CLC Update December 14, 2009

  1. FEC Finalizes Rules to Implement HLOGA Candidate Travel Restrictions and Draws Criticism from the Legal Center
  2. Legal Center Files Comments in FEC's "Federal Election Activity" Rulemaking
  3. Legal Center’s Potter, Hebert & Ryan Make Presentations at COGEL Conference
  4. President, Policy Director Invited to Join Experts Blogs at National Journal and The Hill
  5. Executive Director Speaks at Voting Rights Conference Center Executive Director Speaks on Redistricting at Conference
  6. Associate Counsel Addresses Public Interest Conference


FEC Finalizes Rules to Implement HLOGA Candidate Travel Restrictions And Draws Criticism From The Legal Center

On Nov. 19, 2009, the FEC adopted a final rule gutting restrictions on federal candidate air travel, enacted by Congress as part of a sweeping revision of federal ethics laws known as the Honest Leadership and Open Government Act of 2007 (HLOGA). For years, federal law permitted candidates to fly around the world on corporate and other privately-owned aircraft for the low price of a first-class plane ticket. But Congress ended this practice when it passed HLOGA in 2007, requiring candidates for the office of President or Senate to pay the fair market value of the flight, and prohibiting House candidates outright from flying on noncommercial aircraft. Yet the FEC adopted a final rule nonsensically declaring that a candidate is not a "candidate," for the purpose of this statute, when that candidate "is traveling on behalf of another political committee (such as a political party committee or Senate leadership PAC)." Instead, where a candidate claims to be traveling "on behalf of" their own leadership PAC, or one of the many committees controlled by their political party, or any other political committee—the old rules apply, allowing that candidate to pay the price of a commercial air ticket instead of the price of the private plane the candidate is actually flying on. The FEC's new rule illegally contradicts the plain meaning of the statute. Unfortunately, gutting or ignoring federal law—that Commissioners would have written differently themselves—has become a recurring habit for the FEC. In an earlier rulemaking, the FEC gutted the intent of another key aspect of HLOGA, allowing lobbyists to easily evade required reporting of bundled campaign contributions.


Legal Center Files Comments in FEC's "Federal Election Activity" Rulemaking

On Nov. 20, 2009, the Legal Center, together with Democracy 21, filed written comments with the FEC in response to the FEC's Notice of Proposed Rulemaking (NPRM) 2009-22, published at 74 Fed. Reg. 53674 (Oct. 20, 2009), seeking comment on proposed changes to its rules defining various components of the term "Federal election activity" ("FEA") under the Commission's rules. Specifically, the Commission sought comment on changes to its rules defining "voter registration activity" and "get-out-the-vote activity" ("GOTV activity") in response to the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) ("Shays III").

This rulemaking marks the third time the Commission has gone to the drawing board to write rules implementing the critical "FEA" provisions of the Bipartisan Campaign Reform Act of 2002, which determine when state political party committees must use Federally-permissible funds to pay for activities connected to Federal elections. The Commission's FEA rules were first invalidated by a Federal court in 2004, then again in 2008, in the Shays I and Shays III law suits, respectively. The Legal Center represented BCRA's principal Senate sponsors, Senators McCain and Feingold, as amici curiae in these law suits opposing the earlier rules promulgated by the Commission.

Hoping the third time will be a charm, the Legal Center in its November comments urged the Commission to adopt the Commission's proposed rule defining "voter registration activity" to include "encouraging or assisting potential voters in registering to vote" and to adopt its proposed rule defining "GOTV activity" as "encouraging or assisting potential voters to vote," with the recommended amendments and omissions set forth in the Legal Center's Comments. The Legal Center's FEC Program Director, Paul S. Ryan, will testify before the Commission at a related rulemaking hearing on December 16.


Legal Center's Potter, Hebert & Ryan Make Presentations at COGEL Conference

The Legal Center's Trevor Potter, Gerry Hebert and Paul S. Ryan addressed the Council on Governmental Ethics Laws (COGEL) at its annual meeting in Scottsdale, AZ last week—speaking on a total of six panels in two days. Mr. Potter moderated a panel discussion on regulating lobbyists. Mr. Hebert spoke on a panel about redistricting. Mr. Ryan spoke on four panels, including panels on campaign finance reform litigation and legislation nationwide, a panel regarding "527" organizations and other political spenders, and a panel regarding overlapping jurisdiction and local government home rule.


President, Policy Director Invited To Join Experts Blogs at National Journal and The Hill

Campaign Legal Center President Trevor Potter and Policy Director Meredith McGehee have accepted invitations to contribute to expert blogs launched earlier this month at two of the leading publications covering government and politics in Washington. Both outlets provide increased visibility for the Legal Center and its issues before lawmakers, government officials, the media, and the public. National Journal's "Under the Influence Experts" blog is billed as a forum where "[l]obbyists, advocates and consultants debate K Street rules and practices in a discussion moderated by's lobbying reporters." The Hill's "Big Question" appears daily on the Congress Blog, "where lawmakers come to blog." Both Potter and McGehee already participate in The Arena a similar endeavor launched by Politico.


Executive Director Speaks At Voting Rights Conference

On December 10, 2009, Legal Center Executive Director Gerald Hebert spoke at a conference sponsored by the International Municipal Lawyers Association (IMLA) in Columbia, South Carolina. The Conference was entitled "Voting Rights Litigation: Dealing with the 2010 Census." Hebert spoke about the Supreme Court's decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder. Hebert's remarks focused on bailouts under the Voting Rights Act in the post-NAMUDNO era.


Associate Counsel Addresses Public Interest Conference

On December 10, 2009, Campaign Legal Center Associate Counsel Tara Malloy spoke at USPIRG's Public Interest Network's conference in Denver, Colorado. The conference brings together grassroots activists from across the nation. Ms. Malloy's presentation addressed recent developments in campaign finance litigation and provided an overview of the ongoing Supreme Court case, Citizens United v. FEC.


Legal Center Executive Director Speaks On Redistricting At Conference

On November 10, 2009, Legal Center Executive Director Gerry Hebert spoke at a conference sponsored by the Earl Warren Institute on Race, Ethnicity, and Diversity (University of California at Berkeley Law) in Washington, DC. The conference was entitled Redistricting Reform and Voting Rights: Identifying Common Ground and Challenges.