CLC Update October 5, 2009

  1. Legal Center Files Brief in SpeechNow '527 Group' Case
  2. D.C. Circuit Invalidates FEC Regulation in Far-Reaching Decision
  3. Legal Center Files Amici Curiae Brief in Ninth Circuit Contribution Reimbursement Case
  4. Executive Director Addresses Southern Legislative Conference on Redistricting
  5. Reform Groups Urge Support for Office of Congressional Ethics
  6. Legal Center Staff Address Washington Intern Program
  7. Campaign Finance and Voting Right Overview to American University Students


Legal Center Files Brief in SpeechNow '527 Group' Case

On September 30, 2009, The Campaign Legal Center and Democracy 21, filed an amici curiae brief in D.C. Circuit Court of Appeals in v. FEC, a challenge to contribution limits and disclosure requirements for so-called '527 groups.'

Plaintiff argues that because makes only independent expenditures, the state interest in preventing actual and apparent corruption does not justify its regulation as a political committee. Specifically, challenges the $5,000 contribution limit and the comprehensive disclosure requirements applicable to political committees.

The brief filed by the Legal Center and Democracy 21 highlights that the Supreme Court's McConnell v. FEC decision upheld the "soft money" provisions in BCRA, which imposed federal limits on contributions to national and state parties, even If the contributions were ultimately used for independent purposes. The McConnell decision, argues the brief, thus confirms that the state's anti-corruption interest extends to limits on contributions to political committees even if they make only independent expenditures. The brief also chronicled the role played by 527 groups in the 2004 and 2006 elections, describing how such groups were closely tied to candidates and party committees and often served as "effective conduits for donors desiring to corrupt federal candidates and officeholders."

On July 1, 2008, the U.S. District Court for the District of Columbia denied plaintiff’s motion for a preliminary injunction in the case v. FEC.


D.C. Circuit Invalidates FEC Regulation in Far-Reaching Decision

On September 18, 2009, the D.C. Circuit Court of Appeals invalidated key FEC regulations that aimed to prevent federal political committees from spending "soft money," i.e., funds not in compliance with federal contribution restrictions, to influence federal elections.

In 2005, EMILY's List challenged the constitutionality of two regulations adopted by the FEC in 2004. The "allocation" regulation governed how much federal hard money a federal political committee must use to fund its "mixed" or "generic" political activities that affect both federal and non-federal elections, such as voter mobilization efforts. The FEC's "solicitation" regulation provided that a "contribution" includes funds raised in response to solicitations that indicate that the money will be used "to support or oppose" the election of federal candidates. These regulations were upheld by the district court in their entirety on July 31, 2008.

In its September 18 decision, the D.C. Circuit not only reversed the district court and invalidated these regulations, but also resolved issues not even before the court, calling into question the constitutionality of limits on contributions to independent political committees enacted 35 years ago. The Court's decision thus has the potential to facilitate a return to the massive soft money spending by 527 groups see in prior elections.

On March 12, 2009, the Legal Center, with Democracy 21, filed an amici brief to defend the FEC regulations, arguing that they were consistent with the First Amendment and represented a reasonable exercise of the FEC's statutory authority.


Legal Center Files Amici Curiae Brief in Ninth Circuit Contribution Reimbursement Case

On September 23, 2009, the Campaign Legal Center, together with Democracy 21, filed an amici curiae brief in the U.S. Court of Appeals for the Ninth Circuit in U.S. v. O'Donnell—a federal criminal prosecution of an individual who made illegal contributions in the names of his employees by arranging for the employees to contribute to John Edwards' presidential campaign committee and then reimbursing the employees for the contributions. Federal law prohibits the making of contributions "in the name of another," yet the federal district court dismissed two counts of an indictment alleging violation of this federal law based on a misinterpretation of the statute.

The district court incorrectly concluded that the federal law ban on contributions "in the name of another" only prohibits using a false name when making a contribution—not using a conduit who is reimbursed for the contribution. Explaining its (mis)understanding of the law, the district court correctly noted that the federal law does not prohibit the use of a "conduit" to make a contribution, but failed to acknowledge the abundantly clear federal law requirement that a conduit report to the recipient candidate and to the Federal Election Commission the identity of the original source of the contributed funds. The Legal Center explained in its brief to the Ninth Circuit the well-established and harmonious relationship between the federal law conduit disclosure requirements and the federal law ban on making contributions "in the name of another." The Legal Center further explained that this long standing and common sense interpretation of federal law has been recognized by the Supreme Court and the Ninth Circuit alike.


Executive Director Addresses Southern Legislative Conference on Redistricting

On August 15, 2009, Campaign Legal Center Executive Director J. Gerald Hebert addressed the 63rd Annual Meeting of the Southern Legislative Conference in Winston-Salem, North Carolina concerning redistricting, as states gear up for the coming 2011 round of reapportionment and redistricting. In a presentation to the Legislative Service Agency Directors Group entitled "The Legal and Political Environment in the New Administration", Hebert addressed changes in the pertinent law over the last decade and the role that the Department of Justice will play in the process, particularly in many of the member states of the Conference that are covered under Section 5 preclearance provisions of the Voting Rights Act.


Reform Groups Urge Support for Office of Congressional Ethics

On October 2, 2009, the Legal Center joined in a letter to House Speaker Nancy Pelosi and House Republican Leader John Boehner, urging them to support the Office of Congressional Ethics (OCE), and the House Resolution and OCE rules implementing the resolution that limit the ability of the House Ethics Committee to remove ethics matters from the OCE.

In the letter, the organizations expressed "concerns about a recent incident in which the House Ethics Committee publicly challenged the performance of the OCE regarding an ethics matter forwarded to the Committee by the OCE."

The reform groups also sent to Speaker Pelosi and Republican Leader Boehner a copy of a letter of support they had sent to OCE about this matter on September 30, 2009.

The reform groups sending the letter to the Speaker and Republican Leader, and to OCE, include Campaign Legal Center, Common Cause, Democracy 21, League of Women Voters, Public Citizen and U.S. PIRG.


Legal Center Staff Address Washington Intern Program

On September 28, 2009 Campaign Legal Center FEC Program Director Paul S. Ryan and Communications Director David Vance addressed and took questions from students participating in the Washington Internship Institute program. The topics included the history of campaign finance reforms, past, present, and future court challenges to existing laws and regulations, the explosion of campaign costs in recent decades, and the activist role being played by the Roberts Court on campaign finance issues.


Campaign Finance and Voting Right Overview To American University Students

On September 22, J. Gerald Hebert, the Legal Center's Executive Director and Director of Litigation, addressed two different groups of students at American University in Washington, DC. Hebert gave an overview of campaign finance law to one group of visiting students, which included the goals and positive consequences of the Bipartisan and Campaign Reform Act. He also gave an overview of the Voting Rights Act and the recent Supreme Court decision in NAMUDNO v. Holder to another group of students.