It is unfortunate that the DISCLOSE Act has fallen victim to election season political posturing. Once the dust settles after Election Day, the Senate would be wise to revisit the DISCLOSE Act.  Polls have repeatedly shown that Americans, by overwhelming margins, are strongly opposed to corporations and unions spending unlimited amounts anonymously to elect or defeat candidates and that citizens expect their elected representatives in Washington to act. 

  Public disgust and calls for a congressional response will only increase as Americans nationwide will be forced this election season to sit through endless attack ads paid for by groups with patriotic names and completely anonymous backers.

While today’s Senate vote is disappointing, we remain optimistic that Congress will soon follow the will of the voters and enact meaningful disclosure legislation.  We also hope that efforts to rally opposition to DISCLOSE by the “Tea Party Nation” – a group which is best known for trying to turn a profit on the Tea Party movement -- will not gain traction, especially because they are so misinformed about what the DISCLOSE Act will do.  Anyone seeking to change the status-quo in Washington should be making sure that all Americans are aware of who is trying to buy and sell their elected representatives.  After the Supreme Court decision last January, new laws are critically needed to ensure that Americans are not left in the dark about the large sums of money being spent to influence the outcome of our elections.

Reform groups today urged Speaker of the House Nancy Pelosi (D-CA) and Minority Leader John Boehner (R-OH) to publicly commit to stand behind the Office of Congressional Ethics (OCE) in the face of numerous threats to dismantle or disempower the Office.  In the letters, the groups expressed their continued support of the OCE which has helped to revitalize an ethics process that had become the object of public scorn after years of dormancy.

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

 
The full text of both letters follows below.
 
 
September 15, 2010
 
House Republican Leader John Boehner
H-204
The Capitol
Washington, D.C. 20515
 
Dear Republican Leader Boehner,
 
Our organizations urge you to make a public commitment now to support the continued existence of the OCE in the next Congress.  We also urge you to make a public commitment to oppose any changes in the OCE which would prevent the Office from effectively carrying out its mission and basic responsibilities.
 
As organizations dedicated to promoting government ethics, accountability and transparency, we strongly support the OCE and the effective role it has played in this Congress.
 
Our organizations include the Campaign Legal Center, Common Cause, CREW, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG.
 
The OCE represents an unprecedented ethics breakthrough in that, for the first time, non-members of Congress are playing a key role in the House ethics enforcement process. The OCE is the most important step taken to strengthen the House ethics enforcement process since the House Ethics Committee was created in 1966.
 
The OCE was established to serve as an action-forcing mechanism to ensure that the House Ethics Committee considered and addressed serious ethics matters and that the public received appropriate information about how these matters were resolved by the Ethics Committee.
The OCE has done in this Congress precisely what it was created to do. As an action forcing mechanism, it has provided for House Ethics Committee consideration of significant potential ethics violations. The OCE also has injected essential transparency and accountability into the House ethics enforcement process.
 
In response to these efforts, the Office has come under attack from House members of both parties and from the Ethics Committee itself. We believe these attacks are unjustified and, in particular, we have seen no evidence to support the claim made by some that race has been a factor in actions taken by the OCE or the House Ethics Committee.
 
We are well aware that efforts are likely to take place at the outset of the next Congress to eliminate or cripple the OCE. This would be a fundamental mistake on the part of House members and would signal to the American people that House members are not serious about ethics and have little interest in enforcing the ethics rules that govern their actions.
 
We recognize that any new entity like the OCE requires review at the end of its initial stage of operations. However, if and when any changes are proposed or considered it is imperative that they must not undermine or hamper the OCE’s ability to ensure that significant potential ethics violations are investigated by the House Ethics Committee. Similarly it is imperative that they must not weaken OCE’s essential role in providing the American people with transparency and accountability in the House ethics enforcement process. We urge you to publicly commit to oppose any such changes.
 
As you know, the OCE was created following the failure of the House Ethics Committee, to conduct any investigations or take any actions regarding the worst congressional ethics and lobbying scandals in decades, the Jack Abramoff scandals that occurred during the 109th Congress.  This failure demonstrated a fundamental problem with the House ethics enforcement process, namely that the House Ethics Committee had become a burial grounds for potential ethics violations which often simply disappeared in the Committee.
The OCE was created to address this problem and has worked well to protect the interests of the American people and the House as an institution. It would be a grave mistake and a disservice to the American people to abandon or cripple the OCE and return to the dysfunctional House ethics enforcement process that existed before its creation. As a New York Times editorial stated (August 5, 2010):
 
Grumblers on both sides want to gut the ethics office. That is because it has been fulfilling its mission to put life into the lawmakers' own stultified ethics process, to penetrate the murk of misbehavior and keep the public better informed.
 
In summary, our organizations call on you to make a public commitment to the American people to support the continuation of the OCE and to oppose any efforts to prevent the OCE from effectively carrying out its mission and basic responsibilities. The OCE must continue to ensure that significant potential ethic violations are investigated by the House Ethics Committee and that effective accountability and transparency exists in the ethics enforcement process
 
We would appreciate receiving a response to the matters we have raised in our letter.
 
Campaign Legal Center       League of Women Voters
Common Cause                    Public Citizen
CREW                                      U.S. PIRG
Democracy 21
 
 
 
September 15, 2010
 
House Speaker Nancy Pelosi
H-232
The Capitol
Washington, D.C. 20515
 
Dear Speaker Pelosi,
 
As organizations dedicated to promoting government ethics, accountability and transparency, we very much appreciate the outstanding leadership you provided in establishing the Office of Congressional Ethics in 2008 (“OCE”).
 
Our organizations include the Campaign Legal Center, Common Cause, CREW, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG.
 
The OCE represents an unprecedented ethics breakthrough in that, for the first time, non-members of Congress are playing a key role in the House ethics enforcement process. The OCE is the most important step taken to strengthen the House ethics enforcement process since the House Ethics Committee was created in 1966.
The OCE was established to serve as an action-forcing mechanism to ensure that the House Ethics Committee considered and addressed serious ethics matters and that the public received appropriate information about how these matters are resolved by the Ethics Committee.
The OCE has done in this Congress precisely what it was created to do. As an action forcing mechanism, it has provided for House Ethics Committee consideration of significant potential ethics violations. The OCE also has injected essential transparency and accountability into the House ethics enforcement process.
 
In response to these efforts, the Office has come under attack from House members of both parties and from the Ethics Committee itself. We believe these attacks are unjustified and, in particular, we have seen no evidence to support the claim made by some that race has been a factor in actions taken by the OCE or the House Ethics Committee.
 
We are well aware that efforts are likely to take place at the outset of the next Congress to eliminate or cripple the OCE. This would be a fundamental mistake on the part of House members and would signal to the American people that House members are not serious about ethics and have little interest in enforcing the ethics rules that govern their actions.
 
Our organizations urge you to make a public commitment to support the continued existence of the OCE in the next Congress.  We also urge you to make a public commitment to oppose any changes in the OCE which would prevent the Office from effectively carrying out its mission and basic responsibilities.
 
We recognize that any new entity like the OCE requires review at the end of its initial stage of operations. However, if and when any changes are proposed or considered it is imperative that they must not undermine or hamper the OCE’s ability to ensure that significant potential ethics violations are investigated by the House Ethics Committee. Similarly it is imperative that they must not weaken OCE’s essential role in providing the American people with transparency and accountability in the House ethics enforcement process. We urge you to publicly commit to oppose any such changes.
 
As you know, the OCE was created following the failure of the House Ethics Committee, to conduct any investigations or take any actions regarding the worst congressional ethics and lobbying scandals in decades, the Jack Abramoff scandals which occurred in the 109th Congress.
 
This failure demonstrated a fundamental problem with the House ethics enforcement process, namely that the House Ethics Committee had become a burial grounds for potential ethics violations which often simply disappeared in the Committee.
The OCE was created to address this problem and has worked well to protect the interests of the American people and the House as an institution. It would be a grave mistake and a disservice to the American people to abandon or cripple the OCE and return to the dysfunctional House ethics enforcement process that existed before its creation. As a New York Times editorial stated (August 5, 2010):
 
Grumblers on both sides want to gut the ethics office. That is because it has been fulfilling its mission to put life into the lawmakers' own stultified ethics process, to penetrate the murk of misbehavior and keep the public better informed.
 
In summary, our organizations call on you to make a public commitment to the American people to support the continuation of the OCE and to oppose any efforts to prevent the OCE from effectively carrying out its mission and basic responsibilities. The OCE must continue to ensure that significant potential ethic violations are investigated by the House Ethics Committee and that effective accountability and transparency exists in the ethics enforcement process
 
We would appreciate receiving a response to the matters we have raised in our letter.
 
Campaign Legal Center       League of Women Voters
Common Cause                    Public Citizen
CREW                                  U.S. PIRG
Democracy 21

Reform groups today urged Senators Olympia Snowe (R-ME), Susan Collins (R-ME) and Scott Brown (R-MA) to support the disclosure provisions in the DISCLOSE Act (S. 3628) to ensure voters are aware of the huge amounts of money that individuals, corporations and unions are spending to run ads attempting to sway the elections.  The groups emphasized the tens of millions of dollars already being spent anonymously to support or attack candidates this election season and cited overwhelming public support for disclosure and a legislative response in the wake of the Supreme Court’s controversial ruling inCitizens United v. FEC unleashing massive corporate and union treasury funds into federal elections. 

The DISCLOSE Act would require timely and effective disclosure of these campaign-related expenditures, among other provisions.  Prior to the August recess, the legislation fell one vote short of the 60 votes necessary in the Senate to overcome a Republican filibuster.  A companion bill (H.R. 5175) to the original Senate bill passed in the House in June.  

The groups signing the letter included the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, People for the American Way, Public Citizen, and U.S. PIRG.

The full text of the letter to Senator Snowe follows below.

September 14, 2010 

Senator Olympia Snowe

154 Senate Russell Office Building

Washington, D.C. 20515

Dear Senator Snowe,

As a result of the Citizens United decision earlier this year, tens of millions of dollars are being spent in the 2010 congressional races without voters having any idea about who is funding these expenditures. This is wrong and unfair to the American people.

Our organizations believe it is essential to enact the disclosure provisions of the DISCLOSE Act in order to provide the American people with campaign finance information for future presidential and congressional elections that they have a right to know.

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

The absence of essential campaign finance information for the 2010 elections violates a basic rule of American politics for the past 40 years – that voters have a right to know who is behind the money being spent to influence their votes.  This right to know was firmly established by the Supreme Court in Buckley v. Valeo(1976) which upheld the constitutionality of campaign finance disclosure laws.

The absence of this campaign finance information, furthermore, contradicts the longstanding consensus in this country that campaign contributions and expenditures should be disclosed to the American people so that voters can “make informed choices in the political marketplace,” in the words of the Supreme Court. 

The consensus for campaign finance disclosure is fully reflected in the views of Maine voters as shown in a poll taken for Maine Citizens for Clean Elections earlier this year. The poll by Critical Insights, a Maine polling firm, taken in April 2010 found:

• “85% of voters feel it is important to know who paid for the political campaign communications they see or hear,” and
• “[m]ore than 80% of Maine voters believe that having the names of donors to political organizations available to the public is important because it keeps the process open and transparent.” 

As you know, the DISCLOSE Act passed the House in June 2010 and was one vote short of reaching the Senate floor for consideration in July. Senate sponsors have said that the legislation will be brought up again for consideration this fall.

If this disclosure legislation does not pass in this Congress, it may not be possible to establish new disclosure requirements for the next election. Absent such disclosure requirements, hundreds of millions of dollars in secret contributions will be spent in the 2012 presidential and congressional races without voters having a clue about who is providing these funds.

Your vote can make the difference in whether the disclosure provisions of the DISCLOSE Act are enacted for future elections or whether the legislation is killed.

According to a Survey USA poll last month, 77 percent of voters, including 70 percent of Republicans and 73 percent of independents, view corporate campaign spending as an attempt to bribe politicians rather than as an expression of free speech that should not be limited.

Given the Citizens United decision, nothing can be done at this time to prevent these influence-buying expenditures from being made. But we can at least ensure that the American people know what is going on in their elections and who is behind the money being spent to influence their votes. 

If you have concerns regarding the DISCLOSE Act legislation, or have ideas to improve the provisions in the bill, we ask that you work with the bill’s sponsors and with us to resolve any concerns you may have about the legislation. 

We appreciate your leadership and commitment on past campaign finance reform efforts and look forward to negotiating changes in the DISCLOSE Act that will ensure its passage. Voters across Maine and America are very clear; they want to know who is paying to play in our political system, and they have a basic right to know this information.

Campaign Legal Center            League of Women Voters

Common Cause                        People For the American Way

Democracy 21                          Public Citizen

                                                U.S. PIRG

On September 13, 2010, the Campaign Legal Center, along with Democracy 21, wrote to the Federal Election Commission (FEC) seeking clarification and an explanation regarding statements made by FEC staff to reporters implying that the agency was no longer enforcing its own regulations regarding “express advocacy” in advertising.  If the statement and explanation offered by a FEC spokesperson are correct and in fact the policy of Commission, it would seriously undermine the public’s ability to identify those making independent expenditures in federal elections.  

[1]           Available at http://www.opensecrets.org/news/2010/08/chamber-of-commerce-other-groups-sk.html.

[2]           See, e.g., Paul S. Ryan, Wisconsin Right to Life and the Resurrection of Furgatch, Stanford Law & Policy Review Vol. 19:1, 130-163 (2008).

[3]           Affirmed, Real Truth About Obama v. FEC, 575 F.3d 342 (4th Cir. 2009) (The “language [of Subpart (b)] corresponds to the definition of the functional equivalent of express advocacy given in Wisconsin Right to Life.  . . .  By limiting its application to communications that yield no other interpretation but express advocacy as described by Wisconsin Right to Life, § 100.22(b) is likely constitutional.”) (vacated for consideration of mootness by 130 S.Ct. 2371 (2010)).

[4]           We recognize that the Chamber of Commerce ads discussed above were subject to disclosure as electioneering communication.  This fact does not, however, change our view of the importance that the Commission enforce Subpart (b) outside the electioneering communication timeframes.

Today, the U.S. Court of Appeals for the Fifth Circuit sitting en banc roundly rejected the Republican National Committee’s (RNC) challenge to the party coordinated spending limits in Cao v. FEC.  The case was filed by the RNC in 2008, challenging the party coordinated spending limits and the $5,000 political committee contribution limit as applied to party coordinated spending.  In an 11-5 decision, the Court of Appeals today upheld the party spending limits and rejected all of the plaintiffs’ claims, noting that the Supreme Court had already affirmed the constitutionality of the challenged limits in its 2001 decision in FEC v. Colorado Republican Fed. Campaign Committee.

Campaign Legal Center counsel Tara Malloy praised the decision: 

“We are pleased that the court turned away this overreaching attack on established campaign finance law and Supreme Court precedent.  Plaintiffs’ broad-side challenge would have gutted the coordinated spending limits and would have enabled large-scale circumvention of the individual contribution limits.  Anti-reformers have in essence barnstormed the country filing lawsuit after lawsuit challenging long-standing campaign finance laws in the wake of the Supreme Court’s decision in Citizens United v. FEC earlier this year.  Those attacking campaign finance reform smelled blood in the water and have assumed that no campaign finance law was safe.  Today’s decision shows that there is plenty of life left in federal campaign finance law.”  

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

To read the court’s decision, click here.

To read the brief filed in the case by the Legal Center and Democracy 21, click here.

Today’s decision of the Florida Supreme Court rejecting last minute ballot challenges to Florida’s redistricting reform initiatives (Amendments 5 and 6) clears the way for Florida voters to decide for themselves this November whether they want to stop politicians from gerrymandering themselves into safe seats.   The suit filed by Representatives Corrine Brown (D-FL) and Mario Diaz-Balart (R-FL) tried to stop voters from having their say on the amendments, which would bring about needed reform of the redistricting process.

Under Amendments 5 and 6, politicians would not be allowed to favor one political party or incumbent when drawing district lines.  The decision is a real blow to those who hold public office and use the redistricting process to keep their seats safe from potential challengers.  And the decision is a real boost to the integrity of the citizen initiative process.  For African American and Latino voters in the State of Florida, the initiative will expand the protections of minority voting rights and should bring about a fair process and less gerrymandered map in the post-2010 election cycle.

The Court also rejected a final attempt by the state legislature to reinstate it own “poison pill” Amendment 7 which a lower court ruled was nothing more than an attempt by incumbent officeholders to confuse voters and undermine the redistricting reform amendments on the ballot.  Today’s rulings were a victory for citizens over politicians seeking to retain what they see as their right to handpick constituents more likely to reelect them.  Amendments 5 and 6 now present Floridians the opportunity to send a clear message to Tallahassee and to Washington that voters should be choosing politicians, not the other way around.

To read the decision, click here.

The Campaign Legal Center, together with Democracy 21, filed comments today with the Federal Election Commission (FEC) urging the FEC to reject a request by the National Defense PAC (NDPAC) that would permit the federal PAC to raise unlimited contributions.

“NDPAC is asking the FEC to ignore a federal law that’s been on the books for nearly 40 years, as well as a Supreme Court decision from 1981 upholding that law,” said Legal Center attorney Paul S. Ryan.  “The FEC has no authority to overturn federal laws or to overrule the Supreme Court.”

 Unlike other PACs that have recently sought and received advisory opinions from the FEC allowing them to raise unlimited contributions to fund independent expenditures (e.g., Club for Growth, Commonsense Ten), NDPAC has been around for years and makes campaign contributions directly to candidates.  In fact, NDPAC is registered with the FEC as a “multicandidate political committee,” which must, by definition, make contributions to 5 or more federal candidates.

 NDPAC asks the FEC to extend the recent court decisions in Citizens United andSpeechNow—decisions that dealt with groups that exclusively made independent expenditures not contributions directly to candidates—as justification for the campaign finance deregulation of PACs that do make contributions directly to candidates.

 But federal law has for more than 35 years limited contributions to groups like NDPAC that make contributions directly to federal candidates.  In 1981, the Supreme Court upheld the limit in its CalMed decision, because PACs that make direct contributions to candidate can corrupt those candidates and could be used by donors to circumvent the limits on what donors can give directly to candidates.

 Recent court decisions in Citizens United and SpeechNow, dealing with independent expenditures, have no relevance to the constitutionality of limiting contributions to PACs that contribute to candidates—and the FEC has no authority to declare that they do.  The FEC is bound by the 1981 Supreme Court decision inCalMed upholding the contribution limit that applies to NDPAC.