CLC Update June 30, 2009

  1. Supreme Court Orders Reargument and Additional Briefing in Citizens United
  2. High Court Allows Section 5 of Voting Rights Act to Stand
  3. Supreme Court Sets Recusal Standards Relating to Judicial Elections
  4. Legal Center Files Amicus Brief in Washington State Disclosure Case
  5. Executive Director Speaks at Introduction of Redistricting Bill
  6. Legal Center Wins FEC FOIA Appeal
  7. Associate Legal Counsel Speaks at Heartland Ethics Conference in Madison, Wisconsin


Supreme Court Orders Reargument and Additional Briefing in Citizens United

On June 29, the day a decision was expected in Citizens United v. FEC, the Supreme Court instead ordered that the case be reargued September 9, with supplemental briefs to be filed in July and August. The reargument and supplemental briefs are to answer the following question: "For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Commission, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. §441b?"

Citizens United bought this case challenging the constitutionality of the "electioneering communications" corporate funding restrictions and disclosure requirements of the Bipartisan Campaign Reform Act (BCRA) as applied to its film entitled Hillary: The Movie and its advertisements promoting the film during the 2008 election cycle. In January 2008, a three-judge federal court rejected Citizens United's motion for a preliminary injunction, and on July 18, 2008, the district court granted the FEC's motion for summary judgment on the merits. The Supreme Court noted probable jurisdiction in November 2008.

The Supreme Court in Austin upheld as constitutional a state law prohibiting corporations from making political expenditures using treasury funds. In McConnell, the Supreme Court upheld a similar provision of BCRA that prohibits corporations and labor unions from paying for "electioneering communications" with treasury funds. Citizens United did not ask the district court to overturn these Supreme Court decisions and, consequently, the legal question has not, to date, been fully briefed or argued before the Supreme Court.

The Supreme Court's decision to ask for argument on whether to overrule Austin and related portions of McConnell is deeply troubling. Overruling these decisions would alter more than 100 years of federal policy restricting corporate campaign finance activity in federal elections. Corporations have special legal benefits which enable them to collect vast amounts of money for non-political purposes. They are not voters. In these circumstances, there is no reason to allow them to spend their vast commercial funds in elections.

Both the Austin and McConnell cases are not only cornerstones of campaign finance law, they reflect the century-old curbs on political activity by corporations. To reopen this channel of unlimited corporate political expenditures would distort and corrupt our political system.

On February 24, 2009, the Legal Center, together with Democracy 21, the Brennan Center, Public Citizen and the law firms of Wilmer Cutler Pickering Hale & Dorr LLP and Sonosky, Chambers, Sachse, Endreson & Perry, LLP filed an amici curiae brief with the Supreme Court on behalf of the four sponsors of BCRA, Senators John McCain, Russ Feingold, and former U.S. Representatives Christopher Shays and Marty Meehan.


High Court Allows Section 5 of Voting Rights Act To Stand

On June 22, 2009, the Supreme Court declined to rule on a challenge to the constitutionality of Section 5 of the Voting Rights Act (VRA) in Northwest Austin Municipal Utility District Number One ("NAMUDNO") v. Holder. The Court, however, did rule on petitioner NAMUDNO's statutory claim and found that the VRA provides that all political subdivisions, regardless whether they conduct voter registration, are entitled to apply for bailout from the requirements of Section 5. As a result of the ruling, any political subdivision in the 16 specially covered states that have complied with the Voting Rights Act will now be allowed to seek an exemption from the preclearance requirement.

On March 25, 2009, the Campaign Legal Center filed an amici brief urging the court to uphold the constitutionality of Section 5 on behalf of former Republican officeholders, including William S. Cohen, Bob Dole, Amory "Amo" Houghton Jr., Dick Thornburgh, and William F. Weld.

In addition, the Legal Center's Executive Director J. Gerald Hebert, who maintains a solo practice in Alexandria, Virginia, also filed an amici brief on behalf of seven of the Virginia jurisdictions he represented that have "bailed out" of the preclearance provisions of the Voting Rights Act.


Supreme Court Sets Recusal Standards Relating To Judicial Elections

On June 8, 2009, the Supreme Court ruled that Due Process Clause of the Fourteenth Amendment required recusal in certain cases where a litigant had a "significant and disproportionate influence" in placing the judge on a pending case by making contributions or expenditures to benefit the judge's election campaign.

The facts of Caperton v. Massey were extreme: a West Virginia judge, Justice Brent Benjamin, received the benefit of approximately $3 million in campaign expenditures from the CEO of a corporation facing a $50 million damages verdict. After Benjamin's election to the court, he heard the appeal of the case and cast the deciding vote in favor of the corporation, overturning that jury award.

One key aspect of the case was that the vast majority of the political expenditures in Caperton were not direct contributions to the judge but rather were made by an independent group on the judge's behalf. This fact suggests that a majority of the Court might have some concern regarding the corruptive potential of "independent" groups, like 527 organizations, who spend millions of dollars to influence federal elections.

On January 5, 2009, the Campaign Legal Center, together with the Brennan Center for Justice and the Reform Institute, filed an amici curiae brief urging the Court to find that due process required recusal in Caperton and in analogous cases.


Legal Center Files Amicus Brief in Washington State Disclosure Case

The Campaign Legal Center on June 4, 2009, filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit in Human Life of Washington, Inc. (HLW) v. Brumsickle. HLW challenges on constitutional grounds several components of the State of Washington's political committee disclosure regime, including the State's definitions of "political committee," "independent expenditure," and "political advertising." The District Court correctly rejected HLW's challenges to these disclosure provisions, but in doing so, the Court considered itself bound by the Ninth Circuit's application of strict scrutiny to disclosure provisions in two prior decisions— Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003) (CPLC I ) and Cal. Pro-Life Council, Inc. v. Randolph , 507 F.3d 1172 (9th Cir. 2007) ( CPLC II ).

The Legal Center's brief argues that Ninth Circuit's decision to apply strict scrutiny to disclosure laws in CLPC I and CPLC II , based on the Court's reading of the Supreme Court's decision in FEC v. Massachusetts Citizens for Life, Inc. ( MCFL ) ,479 U.S. 238 (1986), was erroneous. The MCFL Court did not apply strict scrutiny to the disclosure laws; indeed, the Court did not apply any scrutiny at all to disclosure laws because no disclosure laws were challenged by MCFL. It is for this reason that the Legal Center urged the Ninth Circuit to correct the errors it made in CLPC I and CPLC II and make clear that under the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny, campaign finance disclosure requirements are subject to intermediate scrutiny.


Executive Director Speaks At Introduction of Redistricting Bill

On June 24, 2009, Representatives John Tanner (D-TN) and Mike Castle (R-DE) introduced the Fairness and Independence in Redistricting (FAIR) Act. Senator Tim Johnson (D-SD) introduced companion legislation in the Senate. J. Gerald Hebert, Campaign Legal Center Executive Director, appeared with the co-sponsors at a Capitol Hill press conference before they officially introduced the legislation. The speakers emphasized the need to reform the redistricting process now before the 2010 Census is completed.

The FAIR Act sets minimum national guidelines for states to follow in drawing Congressional district lines. A bipartisan commission in each state would draw that state's Congressional map exactly once every 10 years, following the release of new Census data. Districts would be drawn to adhere to the Voting Rights Act, equal population, geography and local boundaries. The legislation only affects Congressional districts and does not address district lines for state and local elections.

"Redistricting reform must occur in the 111th Congress or the next round of gerrymanders will begin anew in the wake of the 2010 Census," said Hebert in a statement released to the media after the bill's introduction. "The current system is a terrible disservice to the citizens of this country and a gross distortion of the democracy envisioned by the founding fathers for the legislative branch." The Campaign Legal Center founded Americans for Redistricting and continues to work with Congress and organizations from across the political spectrum to bring about change to the current redistricting process.


Legal Center Wins FEC FOIA Appeal

Earlier this year, in the context of the growing number of Federal Election Commission (FEC) deadlocked votes in enforcement matters, it came to the attention of the Legal Center that the FEC was not putting on the public record, via the FEC Web site, two types of documents generated by the FEC's Office of General Counsel that the FEC's own regulations and written policy requires the FEC to make public—namely, Factual and Legal Analyses and General Counsel's Reports. In an effort to obtain these documents, the Legal Center has, since March, filed six separate Freedom of Information Act (FOIA) requests pertaining to six separate closed enforcement actions.

In late April, the FEC's FOIA Service Center denied the first Legal Center FOIA request (2009-34) filed in March. The Legal Center then filed an appeal to be decided by the Commissioners themselves. Last week, the Legal Center received notice that the Commission had granted its appeal, providing to the Legal Center the requested documents, with some information that the Commission believes is exempt from disclosure under FOIA redacted from those documents.

It is unclear from the FEC's resolution of the first of six pending FOIA requests whether the Commission is, in fact, bringing its FOIA practices in line with the Commission's regulations and written policy. In the event any of the remaining five Legal Center FOIA requests are denied, the Legal Center intends to file appeals.


Associate Legal Counsel Speaks At Heartland Ethics Conference in Madison, Wisconsin

The Legal Center's Associate Legal Counsel Paul S. Ryan addressed the annual Heartland Conference on governmental ethics in Madison, WI, on June 9. Conference attendees principally included staff of campaign finance regulatory agencies of states in the Midwest region of the U.S. Mr. Ryan spoke on the topic of "Recent Developments in Campaign Finance Across the Nation," discussing recent campaign finance court decisions, pending litigation and legislation.