CLC Update August 6, 2009

  1. Legal Center Relocates Offices to Capitol Hill
  2. In Citizens United, Legal Center Defends Restrictions on Corporate Election Expenditures in Supreme Court
  3. Fourth Circuit Decision Upholds Campaign Finance Laws in Real Truth About Obama Case
  4. Amici Brief filed by Legal Center in Unity08 Case
  5. Legal Center Files Amicus Curiae Motion and Brief in Arizona Public Financing Case
  6. Comments filed by Legal Center on FEC's Draft AOs to Black Rock Group
  7. Redistricting Reform Conference hosted by Legal Center, ARR, and League of Women Voters
  8. Policy Director Calls for Hearings on Redistricting Reform Bill After Blue Dog Endorsement


Legal Center Relocates Offices to Capitol Hill

On August 1, 2009 the Campaign Legal Center relocated to 215 E Street N.E., Washington, DC, 20002 on Capitol Hill from its longtime offices at 17th Street and Rhode Island Avenue. Phone (202-736-2200) and e-mails remain the same for staff at the Legal Center. The new location is less than two blocks from Union Station and close to the Supreme Court and the Capitol.


In Citizens United, Legal Center Defends Restrictions on Corporate Election Expenditures in Supreme Court

On July 31, 2009, the Campaign Legal Center and Democracy 21, on behalf of themselves and five other non-profit groups, filed an amici brief in the Supreme Court case, Citizens United v. FEC, to defend the constitutionality of the federal restrictions on corporate expenditures to influence candidate elections.

The amici brief responds to the Supreme Court's request for supplemental briefing to address the question of whether the Court should overrule its 1990 decision in Austin v. Michigan Chamber of Commerce and part of 2003 decision in McConnell v. FEC. These two key decisions upheld restrictions on corporate election-related spending. The Supreme Court will hear re-argument in this case on September 9, 2009.

The Legal Center's amici brief argues that overturning these decisions would be a radical step that would effectively strike down the 60-year-old federal restriction on corporate expenditures in federal elections, as well as the statutes in 24 states that similarly restrict corporate spending. The invalidation of these statutory checks on corporate expenditures would, in turn, expose federal elections to the corrosive and distorting effects of corporate money for the first time in many decades.

Amici also argue that Citizen United has provided no special justification for such a dramatic break from decades of election law. The Supreme Court decisions in Austin and McConnell are part of a chain of the Court's decisions dating back a half-century that have consistently approved restrictions on corporate and union activities in candidate elections. Further, both decisions were cited as recently as two years ago in Chief Justice Roberts' controlling opinion for the Court in FEC v. Wisconsin Right to Life.

In addition to the Legal Center and Democracy 21, the following groups joined the brief as amici curiae: Common Cause, U.S. PIRG, Americans for Campaign Reform, the League of United Latin American Citizens (LULAC) and the Asian American Legal Defense and Education Fund (AALDEF).


Fourth Circuit Decision Upholds Campaign Finance Laws In Real Truth About Obama Case

On August 5, 2009, the U.S. Court of Appeals for the Fourth Circuit issued a decision in Real Truth About Obama v. FEC (RTAO), denying a request for a preliminary injunction sought by a 527 organization that sought to run broadcast ads during the 2008 presidential campaign attacking then-presidential candidate Barack Obama. The lawsuit was filed in the summer of 2008 challenging as unconstitutional provisions of federal campaign finance laws that required the 527 group to register and comply with restrictions and disclosures that apply to federal political committees.

RTAO was denied a preliminary injunction in the district court and that decision was affirmed yesterday by the court of appeals. The Campaign Legal Center and Democracy 21 filed amici curiae brief supporting the FEC in the case.


Amici Brief Filed By Legal Center in Unity08 Case

On July 6, 2009, the Legal Center, along with Democracy 21, filed an amici brief in Unity08 v. FEC, arguing that the D.C. Circuit Court of Appeals should affirm the district court's decision holding that Unity08 was a federal political committee.

The case originated from an advisory opinion request filed by Unity08 in May 2006 seeking guidance from the FEC as to whether it was a "political committee" subject to the contribution limits, source prohibitions and disclosure requirements that apply under federal campaign finance laws to political committees. In its request, Unity08 explained that its "Goal One" was "to elect a Unity Ticket for President and Vice President of the United States in 2008." Although Unity08 was thus organized solely for the purpose of campaigning in the 2008 presidential election, it nevertheless argued that it should not be deemed a political committee until such time as it actually nominated "clearly identified" presidential and vice-presidential candidates. The FEC rejected Unity08's argument and issued an advisory opinion finding that Unity08 was indeed a political committee.

Unity08 sued, claiming that the FEC's advisory opinion was arbitrary and capricious and inconsistent with the First Amendment. On October 17, 2008, the U.S. District Court for the District of Columbia rejected Unity08's challenge and affirmed the FEC's determination that Unity08's activities would render it a federal political committee. In particular, it noted the risk of corruption if Unity08 were to accept unlimited "soft money" contributions given that its "Unity" candidates would "receive the benefit of appearing on a party ballot - a ten to twelve million dollar benefit - solely due to the efforts of Unity08." (Emphasis added.)

Unity08 appealed the decision, and the appeal is currently pending before the D.C. Circuit Court of Appeals. The Legal Center's amici brief urges the Court of Appeals to affirm the district court's decision, arguing that Unity08 should not be permitted to dodge the contribution restrictions and disclosure requirements that apply to all other political committees and political parties. Amici argue that if Unity08 received its requested exemption from the campaign finance laws until it nominated candidates, it would be allowed to raise unlimited "soft money" without full public disclosure for almost the entirety of the election cycle.


Legal Center Files Amicus Curiae Motion and Brief In Arizona Public Financing Case

On July 24, 2009, the Campaign Legal Center filed a motion for leave to participate as amicus curiae, together with an amicus curiae brief, in McComish v. Brewer, a federal district court constitutional challenge to Arizona's public financing program's matching funds provision. The challenged statute provides candidates who agree to raise no private campaign contributions and, instead, spend only limited public funds, with additional limited public funds to match high spending by nonparticipating opponents or large independent expenditure groups. Plaintiffs argue that providing matching funds to candidates participating in the public financing program somehow burdens their own First Amendment right to speak. Plaintiffs largely base their arguments on the "inescapable logic of the Supreme Court's decision in Davis v. FEC," a 2008 decision which struck down the federal "Millionaire's Amendment" but had nothing to do with public financing. The CLC explained in its brief why the logic employed by the Supreme Court in Davis is inapplicable to public financing matching funds provisions and urged the trial court to instead apply the reasoning of decisions in the First, Fourth and Sixth and Eighth Circuits upholding similar matching fund provisions.


Comments Filed By Legal Center on FEC's Draft AOS To Black Rock Group

On July 15, 2009, and then again on July 27, the Campaign Legal Center filed written comments with the FEC regarding three draft advisory opinions being considered by the Commission in response to a request for advice submitted to the Commission by the Black Rock Group (BRG), a political consulting firm that proposes selling its services to single-member LLCs interested in spending money to influence federal elections. Specifically, BRG proposes offering its clients strategic communications and general political consulting services—and facilitating communication between these various "independent" spenders. In short, BRG would coordinate "independent" expenditures by its clients. Although the advisory opinion request poses several non-controversial legal questions, the controversial question posed is whether this coordination among LLCs turns them into a "group of persons" for the purposes of the federal law definition of "political committee."

The federal law definition of "political committee" includes a "group of persons" that receives contributions or makes expenditures in excess of $1,000 during a calendar year. If deemed a "political committee," no single LLC would be permitted to contribute more than $5,000 to the committee per calendar year. The FEC first produced two alternative draft opinions, "A" and "B," one of which concluded that the LLCs would be a "political committee" and one of which concluded the LLCs would not be a "political committee." The CLC's July 15 comments urged the Commission to adopt the draft concluding that the LLCs would be a "political committee," but the Commission deadlocked on the alternative drafts. Consequently, the Commission postponed further consideration of the matter until its next meeting, with a stated goal of producing an opinion that answered only the non-controversial questions, while simply acknowledging that the Commission is unable to reach a decision on the "political committee" status question. Despite this stated goal, some Commissioners then produced a "Draft C," which essentially concluded once again that the LLCs would not be a political committee. The CLC filed comments opposing "Draft C." At its July 28 meeting, the Commission again deadlocked on the issue and again postponed resolution of the matter until its next meeting, where it apparently will again attempt to craft an opinion addressing only the non-controversial issues.


Redistricting Reform Conference Hosted By Legal Center, ARR, and League Of Women Voters

From July 22-24 in Tarrytown, New York, the Campaign Legal Center, Americans for Redistricting Reform and the League of Women Voters co-hosted a conference of more than two-dozen redistricting experts from across the political spectrum. The conference was titled, "Developing an Action Agenda for Redistricting in 2011". Participants explored practical strategies that individuals and groups can utilize before and during the redistricting processes to increase transparency, participate more effectively in the process, and minimize undesirable outcomes. In addition, the conference attendees examined the lessons garnered from the recently passed redistricting reform measure in California and discussed the upcoming reform efforts in Florida and several other states.

The conference was held at the Pocantico Conference Center of the Rockefeller Brothers Fund with generous support provided by the Joyce Foundation and the Rockefeller Brothers Fund.


Policy Director Calls for Hearings on Redistricting Reform Bill After Blue Dog Endorsement

On July 8, 2009, Campaign Legal Center Policy Director Meredith McGehee called on Speaker Nancy Pelosi (D-CA) to allow hearings on a redistricting reform bill in the wake of an endorsement by the Blue Dog Coalition. The Fairness and Independence in Redistricting (FAIR) Act (H.R. 3025) was introduced by Representatives John Tanner (D-TN) and Mike Castle (R-DE) in June.

In a statement released to the media, McGehee stressed the need to hold hearings soon and noted that leaders from both parties have allowed little movement of legislation in Congress to reform the process. "For several Congresses running, legislation to curb these abuses has been referred to committee and left to die quietly without so much as a hearing," McGehee noted.

She went on to emphasize that both Democrats and Republicans abuse the process for political advantage but it is the Democrats who are currently in control of the legislative process. "We hope Speaker Pelosi will urge Chairman Conyers and the Judiciary Committee to hold hearings and advance the issue before the commencement of another shameless round of gerrymandering which allows incumbent House Members to handpick their constituents."