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.

Citizens for Responsibility and Ethics in Washington (CREW) and the Campaign Legal Center (CLC) wrote to the Department of Justice today asking for an investigation into whether the Chamber of Commerce (the Chamber) and its president, Tom Donohue engaged in criminal violations of campaign finance law.

In September 2004, CREW filed a complaint with the Federal Election Commission (FEC) alleging the Chamber and Mr. Donohue violated the Federal Election Campaign Act (FECA) by making $3 million in illegal corporate contributions to the November Fund, a 527 organization set up as a vehicle to attack John Edwards, then the Democratic nominee for vice-president.

Over four years later, in December 2008, CREW finally received a letter from the FEC explaining that back in 2005, the FEC had found reason to believe Mr. Donohue and the Chamber had violated campaign finance law. In November 2007, the FEC began negotiating a settlement, but in 2008, the commissioners were evenly split on party lines as to how to proceed, so they closed the matter without taking action.

The commission didn't inform CREW of its action until December 2008, leaving CREW only five days under the statute of limitations to file a lawsuit to force the FEC to take action. Even then, the FEC failed to provide CREW with the Republican commissioners' legal explanation for the decision to drop the matter, information CREW would have needed to file suit.

Afraid the Chamber and Mr. Donohue would get off scot-free for clearly illegal conduct, CREW asked DOJ to investigate whether the corporate contributions made by the Chamber and Mr. Donohue violated criminal law.

The Bush administration justice department responded it had no jurisdiction to investigate because the FEC had not found a legal violation. Finding this argument patently ridiculous, CREW and CLC sent a letter to new Attorney General Eric Holder, Jr. asking him to reconsider DOJ's earlier decision.

Melanie Sloan, CREW's executive director said, "Since when does the Department of Justice rely on the notoriously ineffectual and partisan FEC to begin investigating anyone or anything? We hope Attorney General Holder agrees that those who knowingly make corporate contributions in violation of the law must be held accountable for their actions."

"President Obama and Attorney General Holder have promised to restore the integrity of the Justice Department and investigating these allegations of abuse of campaign finance laws on such a massive scale is a good place to start," said J. Gerald Hebert, Executive Director of the Campaign Legal Center. "The Bush Justice Department chose to turn a blind eye toward millions of dollars in illegal political contributions by the U.S. Chamber of Commerce, the Obama Justice Department having promised change must do better."

To read the letter sent to DOJ by CREW and CLC, click here.

Below for your information is a letter submitted at the request of the Senate Rules Committee following yesterday's hearing concerning voter registration problems during the 2008 election cycle. The letter outlines the case against Waller County, Texas for violations of the Voting Rights Act in order to suppress voter registration efforts by students of historically black Prairie View A&M University. The Campaign Legal Center represented Prairie View students in the matter.

March 13, 2009

The Honorable Charles E. Schumer

The Honorable Bob Bennett

Senate Committee on Rules & Administration

305 Russell Senate Office Building
Washington, DC 20510

Dear Chairman Schumer and Ranking Member Bennett:

I am writing as a follow-up to yesterday's Senate Rules Committee hearing on problems associated with voter registration during the 2008 election cycle. Although we have made progress over the years in fits and starts, there continue to be real and ongoing problems surrounding voter registration that need to be addressed. You have heard testimony regarding problems faced by citizens attempting to register to vote across the country. I would like to offer one more unfortunate example for the record from Waller County, Texas, that the Campaign Legal Center became involved in during the 2008 election season.

During the 2008 election cycle, students at historically black Prairie View A & M University (PVAMU) in Waller County, Texas encountered significant barriers to becoming registered voters. The Campaign Legal Center provided legal counsel to a number of students at the historically black university who believed that their voter registration applications were being rejected for racially discriminatory reasons. Upon investigation, the Campaign Legal Center concluded that the actions of Waller County officials violated the Voting Rights Act of 1965. There had been many previous complaints about the unnecessary obstacles to voter registration being placed in the way of PVAMU student voters. It was widely known that the Department of Justice had been investigating these problems for the last few years. Consequently, representatives of the Campaign Legal Center met with Department of Justice officials in the summer of 2008 and urged the Department to take action against Waller County on behalf of the students there. Legal Center attorneys provided the Departmental attorneys with a draft complaint that the Legal Center was prepared to file in court if DOJ officials refused to take action. The complaint outlined the significant hurdles erected in violation of the Voting Rights Act by Waller County officials attempting to keep PVAMU students from exercising their right to vote. 

In the fall of 2008, the United States Department of Justice filed a lawsuit against Waller County for violations of the Voting Rights Act. The violations concerned various aspects of Waller County's racially discriminatory voter registration process. Specifically, the Justice Department identified several new voter registration procedures that had been implemented by Waller County election officials in violation Section 5 of the Voting Rights Act (known as the preclearance requirements). These changes in voter registration procedures included numerous barriers that Waller County officials had erected and which were aimed at PVAMU students, particularly those students who had volunteered to serve as deputy voting registrars. These barriers included: refusing to accept voter registration applications submitted by a voluntary deputy registrar that the registrar's staff deemed incomplete; requiring the voluntary deputy registrar to personally notify each such applicant of the rejection; and imposing limitations on the number of voter registration documents that voluntary deputy registrars could obtain to facilitate voter registration. The Department of Justice also alleged that Waller County election officials violated federal law because, in processing voter registration applications, county officials rejected applications of Prairie View students for arbitrary reasons that were not authorized by state law (such as failure to include a zip code and other hyper-technical reasons).

On October 17, 2008, a consent judgment and decree was agreed upon by the United States Department of Justice and Waller County officials, and approved by the federal court. The agreement provided far ranging relief for African-American students at PVAMU. Under the settlement agreement, Waller County officials admitted that it had made several changes in its voter registration procedures in violation of the Voting Rights Act. The County also admitted that its rejection of PVAMU voter registration applications that were inconsistent with Texas law violated 42 U.S.C. 1971(a)(2)(B). Under the consent judgment, Waller County agreed to review previously rejected applications within seven days of the settlement agreement, and county officials were required to notify PVAMU students in sufficient time that they could cast ballots on Election Day 2008. Also, as part of the settlement, election officials in Waller County agreed to develop by December 1, 2008, a training program for voluntary deputy registrars, including appropriate written materials, for purposes of improving the training of the Waller County voting registrar's staff and existing and future voluntary deputy registrars. The consent judgment also required Waller County officials to coordinate with PVAMU officials to hold twice-annual events, on the PVAMU campus, at which students can become voluntary deputy voting registrars and receive training on the proper procedures for the program. Copies of the complaint filed by the Justice Department, as well as the Consent Judgment and Decree, are attached for your information.

The settlement agreement was a major step forward in making registration and voting opportunities equally available to all Waller County residents, especially the students at PVAMU. It will need to be monitored closely by DOJ in the days ahead to ensure compliance.

As the Waller County case clearly illustrates, problems in voter registration procedures are not a thing of the past. We must do all that we can to eradicate impediments to registration and voting - starting with a clear and accessible voter registration process.

Thank you for the opportunity to share our views.

Sincerely,

J. Gerald Hebert

Executive Director & Director of Litigation

Campaign Legal Center

The decision is disappointing and seems to open the door to still more packing of minority voters into fewer districts so as to minimize the number of political races their votes will impact and thus diluting their political voice. It remains to be seen how this decision will influence the next round of redistricting and we will hope for the best. But it seems highly unlikely that this decision will not be harnessed for political gain at the expense of minority voters when district lines are redrawn following the 2010 census.

As our brief to the Court pointed out, the opportunity for, and incidence of, vote dilution does not begin at a threshold percentage. Instead, the brief argues, identifying violations of Section 2 and creating remedies for such violations should be governed by an "opportunity to elect" standard, which would analyze multiple local factors, including the geographic distribution of racial groups, and patterns of racially polarized voting and crossover voting.

When faced with the practical applications of this decision, many will find it hard to argue with the dissent of Justice Souter predicting a sad legacy:

…the plurality has eliminated the protection of Section 2 for the districts that best vindicate the goals of the statute, and has done all it can to force the States to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.

To read the amicus brief of the Campaign Legal Center in support of petitioners, click here.

To read the decision, click here.

March 2, 2009

Dear Chairman Leahy,

The Campaign Legal Center is a non-partisan Washington-based legal institute with particular expertise in governmental ethics, campaign finance law and lobbying regulation. The Legal Center represents the public interest in administrative, legislative and legal proceedings that enact, interpret and enforce these public integrity laws and regulations.

The Legal Center has reviewed the Public Corruption Prosecution Improvements Act (S. 49), which you introduced with John Cornyn (R-TX). S. 49 seeks to strengthen federal public corruption laws by closing loopholes in the federal bribery and illegal gratuities statute and by providing federal prosecutors with additional resources to combat official misconduct. We conclude that this legislation would be an important tool in holding public officials accountable for abuses of public office.

In particular, the legislation offers crucial amendments to the federal illegal gratuities statute, 18 U.S.C. § 201(c), to correct the overly narrow interpretation given this statute by two federal court decisions.

The illegal gratuities statute prohibits the gift or offer of "anything of value" to a public official "for or because of any official act performed or to be performed by such public official," or the acceptance or solicitation of such a gift by a public official. Id. § 201(c)(1) (emphasis added). It serves as an important complement to the federal bribery statute because it prevents officials from accepting gifts and favors even where the explicit quid pro quo required for a bribery conviction is not involved.

The Supreme Court's decision in United States v. Sun-Diamond Growers Ass'n, 526 U.S. 398 (1999), however, significantly weakened the efficacy of this statute. There, the Supreme Court considered whether the Sun-Diamond Growers Association - which had showered then-Secretary of Agriculture Mike Espy with approximately $6,000 in gifts - had violated the federal gratuities statute. The Supreme Court held that the federal gratuities statute requires that a "particular official act be identified and proved" in connection to a gift to a public official. 526U.S. at 406 (emphasis added). Although the government had argued that Secretary Espy had the authority to act on multiple pending matters to the benefit of the Association, the Court found that the government had failed to make its case because it had not linked the Association's gifts to any "particular" official acts by Espy.

The second decision to narrow the gratuities statute, Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007), reviewed the conviction of a police officer who was charged with pocketing $400 from an undercover FBI informant in exchange for acquiring information from a restricted police database. The D.C. Circuit overturned his conviction in a 7-5 en banc decision because the majority found that the government had failed to show that Valdes' actions were an "official act" within the meaning of the gratuities statute. According to the Court, an "official act" encompassed only those formal, official actions that are connected to a "class of questions or matters whose answer or disposition is determined by the government." 475 F.3d at 1324. Since acquiring information from the restricted database was not part of the police officer's "official" governmental duties, the en banc Court of Appeals overturned the conviction.

The effect of these two decisions is to render the federal gratuities statute toothless. Further, because an "official act" is also one type of predicate act under the federal bribery statute, 18 U.S.C. § 201(b), these decisions also hamstring the enforcement of this statute. Essentially, public officials can accept gifts and services in exchange for performing acts within the scope of their official authority, but escape prosecution if their actions do not meet the stringent standards for "official acts" established by Sun-Diamond and Valdes. Many instances of egregious public corruption simply do not meet these standards. For instance, paying officials to improperly disclose government information or to misuse government property and resources would probably not constitute "official acts" under this precedent.

S.49 seeks to correct this disabling construction of the illegal gratuities law by amending the statute to make clear that public officials may not accept anything of value given to them "for or because of the official's or person's official position," as well as "for or because of any official act." The legislation exempts from coverage, however, any gift to a public official that would be permitted by any other law or regulation. It thus permits those de minimis or otherwise unobjectionable gifts allowed by valid federal ethics or gift laws and regulations. The bill also expands the definition of the term "official act," see 18 U.S.C. § 201(a)(3), that appears in both the federal gratuities and bribery statutes, to include "any action within the range of official duty."

These amendments have been drafted to ensure that federal prosecutors have the necessary legal tools to combat public corruption. The gratuities statute will only deter influence peddling and prevent the abuse of office if it prohibits all gifts given to a public official for or because of the official's position - not only those gifts given to influence "particular" official actions of requisite "formality."

Further, in the Legal Center's opinion, the Sun-Diamond and Valdes decisions in no way preclude the amendments to the public corruption laws proposed in S. 49. Both cases construed the gratuities statute narrowly as a matter of statutory interpretation - i.e., based on the language of the statute and considerations of congressional intent - and did not reach constitutional issues. For instance, theSun-Diamond Court based its narrow interpretation of an "official act" on the "natural meaning" of the statute, finding it "implausible that Congress intended the language of the gratuity statute - 'for or because of any official act performed or to be performed' - to pertain to the office rather than (as the language more naturally suggests) to particular official acts." 526 U.S. at 406, 409. Neither the Sun-Diamond nor the Valdes decision limits Congress's authority to amend the public corruption statutes. In other words, the Supreme Court and the D.C. Circuit found that a narrow construction was required by the language of the statute, and amending the language of the statute is within Congress' authority.

Additional valuable proposals in the bill include significantly increasing the statutory penalties for committing certain public corruption offenses and extending the statute of limitations for serious public corruption crimes, such as bribery, deprivation of honest services, and extortion involving a public official. The legislation also increases the personnel and resources available to the Offices of Inspectors General and the Justice Department to investigate and prosecute these important public corruption cases.

The Public Corruption Prosecution Improvements Act seeks to provide federal prosecutors with the power and resources to hold public officials accountable for their abuse of office. Its proposed amendments to the bribery and illegal gratuities statute - a statute which has been greatly weakened by recent judicial interpretations - would greatly assist in achieving this legislative goal.

Respectfully,

J. Gerald Hebert

Campaign Legal Center

Executive Director and Director of Litigation

The Fairness Doctrine was never on the table except in the minds of talk radio hosts and those seeking their favor on Capitol Hill. Today's use of the Fairness Doctrine by Senator Jim DeMint (R-SC) in an offered amendment to the DC Voting Right Act bill was nothing more than a Trojan horse. The Fairness Doctrine title was only to offer cover from talk radio for those who would vote for the amendment.

Those of us who have long been proponents of robust public interest obligations for broadcasters who use for free the publicly owned airwaves to make millions and millions of dollars recognize that this recent effort to gin up concern about reimposition of the Fairness Doctrine is a straw man. What was put before the Senate today in the DeMint Amendment was a bald effort to strip the FCC of its powers to ensure the nation's airwaves serve the citizens and not simply enrich the broadcast industry.

No one should be fooled by this clear attempt to rile up the conservative grassroots by pretending that there is a threat where none exists. The threat is that posed by Sen. DeMint and his allies who would hamstring a federal agency which is by statute charged with ensuring the nation's airwaves serve the public interest. Senator Dick Durbin (D-IL) should be commended for his effort to narrow the DeMint amendment.