It is time for the House to hold hearings on redistricting reform legislation currently pending in the 111^th Congress. The issue is of huge importance to our democratic process and yesterday's endorsement of the legislation by the Blue Dog Coalition lends weight to the calls to reform the process before the 2010 Census and subsequent round of predictable extreme political gerrymanders.

For several Congresses running, legislation to curb these abuses has been referred to committee and left to die quietly without so much as a hearing. With the 2010 Census fast approaching and no redistricting reform ballot initiatives pending in California, it is time for Speaker Nancy Pelosi (D-CA) to green light hearings on the Fairness And Independence in Redistricting (FAIR) Act (H.R. 3025) introduced by Representatives John Tanner (D-TN) and Mike Castle (R-DE) last month.

Let's be clear: both Republicans and Democrats alike abuse the process for political advantage but it is the Democrats who are driving the bus in Washington today. We hope Speaker Pelosi will urge Chairman Conyers and the Judiciary Committee to hold hearings and advance the issue before the commencement of another shameless round of gerrymandering which allows incumbent House Members to handpick their constituents.

It is the voters who should be selecting their elected Representatives in Congress, not the other way around.

The way most states draw congressional districts must change if we are to break the partisan gridlock in Washington. Representatives John Tanner (D-TN) and Mike Castle (R-DE) and Senator Tim Johnson (D-SD) are to be commended for moving the ball forward on reforming this process with the introduction of the Fairness And Independence in Redistricting (FAIR) Act. They clearly recognize that our current system is broken and must be addressed and addressed quickly. The gerrymandering clock is ticking loudly.

Redistricting reform must occur in the 111th Congress or the next round of gerrymanders will begin anew in the wake of the 2010 Census. Our representative democracy is undermined each time politicians get to handpick their voters instead of voters choosing their elected officials. No good comes of seats that are intentionally drawn so as to be so uncompetitive they ensure re-election for incumbents. These "safe seats" feed voter apathy, drive down turnout on Election Day, and produce incumbents who are more likely to face their only real competition from the fringes of their own party. This only serves to widen the distance between Republicans and Democrats in Congress.

The current system is a terrible disservice to the citizens of this country and a gross distortion of the democracy envisioned by the founding fathers for the legislative branch. The time to fix this system is now. It will be too late if we wait for the inevitable public outrage that will follow the next wave of gerrymanders. The time to act is now.
 

The nomination of John Sullivan by President Obama to a seat on the FEC is cause for concern. Mr. John Sullivan's only known statements on campaign finance issues have been made to the FEC on behalf of the union that employs him. While lawyers are of course obligated to represent their clients, the gusto with which Mr. Sullivan has bashed important elements of McCain-Feingold and repeatedly taken radical deregulatory positions does not inspire confidence that he will have different views if confirmed to the Commission.

More important is the question of what Mr. Sullivan's nomination says about President Obama's promises to change Washington and reform the FEC: certainly this nomination is a strange way to initiate such change. If the White House is serious about improving the FEC, it will need to fill the two other vacancies on the Commission with people who will shake it up, not fit right in to the status quo.

The Campaign Legal Center has long advocated the strengthening of campaign finance law enforcement through replacement of Commissioners who all-too-often express hostility toward the very laws they're charged with enforcing with Commissioners who, instead, believe in the agency's mission of enforcing the money-in-politics regulations that Congress has enacted. And lacking faith that any administration would truly bring the change that is needed, we have advocated a total restructuring of the agency by Congress.

But far from endorsing enforcement of Congress' campaign finance regulations, President Obama's nominee for the Commission, labor union lawyer John Sullivan, has over the years encouraged radical deregulation of campaign finance by the FEC. The fact that he has also worked for reform of the voting process is of little help, since that is the province of the Election Administration Commission, not the FEC.

In October 2007, for example, Sullivan filed comments in the FEC's rulemaking proceeding to modify its "electioneering communication" regulations in the wake of the Supreme Court decision in Wisconsin Right to Life (WRTL)-urging the Commission to go far beyond the Court's ruling by ceasing to enforce "electioneering communication" disclosure requirements not even challenged, let alone invalidated, in WRTL. Sullivan's urging of deregulation in the post-WRTL rulemaking was so radical that not even the most visible, well-known opponents of campaign finance restrictions supported it. For example, while the adamantly deregulationist Center for Competitive Politics urged the Commission to wait for a court decision actually invalidating the disclosure requirements before ceasing to enforce them (click here), Sullivan urged the Commission to cease enforcement of the disclosure requirements enacted by Congress and upheld by eight members of the Supreme Court in McConnell v. FEC. Fortunately, the Commission rejected Sullivan's advice and properly confined its rulemaking to the issues actually litigated in WRTL.

Sullivan's deregulatory approach to campaign finance law was also on display in 2006, when Sullivan filed comments in an FEC rulemaking on "coordinated communications." The Commission was conducting the rulemaking as a result of the federal Circuit Court of Appeals decision in Shays v. FEC, in which the court criticized the Commission because it "offered no persuasive justification" for the time-frame utilized in its coordination rule and "the weak restraints [i.e., an 'express advocacy' test] applying outside of it." The Circuit Court reasoned that the Supreme Court in McConnell had described the "express advocacy" test as "functionally meaningless" because it is so easily evaded and that, "by employing a 'functionally meaningless' standard . . . , the FEC has in effect allowed a coordinated communication free-for-all for much of each election cycle." Yet Sullivan, in his comments to the Commission, expressed "serious doubts about the validity of any [coordination] content standard that includes more than express advocacy and electioneering communications." Unfortunately, the Commission heeded Sullivan's advice and re-promulgated a coordination rule with the same flaw identified by the court-the rule relied on the "functionally meaningless" and easily evaded "express advocacy" standard. Consequently, the Commission was sued yet again-and yet again, the D.C. Circuit Court of Appeals struck down the Commission's rule because it relied on the "express advocacy" standard. The court used even harsher language in its critique of the coordination rule second time round, noting that the rule "allows candidates to evade-almost completely-BCRA's restrictions on the use of soft money." The court further explained: "Thus, the FEC's rule not only makes it eminently possible for soft money to be 'used in connection with federal elections,' but it also provides a clear roadmap for doing so, directly frustrating BCRA's purpose." (internal citation omitted) Alarmingly, the Commission has been under federal court order to rewrite this invalidated rule since 2007 and has not yet even initiated the rulemaking. So President Obama's nominee to the Commission, if confirmed by the Senate, will play a critical role in rewriting the coordination rule for the third time since the 2002 passage of the McCain-Feingold law.

If John Sullivan's past advice to the FEC is any indication of the manner in which he would perform the duties of an FEC Commissioner then his nomination to the Commission is a far cry from the "change" promised by President Obama on the campaign trail and in the months since being elected. Quite frankly, we hoped for far more. Mr. Sullivan now has to show that the radical positions he advocated were those of the union that employs him, and that he'll be a far different Commissioner than he has been an advocate before Commission. And the President has yet to show that the change he advocated, including reform of the FEC, will become a reality in this Administration.

April 15, 2009

The Honorable Eric Holder, Jr.

Attorney General

U.S. Department of Justice

950 Pennsylvania Ave., N.W.

Washington , D.C. 20530

Dear Attorney General Holder:

I am writing to request that you take immediate steps to remove the current leadership of the Public Integrity Section until both the Office of Professional Responsibility and the criminal contempt proceeding before U.S. District Judge Emmet Sullivan is completed. In order to safeguard the integrity of a long list of other investigations and prosecutions, those who oversaw the failed prosecution of Senator Stevens should immediately be placed either on administrative leave or temporarily reassigned to other posts. Upon completion of the inquiries, I urge you take appropriate action as necessary to restore integrity to the Office of Public Integrity.

Shortly after your swearing in, you took quick action to replace the prosecution team on the Senator Stevens case. I commend you for taking that step. Thereafter, you announced on April 1, 2009, that following your review of the case and an examination of information that should have been provided to the defense for use at trial, it was in the interests of justice that the indictment should be dismissed rather than proceed with a new trial.

The Department's Office of Professional Responsibility is currently conducting "a thorough review of the prosecution of this matter." In the meantime, however, the persons who currently lead the Office of Public Integrity, Mr. William Welch and Ms. Brenda Morris, continue to serve as chief and deputy chiefs of that section while this matter is under review.

I call upon you to replace these two persons now, pending the outcomes of your review and Judge Sullivan's criminal contempt proceeding. Just as a police officer is placed on administrative leave following a shooting in the line of duty, so too should these prosecutors be removed from their supervisory authority pending the outcome of the OPR review. Doing so now makes no determination as to whether they are guilty of any wrongdoing. What it does, and what is needed until the cloud of impropriety that hangs over the Office of Public Integrity is removed, is to give assurances that ongoing important investigations and prosecutions are being handled and supervised by persons whose alleged prosecutorial misconduct are not under investigation.

I am attaching a chart that lists some of the more high profile criminal investigations and prosecutions that the Office of Public Integrity likely is playing a role. A number of these have been pending for far too long and seem to have languished in the Office of Public Integrity. In your April 1 statement, you said "The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice." Taking bold action now to replace the leadership of the Public Integrity Section will give the American people confidence that the important cases being supervised by that office are being reviewed by attorneys who are not tainted by this scandal and are not focused on the major ethical and criminal inquiries that surround them.

At a time when the Obama Administration and Congress are seeking to restore the faith of the American people in their government, the potential prosecutions of public officials should not be jeopardized by association with the scandal that led to the reversal of Senator Stevens' conviction despite ample evidence of his guilt. As I am sure you are painfully aware, the lawyers for current and future defendants will make much of those proceedings. Placing the supervisors on administrative leave or temporarily reassigning them until the investigations of their actions are complete will serve to mitigate potential collateral damage.

I hope that you will see fit to take these precautions in order to help restore the confidence of the nation in its government as a whole and in the Department of Justice in particular.

Thank you for your time and consideration of this important matter.

Sincerely,

J. Gerald Hebert

Attorney General Eric Holder's announcement yesterday that, after reviewing the record and based on the totality of circumstances, he was going to seek dismissal of the original indictment against convicted former Senator Ted Stevens (R-AK) raises serious questions and concerns.

The motion filed by the Government in the case today and other allegations of prosecutorial misconduct in the case are gravely serious and must be fully addressed. But the outright dismissal of an indictment rather than agreeing to a new trial is such an extreme measure that it warrants additional explanation. What is it about the information that now justifies outright dismissal of the indictment with prejudice?

Today, the Government filed a motion in the U.S. District Court for the District of Columbia to dismiss the indictment with prejudice. That filing details more background on the Attorney General's announcement. The Government notes in its filing that there were interview notes of a key witness that were not provided to Senator Stevens or his counsel. Such notes clearly should have been provided, and as the Government correctly notes, "[h]is information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury." The Government also observes, correctly in my view, that "Given the facts of this particular case, the Government believes that granting a new trial is in the interest of justice. See Fed. R. Crim. P. 33(a)."

But the Government's filing goes on to say that "[t]he Government has further determined that, based on the totality of circumstances and in the interest of justice, it will not seek a new trial. Accordingly, pursuant to Fed. R. Crim. P. 48(a), the Government moves to set aside the verdict and dismiss the indictment with prejudice."

Why? What other circumstances are there that would justify a dismissal of an indictment after a conviction, especially in a case that is one of the most high profile public corruption trials in years? The withheld evidence undoubtedly would have been of great use to defense counsel at trial. Defense counsel could have challenged the witness's truthfulness by pointing out the inconsistency between his trial testimony and the statements he made to prosecutors when interviewed. Perhaps it might have resulted in an acquittal of the defendant. But a prior inconsistent statement, even of a key witness, is likely not the only reason that our nation's chief law enforcement officer would authorize prosecutors to seek a dismissal of an indictment after conviction, especially in a high profile case like this.

Perhaps the totality of circumstances here includes the fact that Senator Stevens is out of office and he's 85 years old. But it must be remembered that he was prepared (if he won re-election) to serve another 6-year term. And he was prepared to reap the benefits and rewards of a U.S. Senator for six more years even in the face of compelling evidence that he made false statements and got caught accepting gratuities that he failed to report. Perhaps at the April 7 hearing, we'll know more about the Government's decision.

I cannot say that I disagree with the decision to dismiss the indictment. The Attorney General has all the information in front of him and is in the best position to make that judgment of prosecutorial discretion. But additional explanation would be helpful.

In any event, one thing we can all agree on is this: the prosecutorial misconduct in this case was very, very serious and should be thoroughly investigated. AG Holder has said that the Office of Professional responsibility will conduct such investigation and presumably, appropriate action will be taken. The Department's filing today informs the trial judge, who was rightfully outraged by the prosecution's misconduct, that he will be informed of the results of that investigation and the actions taken. Presumably, the state bar for each of the prosecutors will also be informed of the results as well.

We also need more from the Attorney General than what we have received thus far. We need his assurances that the public integrity section of the Department of Justice's Criminal Division is now being supervised to a degree that pending investigations ( e.g ., arising out of the Abramoff scandal, Rep. Jefferson, Rep. Doolittle, etc.) are not at risk of being thrown out for similar prosecutorial misconduct.

March 19, 2009

Dear Senator:

The Campaign Legal Center has reviewed S. 482, the Senate Campaign Disclosure Parity Act, introduced by Senator Russ Feingold (D-WI), which would require Senate candidates to file campaign finance disclosure reports in electronic form with the Secretary of the Senate. We have also reviewed an unrelated amendment expected to be offered to S. 482 that has previously served as a "poison pill" and helped to scuttle earlier efforts to enact electronic disclosure for Senators.

Our organization is a non-partisan Washington-based legal institute with particular expertise in government ethics and issues of campaign finance law and lobbying regulation. The Legal Center offers nonpartisan analyses of issues and represents the public interest in administrative, legislative and legal proceedings. We also monitor the Federal Election Commission's activities and enforcement of the law.

Under S. 482, upon receipt of the campaign finance reports the Secretary would be required to forward the electronic reports to the FEC within one working day. The FEC is required to make available on the Internet within 24 hours any filing it receives electronically. If the bill is enacted, electronic versions of Senate reports would be available to the public within 48 hours of their filing.

Currently, campaign finance reports for Senate candidates are submitted only in paper form, while reports for House and Presidential candidates and other political committees are filed electronically. The majority of states have already adopted mandatory electronic filing for state candidates. Senate candidate reports, after being filed in paper form, must be scanned by hand and uploaded into a database for purposes of public disclosure. In addition to uploading scanned images of Senate disclosure reports, contributor information for Senate candidates is also manually keyed into the FEC disclosure database, but candidate expenditure data is not. This cumbersome practice, largely done by a paid contractor, costs taxpayers more than $250,000 annually and results in delayed and incomplete disclosure, which can be particularly detrimental close to an election. Disclosure is delayed because the process of manually entering the data often takes more than a month. Disclosure is incomplete because only contribution data, not expenditure data, is keyed into the database and therefore searchable. Furthermore, the re-entry of data by hand increases the error rate. Most candidates already use electronic software to prepare their campaign finance reports—including free FEC software—but then spend money to print out and copy the reports and mail them in.

We understand that Senator Pat Roberts (R-KS) has indicated that when S. 482 is brought to the Senate floor, he is planning on offering an amendment dealing with an unrelated issue concerning Senate ethics procedures. The amendment is expected to be similar to one proposed last Congress by Senator John Ensign (R-NV). That amendment sought to attach a measure to the electronic filing bill that would require full donor disclosure by any organization that files an ethics complaint against Senators. The Legal Center examined this amendment when it was filed in the last Congress. Our analysis found that the ethics amendment is unnecessary and potentially unwise as it would force organizations that file ethics complaints to publicly reveal their significant donors. While it is understandable that some sitting Senators would find it attractive to scare off potential ethics complaints, such a move would damage the ethics process. It is more likely to be used as a tool of intimidation than as a source of needed or valuable disclosure. Moreover, this proposed change in the Senate ethics rules is not germane to the underlying bill dealing with timely public disclosure of campaign finance contributions.

The changes proposed in S. 482 would resolve the problems that result from the currently inefficient and inaccurate Senate disclosure process. Electronic disclosure ensures that citizens have timely access to campaign finance information about Senate candidates that they are entitled to receive in order to inform their election day decision-making.