RNC v. FEC

Today the Campaign Legal Center and other reform groups urged the House of Representatives to pass H.R. 5175, the DISCLOSE Act as Leadership weighs bringing the legislation to the floor for a vote this week. The legislation was introduced by Representatives Chris Van Hollen (D-MD) and Mike Castle (R-DE) in response to the controversial Supreme Court decision in Citizens United v. FECwhich opened the door for corporations and unions to spend their treasury funds in federal elections.

The DISCLOSE Act would require timely and effective disclosure of these campaign-related expenditures, among other provisions. A Washington Post-ABC News poll shortly after the Supreme Court's ruling found that 8 in 10 Americans opposed the decision and that 72 percent backed congressional action in response.

In a telegram to the House, the groups recommended a yes vote on the bill and the Manager's amendment. Signers included the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters and Public Citizen.

The full text of the telegram follows below.

Dear Representative:

Our reform organizations support passage of H.R. 5175, the DISCLOSE Act.

We strongly urge you to vote for H.R. 5175 and the Manager's Amendment that accompanies the legislation, and to oppose any amendments to the bill that would weaken, undermine or gut the legislation.

Campaign Legal Center

Common Cause

Democracy 21

League of Women Voters

Public Citizen

Today the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission regarding the Commission's two alternative draft responses to an advisory opinion request by Citizens United seeking the "media exemption" from federal campaign finance disclosure laws for its "documentary" filmmaking (Draft Advisory Opinions 2010-08). The Commission is scheduled to consider this matter at its meeting tomorrow, June 10.

The federal law "media exemption" applies to a "press entity" not owned or controlled by a political committee or candidate that is acting in its "legitimate press function" by distributing a news story, commentary or editorial through the facilities of a broadcasting station.

Both draft opinions wrongly conclude that Citizens United is a "press entity" entitled, as such, to exemption from federal campaign finance disclosure requirements for all ("Draft A") or some ("Draft B") of its proposed activities.

The Supreme Court in its recent decision in Citizens United v. FEC upheld federal law disclosure requirements as applied to Citizens United by an 8-1 vote. The Court rejected Citizens United's claim "that Hillary is just 'a documentary film that examines certain historical events." Instead, the Court said the group's movie "in essence, is a feature-length negative advertisement that urges viewers to vote against Senator Clinton for President." Now, in the immediate wake of the Citizens United decision, with no change in its activities, Citizens United attempts to re-cast itself from an advocacy organization into a "press entity" in order to seek an exemption from the same disclosure requirements that the Court held can and do apply to it.

As we make clear in the comments we filed today, Citizens United is not a "press entity" but rather is, as it describes itself, an advocacy organization. Accordingly, its activities do not qualify for the media exemption.

If the Commission determines that a classic advocacy organization like Citizens United acquires the protections of the media exemption merely by producing a handful of films in furtherance of its advocacy mission, the unbounded nature of that determination will open the door for any and all advocacy groups to obtain an exemption from the campaign finance laws. To do so would seriously undermine the campaign finance laws, in direct contravention of the Commission's obligation to protect the integrity and efficacy of the laws it is charged with administering.

In a letter sent today, a coalition of reform groups urged Speaker of the House Nancy Pelosi to stand behind the Office of Congressional Ethics (OCE) against the latest challenge by Members seeking to undermine the OCE. The groups expressed their continued support of the OCE which has helped to revitalize a discredited and long dormant ethics process.

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

The full letter follows below.

June 9, 2010

Speaker of the House of Representatives

U.S Capitol

Washington, D.C. 20515

Dear Speaker Pelosi:

Our organizations are writing to express our strong support for the Office of Congressional Ethics (OCE) and our opposition to the efforts being undertaken by some Members to undermine the House rules that established the Office.

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

We have applauded your past recognition of the need for the OCE and your strong and effective leadership in pressing for its establishment in the last Congress. We urge you to continue your strong support for the OCE and to oppose the predictable efforts by some Members to cripple the Office.

To date, the OCE has made important progress in restoring the shattered credibility of the House ethics enforcement process.

The resolution recently introduced by Representative Marcia Fudge (D-OH) would undo what has been accomplished and return the House to an era when potential ethics violations disappeared into the files of the House Ethics Committee, without explanation or public accountability for the Committee's inaction.

The Fudge resolution would usher in a period of more secrecy, less transparency, less accountability and less trust in the House's ability to police its own ethics rules and standards.

Representative Fudge is quoted as saying, "O.C.E. is currently the accuser, judge and jury. This isn't the case in the American justice system, and it shouldn't be so in Congress."

That is an inaccurate portrayal of the duties and responsibilities that the House assigned to the OCE. The much more limited role of the OCE is to conduct preliminary investigations of potential ethics violations and to recommend to the House Ethics Committee either dismissal of such matters or further investigation of the matters by the Committee.

In fact, it is the pre-OCE system that posed the conflicts described by Representative Fudge where only House members could trigger ethics investigations and where only the Ethics Committee served as investigator, prosecutor, judge and jury in an ethics case. That is the system that resulted in a publicly discredited and ineffectual House ethics enforcement process.

We believe it was essential for the OCE to be established to inject an element of independence, transparency and credibility into the ethics enforcement process and the Office has done just that.

In fact, the OCE cannot make recommendations about whether an ethics violation has occurred, cannot judge a case, cannot find ethics violations have occurred and cannot sanction a Member for ethics violations. And the OCE has not tried to do so.

All the OCE can do is conduct a preliminary investigation and make recommendations to the House Ethics Committee as to whether the Committee should further investigate the matter. It cannot recommend any other action by the Ethics Committee or the House.

The OCE does make a report to the Ethics Committee on the findings of its preliminary investigation, which cannot include any findings regarding whether ethics violations have occurred. If the OCE recommends further investigation by the Ethics Committee and the Committee instead dismisses the matter, the report becomes public. This is the core provision in the new ethics enforcement process for ensuring public accountability for House Ethics Committee determinations.

The Fudge resolution would require that in order to even begin a preliminary investigation, the OCE would have to receive a sworn complaint from a citizen asserting personal knowledge of any alleged violation. This is an impossible standard to meet as a practical matter and it would shut down the OCE. Citizens and groups concerned about potential ethics violations are almost never going to have "personal knowledge" about the violations unless they participated in them.

This prerequisite in the Fudge resolution defies our system of justice and would impose on the OCE a far more onerous standard than has been imposed on the House Ethics Committee, which has long had the authority to initiate ethics investigations on its own authority.

As a general matter of enforcing laws and rules, it is not required for investigative bodies to have a sworn statement from an eye witness before an investigation can even begin. A case need not be proven before an investigation can be initiated. That is the purpose of the investigation. Enforcement bodies initiate investigations based on credible evidence, including information provided to the body, press stories, and other reports.

To raise the threshold for the OCE to conduct a preliminary investigation to this unique and unreasonable standard has one purpose and one purpose only -- to shield Members of Congress from ethics investigations and enforcement.

The resolution also seeks to silence the OCE by prohibiting public release of its reports if the Ethics Committee votes to dismiss a case or the Committee deadlocks in a tie vote. The public release of OCE reports in these circumstances, however, is essential to providing public accountability for House Ethics Committee actions.

This provision in the Fudge resolution would allow the Ethics Committee to dismiss or bury cases with impunity and without any public knowledge about what happened to an alleged ethics violation or why it happened. It would return the House to the old, discredited ethics process that caused all the problems in the first place and that publicly discredited the House as an institution.

The American public has long been concerned that Congress does not provide the same kind of enforcement for the rules that govern its own Members as it requires for the laws that apply to the rest of us.

Your leadership in the establishment of the OCE has resulted in a marked improvement in the House ethics enforcement process. The OCE has had an impressive and successful track record in the first Congress of its existence.

We strongly urge you to continue your strong support for the OCE and to oppose any efforts to weaken or undermine this important Office.

Campaign Legal Center

Common Cause

Democracy 21

League of Women Voters

Public Citizen

U.S PIRG

On the eve of a possible floor vote on the DISCLOSE Act (H.R. 5175), reform groups today urged House Members to support the legislation introduced by Representatives Chris Van Hollen (D-MD) and Mike Castle (R-DE). The legislation was crafted in the wake of the Supreme Court's controversial decision in Citizens United v FEC which opened the door for corporations and unions to spend their treasury funds in federal elections. The bill would require timely and effective disclosure of their campaign-related expenditures and the funding behind those activities.

The Campaign Legal Center, joined with Democracy 21, the League of Women Voters and Public Citizen in asking Members to vote for the Van Hollen-Castle legislation.

The full letter follows below:

May 27, 2010

Dear Representative,

Our organizations urge you to vote for the Van Hollen-Castle legislation to require timely and effective disclosure by corporations, labor unions, trade associations and non-profit advocacy groups of their campaign-related expenditures and the funders of these expenditures.

The organizations include the Campaign Legal Center, Democracy 21, the League of Women Voters and Public Citizen.

This critical bipartisan disclosure legislation is fair and equitable, and applies in the same manner to the groups covered by the bill.

The Van Hollen-Castle bill follows the recent 5 to 4 decision by the Supreme Court in Citizen United v. Federal Election Commission . The decision ignored two decades of past Supreme Court decisions to strike down a law in existence for more than 60 years that banned spending of corporate treasury funds to influence federal elections. The decision also had the practical effect of striking down the similar ban on labor union spending in federal elections.

The Court's overreaching and indefensible judicial activism in Citizens United was contrary to the positions taken by past Presidents, past Congresses and the Supreme Court over the last 20 years, all of whom concluded that the corporate spending ban was necessary to prevent corruption and the appearance of corruption.

At the same time, the Supreme Court in the Citizens United decision, by an 8 to 1 vote, made very clear that it is constitutional and appropriate to require the disclosure of corporate and labor union spending to influence federal elections.

The Supreme Court stated in Citizens United that disclosure and disclaimer requirements "do not prevent anyone from speaking," and disclosure "permits citizens and shareholders to react to the speech of corporate entities in a proper way."

The Court further stated:

"With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are "'in the pocket' of so-called moneyed interests." 540 U. S., at 259 (opinion of SCALIA, J.); see MCFL, supra, at 261. The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

Congress must move quickly to enact this legislation in order to make it effective for the 2010 elections.

We urge you to vote for the Van Hollen-Castle legislation and to oppose any efforts to undermine or weaken the provisions in the legislation.

Campaign Legal Center

League of Women Voters

Democracy 21

Public Citizen