CLC Update January 25, 2010

  1. Supreme Court Strikes Down Corporate Spending Restriction
  2. Legal Center Files Amici Brief in Case
  3. FEC Program Director Testifies in FEC’s FEA Rulemaking Hearing
  4. Legal Center Files Supplemental Comments in FEA Rulemaking
  5. Legal Center Files in FEC’s Latest Coordination Rulemaking Attempt
  6. Legal Center releases analysis of Obama Administration’s Lobbying Initiatives
  7. CLC’s Associate Legal Counsel Speaks at Midwest Democracy Network’s Conference in Chicago


Supreme Court Strikes Down Corporate Spending Restriction

In a bitterly divided 5-4 decision, the Supreme Court on January 21, 2010 struck down the 60-year-old federal restriction on corporate expenditures in candidate elections in Citizens United v. FEC. To reach this holding, the majority opinion written by Justice Kennedy overturned three earlier Supreme Court decisions that had upheld the constitutionality of restrictions on corporate expenditures: Austin v. Michigan Chamber of Commerce (1990), part of McConnell v. FEC (2003), and WRTL v. FEC (2007). Justice Stevens dissented, joined by Justices Ginsburg, Breyer, and Sotomayor.

The High Court, however, upheld the electioneering communications disclosure provisions that were enacted as a part of the Bipartisan Campaign Reform Act (BCRA) in an 8-1 opinion.

The Citizens United case began as a challenge to BCRA's "electioneering communications" corporate funding restriction and disclosure requirements as applied to plaintiff's film entitled Hillary: The Movie and its advertisements promoting the film. On July 18, 2008, the district court granted the FEC's motion for summary judgment, holding that the film was the "functional equivalent of express advocacy" and therefore could be constitutionally subject to the corporate funding restrictions. Citizens United appealed to the Supreme Court.

It was only in its opening brief filed with the Supreme Court that Citizens United first argued that the Supreme Court's 1990 decision in Austin v. Michigan State Chamber of Commerce should be overruled. Instead of deciding the case on statutory grounds or on narrow constitutional grounds, the Supreme Court, on June 29, 2009, took the rare step of ordering reargument on the question of whether the Court should overrule its past decisions affirming the constitutionality of restrictions on corporate electoral expenditures. After hearing oral argument on this broader question on September 9, 2009, the court rendered its decision.

The Legal Center, along with other public interest groups, filed two amici briefs on June 29 and July 31, 2009 with the Supreme Court, and filed an amici brief with the district court on June 6, 2008.


Legal Center Files Amici Brief in Case

On December 15, 2009, the Legal Center, together with Democracy 21, filed an amici with the en banc D.C. Circuit Court of Appeals in v. FEC. The case challenges the $5,000 contribution limit and the comprehensive reporting and registration requirements applicable to political committees making independent expenditures to influence federal elections.

Plaintiffs claim that because makes only independent expenditures, the state interest in preventing actual and apparent corruption does not justify its regulation as a political committee. In making this argument, plaintiffs rely upon the recent D.C. Circuit decision in EMILY's List v. FEC, a challenge to several FEC regulations applicable to independent groups. There, in a split decision, a three-judge panel of the D.C. Circuit not only struck down the challenged regulations, but also questioned the constitutionality of limits on contributions to independent political committees even though the statutory limits had not been challenged in the lawsuit.

The amici brief filed by the Legal Center and Democracy 21 argues that the Emily’s List decision was incorrect and contrary to all relevant legal precedent, and should be "affirmatively repudiated" by the en banc D.C. Circuit in its consideration of SpeechNow.orgAmici explain that the principle defect in the Emily’s List decision was its conflation of contributions and expenditures for the purposes of First Amendment review.

The amici brief was filed in the en banc Court of Appeals proceeding that arose from the district court's certification of questions pursuant to 2 U.S.C. § 437(h) in v. FEC. Oral argument in the case is scheduled for January 27, 2010.


FEC Program Director Testifies in FEC's FEA Rulemaking Hearing

On December 16, 2009, the Campaign Legal Center's FEC Program Director, Paul S. Ryan, testified before the FEC in its rulemaking hearing regarding components of the "Federal election activity" (FEA) restrictions—specifically "get-out-the-vote" and "voter registration" regulations. The rulemaking was required by 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"). The Legal Center had filed written comments in the rulemaking on November 20.

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, and again in person at the December 16 hearing, 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.


Legal Center Files Supplemental Comments in FEA Rulemaking

On January 6, 2010, the Campaign Legal Center, together with Democracy 21, filed supplemental comments in the FEC rulemaking regarding "Federal election activity" (FEA), responding to two questions posed at the FEC's December 16 hearing on the matter. First, the Legal Center responded to Commissioner Hunter's question of whether the illustrative, non-exhaustive lists of examples of "voter registration activity" at proposed 11 C.F.R. § 100.24(a)(2)(i) and of "GOTV activity" at proposed 11 C.F.R. § 100.24(a)(3)(i) should, in the final rule, be made exhaustive lists of what constitutes "voter registration activity" and "GOTV activity." The Legal Center, in its supplemental comments, urged the Commission to retain the list of examples as illustrative and non-exhaustive. The Legal Center noted that it is impossible for the Commission to predict all of the activities that would and should be regulated by the statutory and regulatory definitions of "voter registration activity." Further, the Legal Center provided examples of conduct covered by the definitions, but not included in the proposed list of examples. Second, the Legal Center responded to a hypothetical example of FEA posed by Commissioner McGahn for comment at the hearing.


Legal Center Files in FEC's Latest Coordination Rulemaking Attempt

On January 19, 2010, the Campaign Legal Center, together with Democracy 21, filed comments with the FEC in response to the Commission's Notice of Proposed Rulemaking on proposed revisions to federal regulations regarding communications that have been coordinated with federal candidates.

The filing is merely the latest by the CLC in a nearly eight-year battle with the FEC over the agency's ineffective implementation of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA). The "regulatory" agency has repeatedly proven far more willing, and far faster, to deregulate than to perform its sworn duty to promulgate regulations and enforce the laws passed by Congress. By contrast to the Commission's long delay in effectively regulating coordinated expenditures, both with respect to the 2002 command by Congress and the 2008 command by the D.C. Circuit in Shays III, the Commission expedited implementation of the D.C. Circuit's recent decision in EMILY's List v. FEC, 581 F.3d 1 (D.C. Cir. 2009), a decision issued only four months ago.

Previous BCRA coordination regulations adopted by the FEC have led to two lawsuits resulting in two federal district court decisions and two D.C. Circuit Court of Appeals decisions holding that the FEC coordination regulations are arbitrary, capricious, an abuse of discretion and contrary to law.


Legal Center Releases Analysis of Obama Administration's Lobbying Initiatives

On December 14, 2009 the Campaign Legal Center released a memorandum via the CLC Blog analyzing a series of initiatives launched by the White House related to its interaction with lobbyists. The memo summarizes those efforts, launched over the course of 2009, to restrict the influence of special interests on the Administration.


CLC's Associate Legal Counsel Speaks At Midwest Democracy Network's Conference In Chicago

The Legal Center's Associate Legal Counsel Paul S. Ryan spoke on January 22 at a Midwest Democracy Network conference in Chicago on a panel entitled "Campaign Finance Reforms in our States and in the Nation." Ryan summarized for attendees the Supreme Court decision in Citizens United, which had been issued the day before the conference and, further, discussed the long-term import of the decision to attendees and their campaign finance reform efforts throughout the Midwest United States.