On October 18, 2010, the Campaign Legal Center, along with Democracy 21, filed an amici brief in Real Truth About Obama (RTAO) v. FEC to defend FEC rules that establish when a political organization must register as a federal “political committee” and abide by comprehensive federal disclosure requirements. 

“Given the explosion of anonymous spending and secret donors in the 2010 election cycle, it is vital to protect existing disclosure laws from legal attack,” Legal Center counsel Tara Malloy said.  “The Supreme Court has repeatedly recognized that disclosure is critical to ensuring an informed electorate and preventing political corruption.  We hope the district court in this case will follow in this tradition and reject the claims asserted by the Real Truth About Obama.”

Plaintiff RTAO, a “527 organization,” filed the case shortly before the 2008 presidential election because it wished to run ads criticizing then-Democratic nominee Barack Obama’s position on abortion without disclosing its donors or complying with other federal regulations applicable to political committees.  The district court denied RTAO’s motion for preliminary relief in September 24, 2008, and that decision was affirmed by the Fourth Circuit Court of Appeals.  Due to several subsequent judicial decisions, most notably Citizens United v. FEC, the Supreme Court on April 26, 2010, vacated the Fourth Circuit’s decision and remanded the case for further consideration in light of the Solicitor General’s suggestion of mootness.

Because the intervening judicial decisions mooted two of RTAO’s claims, the case upon remand now considers only RTAO’s challenge to the FEC’s definition of “expressly advocate” (11 C.F.R. 100.22(b)), and to the FEC’s implementation of the “major purpose” test for political committee status.  This rule and policy, however, are integral to the FEC’s enforcement of the federal disclosure requirements applicable to independent expenditures and to federal political committees.

The Legal Center highlighted in its amici brief that the case upon remand concerns only disclosure, emphasizing that the Supreme Court has twice upheld, by overwhelming 8-1 votes, laws promoting political transparency in this year alone.  The amici brief further argued that Citizens United had not cast doubt on the rule and policy that remained under challenge, and urged the district court to reaffirm its earlier decision rejecting RTAO’s challenge.

Previously, the Legal Center and Democracy 21 filed amici briefs with the district court on August 14, 2008, and with the Fourth Circuit on October 28, 2008.

As Staff Director of the Office of Congressional Ethics, Leo Wise served the House with distinction and deserves great credit for putting the OCE on the right track from the beginning.  His unwavering commitment to fair and impartial investigations brought new credibility to an ethics process in Congress that had come unhinged and frankly had become a public laughingstock. 

Leo approached his job professionally and without public fanfare, allowing the facts, rather than political considerations, to be his guide. We are sorry to see him go but wish him well in his new position at the Department of Justice.   We also commend OCE Co-Chairs David Skaggs and Porter Goss for allowing Leo to do his job effectively and without political interference.   It is critical that Mr. Wise’s replacement maintain the same high standards. 

Late yesterday, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Human Life of Washington v. Brumsickle, rejecting a First Amendment challenge brought by attorney James Bopp, Jr., to Washington state laws (1) requiring groups raising and spending money to influence ballot measure elections to register as political committees and disclose contributions received and expenditures made and (2) requiring others with more limited involvement in elections to disclose independent expenditures on political advertising to influence ballot measure elections. 

“Today’s ruling was a victory for citizens over special interests and shows that campaign finance regulation is still worth fighting for in the courts where, despite some recent setbacks, even the Roberts Court has continued to recognize the vital importance of disclosure to the health of our democracy,” said Paul S. Ryan, Campaign Legal Center Associate Legal Counsel.  “As more and more anonymous special interest money is flooding into the 2010 election cycle, the Ninth Circuit ruling is particularly important in light of the fact that disclosure laws are facing challenges from coast-to-coast.”

 The Campaign Legal Center filed a brief amicus curiae in the Ninth Circuit supporting the state’s defense of the disclosure laws.  As opponents of reasonable campaign finance laws attack disclosure laws from coast-to-coast, the importance of the Ninth Circuit’s decision can not be understated.

 At the heart of the case was the appropriate level of scrutiny to be applied to campaign finance disclosure laws.  In short, when a court applies “strict” scrutiny to a law, the law will frequently be deemed unconstitutional.  By contrast, when a court applies a lesser degree of scrutiny, as it did in this case, there is a much greater chance the law will be upheld if the government can prove it has a sufficiently important reason for enacting the law.  That is why the Legal Center’s brief in the court of appeals focused first on why disclosure laws should be subject to intermediate, not strict, scrutiny. Mr. Bopp had urged the court to subject Washington’s campaign finance disclosure laws to “strict” scrutiny and declare them unconstitutional.

 The Ninth Circuit’s decision embraced the Legal Center’s call for intermediate scrutiny, explaining that “[r]ecent Supreme Court decisions have eliminated the apparent confusion as to the standard of review applicable in disclosure cases[,]” and that a campaign finance disclosure law is constitutional if it is “substantially related to a sufficiently important governmental interest.”  This victory should enable those defending campaign finance disclosure laws to prevail in future cases, especially in those states within the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA).