CLC Update May 18, 2009

  1. Files Amici Brief in Disclosure Case
  2. CLC Director Issues Statement in Response to Nomination of John Sullivan to the FEC
  3. CLC President Participates in Campaign Finance Reform Conference
  4. Legal Center Staff Appear at Redistricting Conference


Files Amici Brief in Disclosure Case

On April 24, 2009, the Legal Center, along with Democracy 21, filed an amici brief in Koerber v. FEC with the Fourth Circuit Court of Appeals to defend the electioneering communications disclosure provisions in the Bipartisan Campaign Reform Act (BCRA).

Koerber concerns a challenge brought by the Committee for Truth in Politics (CTP) and others to BCRA's electioneering communications disclosure provisions as applied to two television ads that CTP ran shortly before the 2008 Presidential election attacking the policy positions of then-Democratic Presidential nominee, Barack Obama. Although the ads met the statutory definition of "electioneering communications," plaintiffs argued that the ads nevertheless should be exempted from disclosure pursuant to Supreme Court's recent decision in Wisconsin Right to Life v. FEC ( WRTL II ), which found that only express advocacy or the "functional equivalent of express advocacy" could be subject to BCRA's "electioneering communications" funding prohibition. According to plaintiffs, because their ads did not meet WRTL II’s standard for the "functional equivalent of express advocacy," they could not constitutionally be subject to any regulation - even a disclosure requirement. The U.S. District Court for the Eastern District of North Carolina rejected this argument and denied plaintiffs' motion for preliminary injunction on October 29, 2008. Plaintiffs appealed to the Fourth Circuit.

The Legal Center's amici brief urged the Court of Appeals to affirm the district court's decision. The brief stressed that BCRA's disclosure requirements had been upheld by the Supreme Court in McConnell v. FEC just five years ago by an 8-1 vote and that the WRTL II decision in no way disturbed McConnell’s holding. Amici also argued that CTP's assertion that only express advocacy or its functional equivalent can be subject to disclosure is contrary to a substantial number of Supreme Court cases approving the disclosure of issue advocacy relating to lobbying and ballot measure advocacy.


CLC Director Issues Statement in Response to Nomination Of John Sullivan To The FEC

On May 1, 2009, Campaign Legal Center Executive Director, J. Gerald Hebert, issued a statement expressing concern about campaign finance positions taken by John Sullivan, who was recently nominated to the Federal Election Commission (FEC). As a labor union lawyer, Mr. Sullivan criticized significant elements of McCain-Feingold and took extreme deregulatory positions on campaign finance issues. In the statement, Hebert noted a position that Sullivan took in the wake of the Supreme Court 2007 decision in Wisconsin Right to Life (WRTL) v. FEC, when he urged the FEC to go far beyond the Court's ruling by urging that the FEC cease enforcing "electioneering communication" disclosure requirements that were not even addressed in the WRTL case.


CLC President Participates In Campaign Finance Reform Conference

On May 8, Campaign Legal Center President, Trevor Potter, participated as a panelist at a "Money in Politics 2009: New Horizons for Reform," a Brennan Center for Justice Conference held at the National Press Club.

Potter appeared with other noted campaign finance attorneys on the panel "Money, Politics, and the Constitution: Is campaign finance reform on a collision course with the Supreme Court?" The legal experts focused on the recent increase in constitutional challenges to campaign finance reform in federal and state courts. The panel discussed upcoming cases and a series of decisions adverse to existing campaign finance laws handed down by the Supreme Court since the arrival of Chief Justice John Roberts and Justice Samuel Alito.


Legal Center Staff Appear At Redistricting Conference

On May 4, Campaign Legal Center staff presented and moderated at a redistricting reform conference at the Hudson Institute cosponsored by iSolon. Executive Director J. Gerald Hebert delivered an analysis and update of numerous redistricting reform proposals in state legislatures across the country and fielded questions from the audience. Communications Director David Vance moderated a panel on recent reform efforts that included representatives from organizations involved in California's successful redistricting reform ballot initiative Proposition 11, an upcoming ballot initiative in Florida, and a staff member from the office of Congressman John Tanner (D-TN) who reported on plans to introduce reform legislation in the coming weeks.