CLC Update September 11, 2009

  1. Supreme Court Oral Argument in Pivotal Citizens United Case
  2. Legal Center Helps Launch Committee to Modernize Voter Registration
  3. Court of Appeals Upholds Lobbying Disclosure
  4. Three-Judge District Court Hears Argument in RNC v. FEC
  5. Legal Center Marshals Reform, Taxpayer, and Business Groups To Urge Hearings on Redistricting Reform Bill
  6. NJ State Court of Appeals Dismisses Ocean City "Home Rule" Lawsuit
  7. Court Strikes Blow to Connecticut Public Financing Program
  8. Legal Center, Civil Rights Group & Reformers Agree to Redistricting Principles
  9. Staff Members Hit Talk Show Circuit around Citizens United Re-argument
  10. Legal Center's Paul S. Ryan Speaks at GW Law School Citizens United Event


Supreme Court Oral Argument in Pivotal Citizens United Case

On September 9, 2009, the Supreme Court heard oral argument in Citizen United v. FEC after requesting supplemental briefing on the question of whether the Court should overrule its 1990 decision in Austin v. Michigan Chamber of Commerce and part of 2003 decision in McConnell v. FEC. These two key decisions affirmed the constitutionality of restrictions on corporate election-related spending.

On July 31, 2009, The Campaign Legal Center and Democracy 21, on behalf of themselves and five other non-profit groups, filed an amici brief with the Supreme Court, arguing that that overturning these decisions would effectively strike down the 60-year-old federal restriction on corporate expenditures in federal elections, as well as the statutes in 24 states that similarly restrict corporate spending. Amici further argued that the invalidation of these statutory checks on corporate expenditures would, in turn, expose federal elections to the corrosive and distorting effects of corporate money for the first time in many decades.


Legal Center Helps Launch Committee to Modernize Voter Registration

On August 31, 2009 Campaign Legal Center staff helped launch the "Committee to Modernize Voter Registration". The organization is co-chaired by Legal Center President Trevor Potter and Kerry-Edwards 2004 general counsel Marc Elias and includes a distinguished array of Democratic and Republican former Members of Congress, Secretaries of State, local elections administrators and election law experts dedicated to bringing the voter registration system into the 21st century by automating the outmoded system that relies on paper forms being filled out by voters and manually processed by local elections officials.

Committee members include former UN Ambassador and Senator John Danforth (R-MO); former Senate Majority Leader Tom Daschle (D-SD); former U.S. Representatives Harold Ford, Jr. (D-TN) and Susan Molinari (R-NY); Pennsylvania Secretary of State Pedro A. Cort├ęs and former Washington Secretary of State Ralph Munro; local election officials Matthew Damschroder, Deputy Director, Franklin County Board of Elections (OH) and Dean Logan, Registrar-Recorder/County Clerk, Los Angeles County; and elections experts Dr. Thomas Mann, senior fellow at the Brookings Institution, Norm Ornstein, co-director of the American Enterprise Institute's Election Reform Project, and Doug Chapin, director of Election Initiatives for the Pew Center on the States, a division of the Pew Charitable Trusts.

The Committee asserts that the best way to modernize the voter registration system would be to use existing databases to automatically register voters. Importantly, this would remove the role of third parties in registering eligible voters. Additionally, the Committee is advocating for a system that will allow a registration to be portable so that voters are not forced to re-register when they move within a state, and will include a fail-safe mechanism for any Election Day problems.


Court Of Appeals Upholds Lobbying Disclosure

On Tuesday, September 8, 2009, the D.C. Circuit Court of Appeals affirmed the constitutionality of the recently-enacted Honest Leadership and Open Government Act (HLOGA) in National Association of Manufacturers (NAM) v. Taylor . The case concerns a First Amendment challenge brought by NAM to a provision in HLOGA that requires a lobbying coalition, like NAM, to disclose those member organizations that fund and actively participate in the coalition's lobbying efforts.

The Court explained that the HLOGA provision at issue sought to "close a loophole[] in current law" that had allowed lobbying coalitions to conceal their membership and to deprive the public of information about the real parties-in-interest behind their lobbying effort. It then held that the law served compelling governmental interests, noting that "[t]ansparency in government, no less than transparency in choosing our government, remains a vital national interest in a democracy."

On June 25, 2008, the Legal Center, along with Democracy 21 and Public Citizen, filed an amici brief with the Court of Appeals to defend the constitutionality of the challenged disclosure provision. Amici argued that the Court of Appeals should uphold the decision of the district court to dismiss NAM's lawsuit and to reject NAM's claims that the HLOGA provision violates the First Amendment or is unconstitutionally vague.


Three-Judge District Court Hears Argument in RNC v. FEC

On August 27, 2009, a three-judge panel of the U.S. District Court for the District of Columbia heard oral argument in RNC v. FEC. The RNC, together with the California Republican Party and Republican Party of San Diego County, filed suit just days after last November's election, challenging the "soft money" provisions of BCRA. BCRA prohibits national party committees from raising or spending soft money (i.e. money not in compliance with federal contribution amount limits and source restrictions) and also prohibits state parties from using soft money to pay for federal election activities such as voter registration or GOTV drives. A previous attempt by the Republican National Committee and the California Republican Party to overturn BCRA's soft money restrictions was rejected by the U.S. Supreme Court in McConnell v. FEC in 2003.

The Campaign Legal Center represents the original cosponsors of the Bipartisan Campaign Reform Act of 2002 (BCRA), Senators John McCain (R-AZ) and Russ Feingold (D-WI) and former Representatives Christopher Shays (R-CT) and Marty Meehan (D-MA), as amici curiae in the case.


Legal Center Marshals Reform, Taxpayer, and Business Groups to Urge Hearings On Redistricting Reform Bill

On August 21, 2009 a broad range of reform, business, and taxpayer organizations urged House Judiciary Committee Chairman John Conyers (D-MI) and Ranking Member Lamar Smith (R-TX) to hold hearings on the Fairness and Independence in Redistricting (FAIR) Act (H.R. 3025). The legislation to improve the corrupted redistricting process that allows politicians to handpick the voters they will represent was introduced by Representatives John Tanner (D-TN) and Mike Castle (R-DE) in July.

Previous versions of the FAIR Act were introduced by Rep. Tanner in the 109thand 110th Congresses as were separate redistricting reform bills from Rep. Zoe Lofgren (D-CA). None of the bills was ever granted a hearing.

The reform groups calling for hearings include the Campaign Legal Center, Committee for Economic Development, Common Cause, FairVote, iSolon, Lawyers' Committee for Civil Rights Under Law, National Taxpayers Union, Public Citizen, and U.S. PIRG.

To read the full letter to the Chairman and the Ranking Member, click here.


NJ State Court Of Appeals Dismisses Ocean City "Home Rule" Lawsuit

On August 6, 2009, the Superior Court of New Jersey, Appellate Division, dismissed plaintiffs' appeal in Fenichel v. City of Ocean City, a case in which community activists from Ocean City, NJ, sought a declaratory judgment that the city has the "home rule" authority to enact a municipal public campaign financing ordinance. In 2006, at a city council meeting at which a public financing ordinance was scheduled to be introduced, the city solicitor advised the city council—a majority of which supported the public financing ordinance—that the city lacks the "home rule" authority to enact a public financing ordinance. The city solicitor instructed supporters of the public financing ordinance to go to court and obtain a declaratory judgment on the matter if they disagreed with his advice. Supporters of the ordinance did so, but the trial court ruled that the city lacks the home rule authority to enact a public financing ordinance. Plaintiffs appealed and the Campaign Legal Center agreed to represent them in their appeal.

The appellate court did not rule on the question of whether the city possesses the "home rule" authority to enact a public financing ordinance but, instead, dismissed the case on the basis that the legal issue was not yet ripe for review. The court reasoned that, because the ordinance was never formally introduced to or enacted by the city council, there was no justiciable controversy between the plaintiffs and the defendants.

In the aftermath of the appellate court decision, the Ocean City activists have decided to attempt once again to introduce and pass a public financing ordinance through the city council and, if that fails, to attempt to pass the ordinance via the ballot initiative process. The Campaign Legal Center continues to assist the activists in revising the draft ordinance and will be serving as consultants throughout the legislative and, if necessary, ballot initiative processes.


Court Strikes Blow to Connecticut Public Financing Program

On August 27, 2009, a district court in Connecticut struck down elements of Connecticut's recently-enacted public financing law in the consolidated cases, Green Party of Connecticut v. Garfield and Association of CT Lobbyists v. Garfield. This reform was enacted in response to several high-profile corruption scandals involving state elected officials, including former Connecticut Governor John Rowland.

The Court first found that the eligibility and qualification requirements of the public financing program impose an unconstitutional, discriminatory burden on minor party candidates' First Amendment-protected right to political opportunity.

The Court also found that the public financing program's "trigger provisions" unconstitutionally burden the plaintiffs' exercise of their First Amendment rights. These provisions provide additional public funds to participating candidates when the expenditures of non-participating candidates or independent spenders exceed established trigger points.

The Legal Center serves as co-counsel for the intervening defendants, Connecticut Citizen Action Group and Common Cause of Connecticut, and candidates for state office, with the Brennan Center, Democracy 21, Donald J. Simon of Sonosky, Chambers, Sachse, Endreson & Perry, and the law firms, WilmerHale and Hogan & Hartson, L.L.P.


Legal Center, Civil Rights Group & Reformers Agree To Redistricting Principles

On August 19, 2009, the Campaign Legal Center, the League of Women Voters and Americans for Redistricting Reform announced a "Statement of Essential Principles on Redistricting" supported by a diverse set of reform groups, civil right organizations, and academics. Many of those signing on gathered in July at the Pocantico Redistricting Conference. The Legal Center, in partnership with the League, convened the meeting to explore ways that the public can best participate in the redistricting process in 2011 and beyond.

The conference brought together organizations and individuals from across the nation to discuss ways to increase the role citizens play in the process, problems with the system in general and potential short- and long-term fixes to the process of redistricting. Those signing on to the principles ranged from Common Cause and the League of Women Voters to the National Association of Latino Elected and Appointed Officials (NALEO) and Southern Coalition for Social Justice.

"It is so important to bring a broad cross-section of stakeholders to the table because as Proposition 11 in California clearly showed, redistricting reform can be incredibly controversial - pitting against each other groups that all agree the current process is broken," said Campaign Legal Center Executive Director J. Gerald Hebert. "Quite a few of the individuals and organizations gathered for the conference fought on opposite sides of hotly contested Prop 11 ballot initiative and yet were able to agree that more transparency and public participation is needed in the redistricting process."

The groups agreed to continue working together through the 2010 Census and the next round of redistricting to expand the public's role in the process to help restore the ideals of a representative democracy.

To read the principles and a full list of the organizations and individuals signing on, click here.


Staff Members Hit Talk Show Circuit around Citizens United Re-Argument

Campaign Legal Center staff has been in demand to discuss the re-argument of Citizens United, a key campaign finance case before the United States Supreme Court on Wednesday September 9th. Below are a few of the talk show and web chat appearances by Legal Center attorneys.

On September 4, CLC President Trevor Potter appeared nationally on the PBS program Bill Moyers Journal to discuss the Supreme Court's oral argument in Citizens United. Appearing along with Potter was Floyd Abrams, who represents Senator Mitch McConnell in the case. The view the video segment or read the transcript, click here.

Associate Legal Counsel Tara Malloy appeared on NPR's "On Point" on Thursday, September 3, 2009 in an hour-long discussion of the case. Appearing with Malloy were longtime USA Today Supreme Court Correspondent Joan Biskupic and George Mason University assistant professor of law Alison Hayward. To listen to the show click here.

On September 3, Campaign Legal Center associate legal counsel Paul S. Ryan discussed the case during a live web chat hosted by the Center for Responsive Politics, site. Joining Ryan on the panel fielding questions from the public, press, and bloggers were CRP Executive Director Sheila Krumholz, Communications Director Dave Levinthal and Capital Eye reporters Lindsay Renick Mayer and Michael Beckel. To view the chat, click here.

Tara Malloy appeared on Pacifica Radio's Morning Review with Roy Ulrich on September 11, 2009 to discuss the re-argument before the Supreme Court and the potential outcomes. 


Legal Center's Paul S. Ryan Speaks At GW Law School Citizens United Event

On Tuesday, September 8, CLC Associate Legal Counsel Paul S. Ryan spoke at the George Washington University Law School Election Law Society's event: "Citizens United : The Death of Campaign Finance Reform?" The panel discussion was moderated by Alan B. Morrison, Associate Dean for Public Interest and Public Service, GW Law School. Speaking on the panel along with Ryan were Larry Noble, Skadden, Arps, Slate, Meagher & Flom, LLP, and John Samples of the Cato Institute.