New Litigation Summary from CLC Describes Continuing Flood of Challenges to Campaign Finance Laws & Growing List of Voting Rights Cases


Ideological and interest group opponents of campaign finance regulation continue to flood the courts with cases challenging campaign finance laws at the federal, state and municipal levels.  McCutcheon v. FEC, a challenge to the federal aggregate contribution limits, will be argued before the U.S. Supreme Court this Term, with still more cases on the way up through the lower courts. At the same time, attempts to enact racially-discriminatory voting laws at the state level has generated a spike in voting rights cases, a situation exacerbated by the Supreme Court’s recent decision to strike down a key provision of the Voting Rights Act in Shelby County v. Holder. The Legal Center has released an updated summary of that litigation to facilitate the tracking of the long list of cases.

In 2013, reform opponents continue their attempt to extend the reasoning of the Supreme Court’s decision in Citizens United v. FEC to challenge a broad range of campaign finance laws. 

In particular, anti-reform litigators have won Supreme Court review in McCutcheon v. FEC, a challenge to the aggregate limits on contributions to federal candidates, parties and political committees.  A three-judge court in Washington D.C. upheld the aggregate limits in September 2012, and the High Court noted probable jurisdiction in February 2013.  The plaintiffs not only challenge the aggregate limits, but also ask the Supreme Court to reconsider its long-standing position articulated in Buckley v. Valeo that contribution limits are less burdensome than expenditure limits and therefore warrant “less rigorous” review. The McCutcheon case thus threatens to be the “next Citizens United”—another radical decision by the Supreme Court to reverse decades of its own precedents. Oral argument is scheduled for October 8, 2013.

By contrast, political disclosure laws remain a target but have largely withstood attack. The First, Fourth, Seventh, Ninth, Tenth and Eleventh Circuits have all upheld strong disclosure laws applicable to independent spending following Citizens United.  In 2013, the Tenth Circuit upheld the broad federal regulatory definition of “express advocacy” (Free Speech v. FEC), and the Fourth Circuit upheld a number of West Virginia’s disclosure provisions, including a requirement that groups funding electioneering communications disclose all donors, and not simply donations “earmarked” for electioneering communications (Center for Individual Freedom v. Tennant).  Further, the Supreme Court in January 2013 declined to grant certiorari in Real Truth About Abortion, a Fourth Circuit decision sustaining multiple federal rules governing disclosure, suggesting that the High Court is not eager to undercut strong political disclosure.

In the sphere of voting rights, the Supreme Court in its June 2013 Shelby County ruling struck down the formula used to determine which states and localities would be covered under the Voting Rights Act’s “preclearance” requirement, holding the coverage formula unconstitutional in light of “current conditions.” Since then, voting rights cases have continued to multiply, albeit under the more difficult standards of the Act’s remaining provisions—notably, the Court left intact Section 2, which blocks discriminatory voting rules nationwide, as well as Section 3, which allows courts to impose preclearance requirements on (or “bail in”) particular jurisdictions found to have discriminated against voters. Now, the Act’s future may be decided by a handful of new and ongoing Texas cases brought under these provisions, including two Justice Department attempts to re-impose federal oversight of voting changes through Section 3’s “bail in” mechanism (Perry v. Perez and United States v. Texas).

The Legal Center’s litigation summary attests to the enormous number of active legal cases concerning campaign finance and voting rights and underscores the need to remain vigilant in tracking and participating in litigation in 2013 and coming years.

To read the Legal Center’s updated litigation summary, click here

The most recent update of the litigation summary is always available on the Legal Center website’s Court Case of Interest page between the active cases and past cases.