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.

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.