District Court of the Eastern District of Virginia in the Danielczyk case,” stated J. Gerald Hebert, Executive Director of the Campaign Legal Center.  “Whereas the Ninth Circuit correctly did its job, Judge Cacheris grossly overstepped his authority when he ignored Supreme Court precedent and struck down the century-old federal restriction on corporate contributions to candidates and political parties.”

In addition to upholding San Diego’s prohibition on contributions by non-individual entities, the Ninth Circuit also upheld the city’s law prohibiting contributions to candidates outside of a 12-month pre-election window.  The Ninth Circuit affirmed the district court’s decision to preliminary enjoin a $500 limit on contributions to political committees that make only independent expenditures, including contributions by both individuals and non-individual entities.  The Ninth Circuit also affirmed the lower court’s injunction of the prohibition on “non-individual entity” contributions as applied to political party contributions to candidates.

To read the Legal Center’s brief, click here.