- Ninth Circuit Upholds California Disclosure Laws in Prop 8 Case
- Supreme Court Turns Down Challenge to FEC’s PAC Disclosure Requirements
- Legal Center Opposes True the Vote’s Attempted Late Entry into Texas Voter I.D. Challenge
- Three-Judge Panel Disregards Precedent to Gut Wisconsin Political Disclosure Laws
- Legal Center, Connecticut Watchdogs, File in Defense of State’s Post-Citizens United Campaign Finance Reforms
- State of Delaware Appeals Decision Enjoining Application of State Disclosure Law
- Voting Rights Institute in Washington Trains New Generation of Voting Rights Lawyers
- Campaign Legal Center and Sunlight Foundation File FCC Complaints Against Broadcasters Nationwide for Failure to Disclose Required Information on Political Ads
- Trevor Potter Testifies Before Senate Rules Committee on Post-McCutcheon Campaign Finance
- Watchdog Groups Again Call on IRS to Deny Crossroads GPS Tax-Exempt Status as 501(c)(4) Group
- Citizens Congress 2014 Features Trevor Potter, Confronts Undue Influence of Money in Elections
- Trevor Potter Delivers Keynote Speech at Coalition for Open Democracy Event
- Senior Counsel Participates in National Institute on Money in State Politics Conference
- Legal Center and National Press Club Regional Reporters Committee Hold Ethics Boot Camp for Reporters
- Rep. Walter Jones Talks Money in Politics with Trevor Potter on Washington Watch
- Trevor Potter Talks Campaign Finance on Senator Angus King’s Radio Program
Ninth Circuit Upholds California Disclosure Laws in Prop 8 Case
On May 20, in ProtectMarriage.com v. Bowen, the Ninth Circuit Court of Appeals rejected a constitutional challenge to disclosure requirements in California’s Political Reform Act that require state ballot measure committees to identify their campaign contributors above a $100 reporting threshold. The groups that brought the case – which raised and spent tens of millions of dollars in 2008 in support of Proposition 8, a successful statewide ballot initiative that has since been invalidated – sought to overturn these disclosure requirements as unconstitutional, both facially and as applied to them, on the basis of claimed ‘harassment’ directed at their campaign donors.
The Court of Appeals upheld the district court’s determination that the laws are facially valid but did not reach the merits of the as-applied claims, finding instead that the intervening disclosure of the groups’ contributors rendered their appeal non-justiciable.
“Today’s decision deals yet another blow to the coordinated campaign against transparency being waged in courts nationwide. The groups bringing these challenges across the country have repeatedly tried to equate mere criticism they may have received from their political opponents with the very unique circumstances that have warranted exemption from disclosure laws in past cases,” said Megan McAllen, Campaign Legal Center Associate Counsel. “This is not the NAACP in the Jim Crow South or even the Socialist Workers Party but simply another group seeking to influence election outcomes anonymously. The courts have repeatedly affirmed that disclosure – in all but the rarest of cases – is a constitutional means to provide voters with vital information about the sources of campaign money and enables them to evaluate the interests seeking to influence their votes.
To read the Legal Center’s brief in the Court of Appeals, click here.
Supreme Court Turns Down Challenge to FEC’s PAC Disclosure Requirements
On May 19, the U.S. Supreme Court denied certiorari in Free Speech v. FEC, letting stand a decision by the Tenth Circuit Court of Appeals to uphold FEC rules and policies relating to the determination of “political committee” status and, by extension, the registration and reporting requirements applicable to such committees.
On June 25, 2013, the Tenth Circuit sustained the FEC’s “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), which defines this term broadly to capture ads that do not say “vote for” or “vote against” a candidate, but still can “only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”
“We are pleased that the Supreme Court has left undisturbed FEC rules that broadly define what type of groups must provide comprehensive disclosure of their political activities. Whether the Commission will emerge from its current gridlock to vigorously enforce these rules is a different question, but the decision certainly gives the FEC the green light,” stated Campaign Legal Center Senior Counsel Tara Malloy. “This ruling also joins many earlier decisions by the High Court holding that a ‘magic words’-style definition of express advocacy does not represent the outer boundary of permissible political disclosure or political committee status. Instead the Supreme Court has recognized that the public has a right to transparency in connection to a wide range of advertising designed to influence their vote on Election Day.”
The Free Speech challenge began in March of 2012, when a group submitted an advisory opinion request to the FEC proposing to run a series of attack ads without registering as a political committee or complying with the disclosure requirements for political committees. When the FEC informed the group it would be in violation of the regulations if it proceeded, the group challenged the regulations in the U.S. District Court for the District of Wyoming. Free Speech lost in both courts below.
The Campaign Legal Center, joined by Democracy 21, filed comments with the FEC, as well as amici briefs with both the district court and the Court of Appeals. The Legal Center and Democracy 21 were aided by Larry B. Jones of Simpson, Kepler & Edwards, LLC.
To read the amici brief filed by the Campaign Legal Center and Democracy 21 in the Court of Appeals, click here.
Legal Center Opposes True the Vote’s Attempted Late Entry into Texas Voter I.D. Challenge
On May 16, the Campaign Legal Center filed in the U.S. Court of Appeals for the Fifth Circuit an opposition to a motion by the organization True the Vote (‘TTV’) to expedite its appeal or, in the alternative, to stay the Texas voter ID case in the district court while it pursues its appeal. On December 11, 2013, TTV was denied intervention as a defendant in the consolidated lawsuits (Veasey v. Perry, No. 2:13-cv-193) challenging Texas’s new voter identification law.
“True the Vote wants to assist the State of Texas to defend a voter ID law that was adopted and is being used to harm black and Latino voters,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center. “But the organization delayed months to try and get their intervention in the case resolved, and now seeks to reward itself for its own failure to act. Our legal system should not reward such dawdling.”
On December 20, 2013, TTV filed a notice of appeal from the denial of the motion to intervene. TTV did not, however, file a motion to expedite its appeal or stay the underlying proceedings at the time. Instead, it waited more than four full months, until May 5, 2014, to file the motion to expedite. The Legal Center’s opposition to TTV’s motion noted that TTV: offered no explanation or excuse for the unreasonable delay; failed to file a motion for a stay in the trial court as required by the Federal Rules; and created the “emergency” that it now claims entitles it to expedite the appeal or stay the proceedings below.
The Campaign Legal Center is part of the legal team challenging the ID law that includes Chad Dunn and K. Scott Brazil (Brazil & Dunn), Neil G. Baron, David Richards ( Richards, Rodriguez & Skeith), Armand Derfner (Derfner, Altman & Wilborn), Luis Roberto Vera, Jr. (LULAC) and Craig M. Wilkins and Teresa G. Snelson (Dallas County District Attorney’s Office).
To read TTV’s motion, click here.
To read the Campaign Legal Center’s opposition to TTV’s motion, click here.
Three-Judge Panel Disregards Precedent to Gut Wisconsin Political Disclosure Laws
On May 14, a three-judge panel of the Seventh Circuit Court of Appeals invalidated or narrowed multiple provisions of Wisconsin’s political disclosure law in Wisconsin Right to Life v. Barland.
The three-judge panel held that Wisconsin’s disclosure requirements could only extend to express advocacy and the functional equivalent of express advocacy, disregarding that the Supreme Court in Citizens United stated unequivocally that it “rejected the contention” that disclosure “must be limited to speech that is the functional equivalent of express advocacy.” The three-judge panel also struck down Wisconsin’s “PAC-like” disclosure requirements as applied to groups making independent expenditures that did not have express election advocacy as their major purpose.
“The result of this decision is to leave virtually no reporting requirements for independent spending on the books for certain organizations. A group can pour millions of dollars into advertising in Wisconsin elections without having to make full disclosure to the public, provided that it claims its ‘major purpose’ does not relate to candidate elections,” Legal Center Senior Counsel Tara Malloy stated. “This panel has apparently forgotten that the High Court has repeatedly found that there is a vital public interest in ensuring that voters receive information about the independent advertising campaigns that bombard them in the election season so they can make meaningful decisions at the polls.”
To read the amicus brief the Legal Center filed on November 9, 2012, defending the challenged provisions of Wisconsin law, click here.
Legal Center, Connecticut Watchdogs, File in Defense of State’s Post-Citizens United Campaign Finance Reforms
On May 13, the Campaign Legal Center, joined by three Connecticut watchdog groups, filed an amici brief in U.S. District Court for the District of Connecticut urging the court to deny a request for preliminary injunction being sought by the Democratic Governors Association (DGA) that would undermine the new campaign finance laws passed by the state in the wake of the Supreme Court’s Citizens United decision. The DGA seeks to make unlimited “independent” expenditures in support of Connecticut Governor Daniel P. Malloy’s candidacy while at the same time having Governor Malloy fundraise for the DGA – without having to abide by Connecticut’s contribution limits or source prohibitions, and in many cases without disclosure.
Common Cause of Connecticut, Connecticut Citizen Action Group and the League of Women Voters of Connecticut joined in the brief. Patrick Tomasiewicz, of Fazzano & Tomasiewicz, is serving as Counsel of Record in this case.
“The [DGA] is asking the court for the right to ignore the state’s coordination rules with impunity,” said Larry Noble, Of Counsel to the Campaign Legal Center. “This challenge is particularly galling in light of the fact that Governor Malloy when he signed the reforms into law last year described the Citizens United decision as a ‘tragic decision’ that ‘reversed years of campaign finance reforms and allowed unlimited private money into politics, empowering the wealthy few at the expense of our democracy.’ If the DGA is successful, it will hobble the ability of the state to determine when outside groups are coordinating with candidates and to prevent the corruption that can arise from that kind of abuse of the democratic process.”
The brief filed by the reform groups asks the court to dismiss the DGA suit outright or deny the motion for a preliminary injunction on grounds that the DGA is unlikely to succeed on the merits of its claims. On June 6, 2014, the Legal Center filed a supplemental memorandum in the case calling the court’s attention to the fact that while the case began as a challenge to SEEC opinions and staff comments regarding the 2013 Act, it has “somehow been transformed into a broad constitutional attack on the state’s definition of political committee, the resolution of which appears to be turning on hypotheticals that nowhere appeared in the original complaint or papers.”
To read the amici brief filed by the Campaign Legal Center, click here.
To read the Legal Center’s supplemental memorandum, click here.
State of Delaware Appeals Decision Enjoining Application of State Disclosure Law
On June 2, the State of Delaware filed its opening brief with the Third Circuit Court of Appeals, urging the reversal of a lower court decision that preliminarily enjoined Delaware’s disclosure law as applied to a nonprofit group, Delaware Strong Families (DSF). The case, Delaware Strong Families v. Biden, involves a constitutional challenge to Delaware’s new electioneering communications law.
“The Supreme Court has repeatedly recognized the vital governmental interest in promoting transparent elections,” said Tara Malloy, Campaign Legal Center Senior Counsel. “Delaware’s disclosure law does just that.”
To read the brief, click here.
Voting Rights Institute in Washington Trains New Generation of Voting Rights Lawyers
On May 9, the Campaign Legal Center held its latest Voting Rights Institute training in Washington, D.C., co-hosted by American Constitution Society. At the session, some of the most respected voting rights practitioners in the country briefed practitioners on the skills necessary to enforce voting rights law. Particular emphasis was given to litigation to enforce Section 2 of the Voting Rights Act (VRA), as well as the Fourteenth and Fifteenth Amendments to the Constitution, and discriminatory voting practices and procedures that have arisen in the post-Shelby County world. Earlier this year, trainings were held in New York City, Columbus, Ohio, and Atlanta, Georgia.
“Now, more than ever, we must begin to train new litigators to bring voting rights cases whenever the right to vote is being denied or abridged,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center. “In the wake of the Supreme Court’s gutting of the Voting Rights Act, we are seeing more and more efforts by legislatures, city councils and other government officials to discriminate against minority voters and burden the right to vote.”
At the training, noted voting rights experts provided background on the VRA and relevant federal court cases to participants; they also focused on the mechanics of bringing successful voting rights litigation. Financial support from the Rockefeller Brothers Fund (www.rbf.org), the Wallace Global Fund, and the Mertz Gilmore Foundation for the Voting Rights Institute is gratefully acknowledged.
To read the full agenda for the training, click here.
Campaign Legal Center and Sunlight Foundation File FCC Complaints Against Broadcasters Nationwide for Failure to Disclose Required Information on Political Ads
On May 1, the Campaign Legal Center and the Sunlight Foundation, represented by the Institute for Public Representation of Georgetown University Law Center, filed complaints with the Federal Communications Commission (FCC) against 11 broadcast television stations for failure to publicly disclose legally-required information about sponsors of political ads they aired this year. Without this information, viewers are denied important information about the organizations and individuals seeking to influence their vote through these ads.
The FCC has required broadcast stations to disclose this information in their “political files” for decades. The disclosure requirements were expanded in 2002 with the passage of the Bipartisan Campaign Reform Act. Stations in the top 50 U.S. markets have been required to upload this information into their online public files housed on the FCC website since 2012. Beginning in July 2014, smaller stations will fall under the same requirements.
The complaints stem from reviews of the stations’ online political files, which exposed widespread noncompliance with the disclosure requirements.
“These complaints may lift the curtain on why the National Association of Broadcasters has fought so hard against putting the political files online,” said Meredith McGehee, Policy Director of the Campaign Legal Center. “In too many cases, the stations and their advertisers failed to comply with the simplest and most basic disclosure requirements. As a result, the public does not have the information it needs to understand who is speaking on the public airwaves and attempting to influence their views on political issues.”
The FCC responded by sending letters to 11 stations cited in the complaints and gave them two weeks to respond.
To see the full list and to read any of disclosure complaints the Campaign Legal Center filed with the Sunlight Foundation, click here.
To access the FCC database with all the online political files for the top 50 broadcasters, click here.
Trevor Potter Testifies Before Senate Rules Committee on Post-McCutcheon Campaign Finance
On April 30, Trevor Potter testified before the U.S. Senate Committee on Rules and Administration as part of the hearing ‘Dollars and Sense: How Undisclosed Money and Post-McCutcheon Campaign Finance Will Affect 2014 and Beyond.’ The panel testifying before the Committee included Mr. Potter, retired U.S. Supreme Court Associate Justice John Paul Stevens, Federal Election Commission Vice Chair Ann Ravel, and American Enterprise Institute Resident Scholar and Campaign Legal Center board member Norman Ornstein.
Senator Angus King (I-ME) chaired the hearing, which examined the effect dark money and disclosure in U.S. elections how the U.S. Supreme Court’s decision in McCutcheon v. FEC. In McCutcheon, the Supreme Court overturned a U.S. District Court decision that upheld aggregate contribution limits for individual donors, discarding decades of the Court’s own precedents in prior campaign finance decisions.
To watch the full hearing, click here.
Watchdog Groups Again Call on IRS to Deny Crossroads GPS Tax-Exempt Status as 501(c)(4) Group
On May 6, the Campaign Legal Center joined Democracy 21 in a letter sent to the Internal Revenue Service (IRS) to again urge the agency to deny the application filed by Crossroads GPS for tax exempt status as a section 501(c)(4) “social welfare” organization.
According to the letter from the watchdog groups:
Crossroads GPS submitted an application for tax exemption under section 501(c)(4) of the Internal Revenue Code (IRC) in September 2010. To the best of our knowledge, Crossroads GPS has been operating as a “social welfare” organization for more than three and a half years without being granted section 501(c)(4) tax-status by the IRS.
We believe that the record is clear, as we have stated in numerous letters to the IRS, that Crossroads GPS, which was founded by Republican operative Karl Rove, is a campaign operation formed to hide the donors who are financing the campaign expenditures the group makes.
J. Gerald Hebert, Campaign Legal Center Executive Director commented on this latest letter to the IRS, saying, “The [Federal Election Commission]’s General Counsel has reviewed the activities of Crossroads GPS and issued a report that there ‘is reason to believe that Crossroads GPS had as its major purpose the nomination or election of federal candidates.’ It is absurd that the IRS has failed to act in this matter. Its failure to act hurts the American taxpayers and tears at the fabric of our democracy. The agency should fulfill its statutory responsibility and deny section 501(c)(4) tax-exempt status to Crossroads GPS.”
To read the full letter sent to the IRS, click here.
To read the FEC General Counsel’s recommendation (November 21, 2012), click here.
Citizens Congress 2014 Features Trevor Potter, Confronts Undue Influence of Money in Elections
On June 1, Trevor Potter joined the panel “Money in Politics: What Could Go Wrong?”, in San Luis Obispo, California to kick off Citizens Congress 2014, a weeklong symposium bringing together legislators, scholars, and advocacy organizations to confront the undue influence of money in elections. Before a packed house at the California Polytechnic State University’s College of Liberal Arts, Potter told the audience the “The minority of the American people control whether political action happens or doesn’t, based on what they want.”
Coalition for Open Democracy Event Features Trevor Potter as Keynote Speaker
On May 6, Trevor Potter delivered the keynote speech at the Coalition for Open Democracy’s event at the Capitol Center for the Arts in Concord, New Hampshire. Potter spoke about the U.S. Supreme Court’s decision in McCutcheon v. FEC and campaign finance reform issues. The Coalition for Open Democracy is a nonpartisan organization working to pass open and transparent campaign finance laws in New Hampshire.
To read more about the Coalition for Open Democracy, click here.
Senior Counsel Participates in National Institute on Money in State Politics Conference
From May 29 through June 1, Campaign Legal Center Senior Counsel Paul S. Ryan participated in a conference near Bigfork, Montana held by the National Institute on Money in State Politics (www.followthemoney.org) entitled 2014 Game Changers: Creating a New Ecology of Democracy. Ryan spoke on a panel entitled “What We Know: Transparency Challenges & Opportunities” with Ann Ravel, Vice Chair of the Federal Election Commission, Jared DeMarinis of the Maryland State Board of Elections, John Dunbar of the Center for Public Integrity, Sheila Krumholz of the Center for Responsive Politics and moderated by Heather McGhee of Demos.
Legal Center and National Press Club Regional Reporters Committee Hold Ethics Boot Camp for Reporters
On May 14, the Campaign Legal Center and the Regional Reporters Committee of the National Press Club put together the "Ethics Boot Camp for Reporters" at the National Press Club. Legal Center Policy Director Meredith McGehee was joined by Tom Susman of the American Bar Association, Sarah Bryner of the Center for Responsive Politics, Adam Rappaport of CREW and Kathy Kiely of the Sunlight Foundation to discuss ethics issues of interest, especially as the 2014 midterm elections approach, and to identify available resources on ethics issues. Among the topics covered were revolving door, travel, honest services and illegal gratuities, the congressional ethics process, leadership PACs and personal use of campaign funds.
To access a public weblink for ethics resources created for the event, click here.
Trevor Potter Talks Money in Politics with Rep. Walter Jones on Washington Watch
Campaign Legal Center President Trevor Potter appeared on “Washington Watch” this month as the guest of Rep. Walter Jones (R-NC). The two Republicans discussed the role of money in politics in the wake of a string of controversial U.S. Supreme Court decisions overturning longstanding Court precedent and explored potential avenues of reform to the current campaign finance system.
To view June’s Washington Watch, click here.
Campaign Finance and McCutcheon Decision the Subjects of Radio Discussion between Sen. Angus King and Trevor Potter
On May 10, Trevor Potter spoke with Senator Angus King (I-ME) on his radio program Inside Maine, which airs on NewsRADIO 560 WGAN in Portland, Maine. Potter and King discussed the impact of ‘Dark Money’ on our elections and how the how the U.S. Supreme Court’s decision in McCutcheon v. FEC will affect campaign finance in the 2014 midterms, as well as Potter’s recent testimony in front of the Senate Rules Committee.
To listen to the discussion, click here.