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.

This week the Campaign Legal Center offered testimony and submitted comments in three matters before the Federal Election Commission (FEC).  The Legal Center filed comments opposing an advisory opinion request by the National Democratic Redistricting Trust to allow Members of Congress to solicit unlimited soft money contributions for redistricting activities, submitted supplemental comments in a rulemaking on coordination between candidates and outside groups, and testified at an FEC rulemaking hearing regarding the participation of federal candidates and officeholders in nonfederal fundraising events.

 More detailed summaries, including links to the filings themselves follow. 

 CLC Files Comments with FEC in “National Democratic Redistricting Trust” Matter

On March, 15, the Campaign Legal Center, together with Democracy 21, filed comments with the FEC in regard to the Advisory Opinion Request (AOR 2010-03) submitted by the National Democratic Redistricting Trust seeking the Commission’s opinion as to whether “Members of Congress may solicit funds for the Trust outside the limits and source restrictions prescribed by” federal campaign finance laws to pay attorneys fees and other costs associated with the legislative redistricting process that will follow the 2010 census.

The Legal Center urged the FEC to advise that federal law prohibits federal candidates and officeholders from soliciting nonfederal funds (i.e., soft money) in connection with any election—and that redistricting is most certainly connected to elections.  The Legal Center pointed out that both the FEC and the Democratic National Committee correctly argued in their briefs filed recently in Republican National Committee v. FEC—a lawsuit by the RNC challenging the federal law ban on parties raising soft money for redistricting and other purposes—that redistricting activities occur “in connection with elections.”  For the FEC to decide otherwise in this advisory opinion proceeding, we argue, would be inconsistent with, and severely undermine, the FEC’s current position before the court in theRNC case.

 [Executive Director J. Gerald Hebert took no part in the Legal Center’s consideration of this matter.]

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

CLC Files Supplemental Comments with FEC Following “Coordination” Rulemaking Hearing

On March 15, the Campaign Legal Center, together with Democracy 21, filed supplemental comments with the FEC in response to questions posed by Commissioner McGahn to Paul S. Ryan of the Campaign Legal Center at the Commission’s March 3 rulemaking hearing regarding coordinated communications under 11 C.F.R. § 109.21.  Commissioner McGahn posed a series of hypothetical scenarios to Ryan at the hearing.  The CLC’s comments filed this week explain why the various hypotheticals would not fall within the “coordination” rule advocated by the CLC (employing the so-called PASO standard).

The Legal Center further suggested in its supplemental comments that, in addition to crafting clever hypotheticals that seek to probe the outer limits of the proposed PASO coordination rules, the FEC should actually consider real life ads that fall squarely within the heartland of the PASO test.  The FEC should be asking whether such ads should be excluded from the coordination rule outside the pre-election time frames, and whether, consequently, candidates should be permitted to freely coordinate with outside spenders on the content and airing of such ads that overtly promote a candidate’s campaign.  This is a real question—not a hypothetical—which the Commission completely ignored at its March 3 hearing.  Many witnesses were advocating the adoption of a much narrower “express advocacy” standard—and none of those witnesses were subjected by Commissioner McGahn or any other Commissioner to questions about such real-life PASO ads, more than a hundred examples of which were submitted to the FEC by the Legal Center in its last “coordination” rulemaking.  We urge the Commission to consider the impact of its proposed rules on such real-life ads before it adopts a final rule.

To read the supplemental comments on NPRM 2009-23, click here.

CLC Attorney Testifies at FEC Rulemaking Hearing on Participation by Federal Officeholders at Non-Federal Fundraising Events

On March 16, the CLC’s FEC Program Director Paul S. Ryan testified at the FEC’s rulemaking hearing on proposed revisions to its regulations regarding participation by federal candidates and officeholders at nonfederal fundraising events under 11 C.F.R. § 300.64.  The FEC was required by the D.C. Circuit Court’s decision in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”), to repeal its regulation allowing federal candidates and officeholders to speak “without restriction” (e.g., solicit soft money) at state, district and local party fundraising events.

The Bipartisan Campaign Reform Act of 2002 (“BCRA”) provides that federal candidates and officeholders may not “solicit, receive, direct, transfer or spend” funds unless the funds comply with the amount limitations and source prohibitions of the Federal Election Campaign Act.  Notwithstanding this restriction, BCRA also states that federal candidates and officeholders are permitted to “attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party.”  Despite clear congressional intent to prohibit—and clear statutory language prohibiting—federal candidate and federal officeholder soft money fundraising in connection with state and local elections, the FEC in its 2002 rulemaking to implement these provisions concluded that federal candidates and officeholders were permitted to attend, speak, and appear as featured guests at State, district, and local party committee fundraising events “without restriction or regulation.”

 This rule was challenged and invalidated by the D.C. Circuit in Shays III.  In its rulemaking to comply with the Shays III decision, the FEC is considering three alternative approaches.  One would simply repeal the invalidated regulatory language, while the other two would elaborate on how federal candidates and officeholders may participate in nonfederal fundraisers and in pre-event publicity without violating the soft money solicitation ban.  The CLC endorsed simply removing the invalidated language from the FEC’s rules as the simplest, most straightforward means of complying with the Shays III decision, but did not oppose the Commission’s adoption of either of the other two alternatives.  All three alternatives, the CLC believes, comply with the Shays III court’s order and are permissible interpretations of the statute.