CLC Update March 26, 2010

  1. Executive Director Criticizes Unity08 Decision
  2. Legal Center, League of Women Voter Release Redistricting Reform Report
  3. CLC Files Supplemental Comments with FEC Following “Coordination” Rulemaking Hearing
  4. CLC Files Comments with FEC in “National Democratic Redistricting Trust” Matter
  5. CLC Attorney at FEC Rulemaking Hearing on Participation by Federal Officeholders at Non-Federal Fundraising Events
  6. CLC President and Executive Director Speaks at Election Law Symposium
  7. Legal Center Attorney Joins Panel Discussion of Citizens United
  8. Redistricting Transparency Bill Hailed by Legal Center


Executive Director Criticizes Unity08 Decision

On March 3, 2010, Executive Director J. Gerald Hebert issued a statement condemning the D.C. Circuit of Appeals decision in Unity08 v. Federal Election Commission. The court ruled that Unity08, a self-described "nascent political party," was not a political committee subjection to federal campaign finance law.

Hebert criticized the decision on the grounds that the court ignored federal law and Supreme Court precedent by declaring that Unity08, a group whose main purpose was to nominate and elect a Presidential and Vice Presidential candidate, was not a political committee. Furthermore, his statement noted that the court's decision undermines the anti-corruption purpose of existing campaign finance laws by introducing possible loopholes.

Hebert strongly urged President Obama to take action and nominate judges that are willing to respect precedent, the law, and Congress's intent.


Legal Center, League of Women Voter Release Redistricting Reform Report

On March 25, the Campaign Legal Center and the League of Women Voters of the United States released “Developing an Action Agenda for Redistricting in 2011", a report stemming from a conference convened to bring a broad spectrum of stakeholders and experts to the table to seek common ground.

The report highlights the consensus of participants that greater transparency and citizen participation in redistricting are the keys to improving our nation's democracy, despite the fact that the organizations and individuals attending the conference held different views on how to reform the redistricting process itself.

Also included in the report is model legislative language, drafted by the Legal Center, to bring transparency to the process of redrawing legislative district lines.

The conference, convened by the Legal Center and the League, was held at the Pocantico Conference Center with generous support from the Rockefeller Brothers Fund, the Joyce Foundation, and the Ford Foundation.


CLC Files Supplemental Comments With FEC Following "Coordination" Rulemaking Hearing

On March 15, the Campaign Legal Center, together with Democracy 21, filed supplemental comments with the FEC in response to questions posed by Commissioner McGahn to Paul S. Ryan of the Campaign Legal Center at the Commission's March 3 rulemaking hearing regarding coordinated communications under 11 C.F.R. § 109.21. Commissioner McGahn posed a series of hypothetical scenarios to Ryan at the hearing. The CLC's comments filed this week explain why the various hypotheticals would not fall within the "coordination" rule advocated by the CLC (employing the so-called PASO standard).

The Legal Center further suggested in its supplemental comments that, in addition to crafting clever hypotheticals that seek to probe the outer limits of the proposed PASO coordination rules, the FEC should actually consider those real life ads that fall squarely within the heartland of the PASO test—and ask whether those ads should be excluded from the coordination rule outside the pre-election time frames, and whether by so doing, candidates should be permitted to freely coordinate with outside spenders on the content and airing of such ads that overtly promote a candidate's campaign. This is a real question—not a hypothetical—which the Commission completely ignored at its March 3 hearing. Many witnesses were advocating the adoption of a much narrower "express advocacy" standard—and none of those witnesses were subjected by Commissioner McGahn or any other Commissioner to questions about such real-life PASO ads, hundreds examples of which were submitted to the FEC by the Legal Center in its last "coordination" rulemaking. We urge the Commission to consider the impact of its proposed rules on such real-life ads before it adopts a final rule.


CLC Files Comments with FEC In "National Democratic Redistricting Trust" Matter

On March, 15, the Campaign Legal Center, together with Democracy 21, filed comments with the FEC in regard to the Advisory Opinion Request (AOR 2010-03) submitted by the National Democratic Redistricting Trust seeking the Commission's opinion as to whether "Members of Congress may solicit funds for the Trust outside the limits and source restrictions prescribed by" federal campaign finance laws to pay attorney’s fees and other costs associated with the legislative redistricting process that will follow the 2010 census.

The Legal Center urged the FEC to advise that federal law prohibits federal candidates and officeholders from soliciting nonfederal funds (i.e., soft money) in connection with any election—and that redistricting is most certainly connected to elections. The Legal Center pointed out that both the FEC and the Democratic National Committee correctly argued in their briefs filed recently in Republican National Committee v. FEC—a lawsuit by the RNC challenging the federal law ban on parties raising soft money for redistricting and other purposes—that redistricting activities occur "in connection with elections." For the FEC to decide otherwise in this advisory opinion proceeding, we argue, would be inconsistent with, and severely undermine, the FEC's current position before the court in the RNC case.

(The Legal Center's Executive Director, J. Gerald Hebert, took no part in the consideration of this matter)


CLC Attorney at FEC Rulemaking Hearing on Participation By Federal Officeholders At Non-Federal Fundraising Events

On March 16, the CLC's FEC Program Director Paul S. Ryan testified at the FEC's rulemaking hearing on proposed revisions to its regulations regarding participation by federal candidates and officeholders at nonfederal fundraising events under 11 C.F.R. § 300.64. The FEC was required by the D.C. Circuit Court's decision in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) ("Shays III") to repeal its regulation allowing federal candidates and officeholders to speak "without restriction" (e.g., solicit soft money) at state, district and local party fundraising events.

The Bipartisan Campaign Reform Act of 2002 ("BCRA") provides that federal candidates and officeholders may not "solicit, receive, direct, transfer or spend" funds unless the funds comply with the amount limitations and source prohibitions of the Federal Election Campaign Act. Notwithstanding this restriction, BCRA also states that federal candidates and officeholders are permitted to "attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party." Despite clear congressional intent to prohibit—and clear statutory language prohibiting—federal candidate and federal officeholder soft money fundraising in connection with state and local elections, the FEC in its 2002 rulemaking to implement these provisions concluded that federal candidates and officeholders were permitted to attend, speak, and appear as featured guests at State, district, and local party committee fundraising events "without restriction or regulation."

This rule was challenged and invalidated by the D.C. Circuit in Shays III. In its rulemaking to comply with the Shays III decision, the FEC is considering three alternative approaches. One would simply repeal the invalidated regulatory language, while the other two would elaborate on how federal candidates and officeholders may participate in nonfederal fundraisers and in pre-event publicity without violating the soft money solicitation ban. The CLC endorsed simply removing the invalidated language from the FEC's rules as the simplest, most straightforward means of complying with the Shays III decision, but did not oppose the Commission's adoption of either of the other two alternatives. All three alternatives, the CLC believes, comply with the Shays III court's order and are permissible interpretations of the statute.


CLC President and Executive Director Speak At Election Law Symposium

Legal Center President Trevor Potter, and Executive Director, J. Gerald Hebert, addressed the Fourth Annual Election Law Symposium at William and Mary Law School on March 18. Both attorneys sat on a panel entitled "Back to the Drawing Board: The 2010 Census and the Politics of Redistricting." Potter discussed the history of redistricting in America; highlighting the Supreme Court's initial reluctance to intervene in the process. Hebert followed by summarizing the importance of the information from the census and other sources plays in the development of districts. Furthermore, Hebert emphasized the political contentions that arise during redistricting, as legislators strive to protect their incumbency and ensure newly created districts will withstand legal challenges.


Legal Center Attorney Joins Panel Discussion of Citizens United

On March 16, Associate Legal Counsel Tara Malloy participated in a panel discussion of the impact of the latest campaign finance decision from the U.S. Supreme Court. "Citizens United and the Future of Campaign Finance Law" was co-hosted by the Institute for Justice and the Ayn Rand Center for Individual Rights. Malloy's fellow panelists included Steve Simpson of the Institute for Justice, Doug Kendall of the Constitutional Accountability Center, and Eric Daniels of the Clemson Institute for the Study of Capitalism.


Redistricting Transparency Bill Hailed By Legal Center

In a statement issued on March 24, Campaign Legal Center Executive Director J. Gerald Hebert praised the "Redistricting Transparency Act of 2010" (H.R. 4918), introduced by Rep. John Tanner (D-TN) and Rep. Michael Castle (R-DE). With the 2010 Census already underway and the bill would ensure that the ensuing redistricting process is opened up to allow effective public participation and transparency. The statement called for broad bi-partisan support of the on the legislation and for congressional hearings which have been denied too many previous legislative efforts to reform the redistricting process. Hebert condemned gerrymandering, "with politicians choosing voters instead of voters choosing their elected officials," and deemed the process a "grave disservice to our democracy" that "feeds the bitter partisanship and dysfunction on Capitol Hill."