The Federal Election Commission (FEC) is tasked with enforcing federal campaign finance law. Congress designed the Commission to ensure partisan fairness. But Congress also understood that the FEC’s bipartisan structure could lead to gridlock and prevent enforcement of campaign finance laws when the Commissioners are unable to agree on what actions to take. Indeed, over the past two decades partisan gridlock at the FEC has ground enforcement nearly to a halt. But Congress anticipated this problem and created a solution to ensure that the Federal Election Campaign Act (FECA) did not become dead letter. When the FEC fails to take action on a complaint alleging that the law has been violated, FECA authorizes the complainant to challenge that inaction in federal court. If the complainant succeeds in showing that the FEC has unlawfully delayed, the court can order the Commission to take action. If the FEC fails to do so, FECA gives the private complainant the right to sue the violator directly in federal court to enforce the law.

Over the past few years, groups like Campaign Legal Center (CLC) have increasingly turned to FECA’s direct suit provision as a means of ensuring that federal campaign finance laws are enforced, notwithstanding the agency’s inaction. As a result, there are a growing number of cases in federal court where pro-democracy groups like CLC have stepped in to enforce FECA in the wake of the FEC’s dysfunction.

Federal law requires campaigns and outside organizations to be transparent about the who is spending money to influence federal elections. FECA also imposes contribution limits to protect against the corrupting influence of money in politics. To ensure these contribution limits are enforced, FECA prohibits almost all coordination between candidate campaigns and purportedly independent outside groups. In the past two years, Campaign Legal Center and its affiliated 501(c)(4) Campaign Legal Center Action have won a number of judgments, on behalf of CLC and other affected organizations, against the FEC for its failure to act on administrative complaints alleging violations of FECA. As a result, CLC and CLC Action are now representing several plaintiffs —including CLC itself — who have exercised their right under FECA to sue violators directly in federal court.

What’s At Stake

Federal campaign finance laws protect every American’s right to participate in the political process by requiring transparency about who is funding election ads and other political spending, so voters can properly weigh different speakers and messages and cast an informed vote. Our campaign finance laws are also supposed to limit actual and apparent corruption by restricting the amounts and sources of money given directly to support candidates and their campaigns. But these laws are meaningless if they aren’t enforced.

Enforcement of campaign finance laws is important not only to compel compliance by individual political actors but also to send a clear message to others that there are consequences for violating the rules. All too often the exact opposite has occurred. Organizations that wish to conceal the sources of their political spending or coordinate their ostensibly “independent” spending with the candidates they support know the gridlocked Commission is unlikely to enforce the law. This means that these actors, and others who emulate their activities, face little to no consequence for violating the law, and thus have no reason to comply. These increasingly flagrant violations of federal campaign finance laws undermine trust in the democratic process, as the public also learns to view the rules as meaningless.

Voters are entitled to a fair, transparent and accountable political process and a government agency that enforces our campaign finance laws. In the absence of FEC action, groups like CLC are stepping up to ensure that federal campaign finance law is enforced.

The Mandan, Hidatsa and Arikara Nation (MHA Nation) and individual voters, who are citizens of the MHA Nation, intervened as defendants in a federal court case brought by non-Native voters to challenge the 2021 North Dakota State House Map. The map includes a state house subdistrict that follows the political boundaries of the Fort Berthold Reservation, where the MHA Nation is located. The lawsuit alleges that the subdistrict is an illegal racial gerrymander. However, as the MHA Nation and tribal citizens have argued, race was not the predominate motivating factor when the Legislature drew the subdistrict. Additionally, any use of race in drawing the district is justified because the subdistrict was required in order to comply with Section 2 of the Voting Rights Act.

In North Dakota, each legislative district is represented by a single state senator and two representatives in the State House. The state’s constitution permits state house representatives to be elected either at large within the senate district or from two single-member subdistricts that each represent half of the legislative district’s population. The 2021 North Dakota State House map includes two legislative districts that are broken into State House subdistricts: District 4 and District 9. Walen Plaintiffs challenge the creation of both subdistricts as unconstitutional racial gerrymanders, in violation of the Fourteenth Amendment of the United States Constitution. The MHA Nation and individual tribal citizens are only defending Subdistrict 4A.

Before the North Dakota Legislature drew Subdistrict 4A as a part of the 2021 State House Map, the Fort Berthold Reservation was located in a legislative district that was represented by two state house representatives, elected at large from the district, and one state senator. In previous election cycles, MHA citizens ran for the at large seats. However, the Native candidates never won because Native voters made up a minority of the at large district and non-Native voters in the area vote reliably as a bloc against the Native candidate of choice.

Leaders from the MHA Nation and Native organizers worked hard to ensure MHA citizens would have a voice in North Dakota’s redistricting process. Even though the North Dakota Redistricting Committee refused to hold hearings on tribal lands in the state, representatives of the MHA Nation and tribal citizens travelled to hearings and gave testimony urging the committee to recognize to the Reservation as a community of interest and draw a subdistrict containing the Nation. Subdistrict 4A adheres the political boundaries of the MHA Nation and recognizes the MHA people as a community of interest. It has a majority Native population and will give citizens of the MHA Nation who live on the Fort Berthold Reservation the opportunity to elect a candidate of choice to the North Dakota State House.

Campaign Legal Center (CLC), Native American Rights Fund (NARF) and the Law Offices of Bryan Sells represent the Tribal Defendants in this case.

For more information on Native Nations’ legal challenges to North Dakota’s 2021 State Legislative Map, visit the Turtle Mountain and Spirit Lake Nation case page.