Legal Center Weekly Report: July 7, 2011
Real Truth About Obama Challenge Rejected, Disclosure Requirements Upheld / Supreme Court Strikes Down Arizona Public Financing Law / Supreme Court Declines to Hear Challenge to Connecticut Public Financing Program / Request for Unlimited Candidate Solicitations for “Super PACs” Denied by FEC in Keeping with Legal Center Comments / FEC Upholds Stephen Colbert’s Right to Create a “Super PAC” but Denies Request for Expansion of Press Exemption / Summary Judgment Brief Filed in Van Hollen Suit Against FEC’s Ineffective Disclosure Rule / Legal Center Executive Director Presents Redistricting and Voting Rights Act Lecture at American University / Associate Legal Counsel Presents Campaign Finance Lecture at American University / Legal Center Executive Director Serves on ACS 2011 National Convention Redistricting Panel / Legal Center Executive Director Addresses Appellate Inn of Court / Legal Center FEC Program Director Marries Shermaine Mitchell / Legal Center Blog Highlights / Week in the News
Real Truth About Obama Challenge Rejected, Disclosure Requirements Upheld
On June 16, 2011 the U.S. District Court for the Eastern District of Virginia rejected a challenge to FEC rules that serve to establish federal political committee status and the scope of federal disclosure requirements in Real Truth About Obama (RTAO) v. FEC. The plaintiff RTAO challenged the much-contested “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the FEC’s methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status.
Associate Counsel Tara Malloy said in a press release that the “well-reasoned” decision would aid enforcement efforts and emphasized that “[t]he ruling means that the federal independent expenditure disclosure requirements are not limited to ‘magic words’ express advocacy, and that the FEC is permitted to do a multi-factored analysis of a group’s activities in determining its ‘major purpose.’”
In 2010, the Legal Center, along with Democracy 21, filed an amici brief with the district court supporting the challenged regulation and policy. The Legal Center and Democracy 21 have been participating in this case since 2008.
To read the 2010 brief, click here.
Supreme Court Strikes Down Arizona Public Financing Law
The U.S. Supreme Court, on June 27, 2011, struck down key provisions of Arizona’s state public financing program in another decision that will undermine the integrity of our elections. The 5-4 opinion throws into jeopardy the public financing programs of several states and municipalities that contain “trigger” provisions much like those struck down as part of Arizona’s program. The successful and popular program was passed by Arizona voters in 1998 after a wave of corruption scandals in the state.
“[The] decision runs counter to the spirit of the Buckley precedent, which found that public financing was enhancement, not an abridgement, of First Amendment values,” Legal Center Associate Counsel Tara Malloy said in a press release. But Malloy stressed that the “silver lining” to the ruling is that “it invalidates only one model of public financing and leaves open other avenues for reform. Citizens and legislators will simply have to work harder in the design of public financing programs to ensure that they clear the new constitutional hurdles created by the Roberts Court.”
The Campaign Legal Center, with Democracy 21, filed an amici curiae brief with the Supreme Court on behalf of eight public interest groups in support of the challenged trigger provisions of the Arizona program.
To read the amici brief, click here.
Supreme Court Declines to Hear Challenge to Connecticut Public Financing Program
On June 28, 2011 the U.S. Supreme Court denied certiorari in Green Party of Conn. v. Lenge, leaving undisturbed the decision of the Second Circuit Court of Appeals upholding the qualifying criteria of the Connecticut state public financing program.
The petitioners had argued that challenged the state eligibility and qualification requirements imposed on minor-party candidates as an unconstitutional, discriminatory burden. The Second Circuit, however, found that under "exacting" scrutiny, Connecticut's program does not unconstitutionally discriminate against minor-party candidates. This decision stands after the Supreme Court's denial of certiorari.
"This is good news for the health of public financing and particularly welcome in light of [the previous day’s] controversial ruling by the Supreme Court," Legal Center Counsel Tara Malloy said in a press release. "But even taking into account [the] McComish decision regarding Arizona's Citizens Clean Elections Act, it is now fair to surmise that public financing systems are on strong constitutional footing provided that they do not rely on 'trigger provisions.'"
Democracy 21’s pro bono legal team, which included lawyers from the law firm WilmerHale, Public Citizen and Democracy 21, took the lead in this case, representing intervening defendant Common Cause in the Supreme Court in the Green Party case. The Campaign Legal Center, lawyers from the Brennan Center for Justice and Hogan Lovells also represented the intervener defendants in the Supreme Court. To read the brief, click here.
Request for Unlimited Candidate Solicitations for “Super PACs” Denied by FEC in Keeping with Legal Center Comments
The Federal Election Commission voted unanimously on June 30, 2011, to issue an advisory opinion to Majority PAC and House Majority PAC making clear that federal officeholders and candidates are not permitted to solicit unlimited contributions from individuals, corporations and unions for federal “Super PACs.” While officeholders and candidates will be allowed to make solicitations for funds complying with the existing federal contribution limits and prohibitions, as some are already doing, the Commission, in keeping with comments filed by the Legal Center, declined to open yet another loophole in the law by allowing what would amount to illegal “soft money” solicitations.
“Refreshingly, the FEC came to a consensus when asked for its opinion on the permissibility of some clearly illegal practices,” said Associate Legal Counsel Tara Malloy in a press release. “Solicitations of unlimited corporate, labor and individual funds by federal candidates and officeholders are expressly prohibited by McCain-Feingold, and no court has questioned, much less overturned, those provisions.”
The advisory opinion request had been submitted to the FEC by two Democratic “Super PACs” after campaign finance reform opponent Jim Bopp announced that his Republican Super PAC (RSPAC) would ask federal officeholders, candidates and party officials to solicit unlimited contributions for RSPAC, and that it will earmark the funds raised by any Republican candidate for RSPAC for that candidate’s election.
On June 6, 2011, the Campaign Legal Center and Democracy 21 submitted comments to the FEC outlining that it is illegal for federal officeholders and candidates to solicit unlimited contributions for Super PACs. To read the full comments, click here.
FEC Upholds Stephen Colbert’s Right to Create a “Super PAC” but Denies Request for Expansion of Press Exemption
On June 30, 2011 the Federal Election Commission (FEC) approved in a 5-1 decision an advisory opinion that confirmed Comedy Central comedian Stephen Colbert’s ability to form Colbert Super PAC, but denied the comedian’s request for a significantly expanded “press exemption” that would have hidden political contributions from media corporations to PACs from public disclosure. The FEC’s opinion was consistent with the position urged by the Legal Center in written comments filed in the proceeding.
“We are pleased that the Commission has adopted a limited, reasonable understanding of the press exemption and refused to open up another loophole in our campaign finance laws,” said Associate Counsel Tara Malloy in a press release.
Although Mr. Colbert is free, as is any person, to establish a Super PAC that receives unlimited individual, corporate and union political contributions, Mr. Colbert asked the FEC to exempt from disclosure laws potentially massive in-kind contributions to his Super PAC from the Viacom corporation, which owns, produces and distributes Mr. Colbert’s television show.
Consistent with the comments filed by the Legal Center, the FEC advised Mr. Colbert that, although Viacom’s payment of the usual operating costs of his television show—including discussion on the show of his Super PAC—are exempt from disclosure laws under the “press exemption, the FEC rejected Mr. Colbert’s argument that costs of other Super PAC activities unrelated to the operation of the television show paid for by Viacom should likewise be exempt from disclosure. The Commission advised Mr. Colbert that Viacom’s production of political ads to his Super PAC to distribute outside of his show (including airing as paid advertisements on other shows and networks or as content for the Committee’s website), and Viacom’s payment of expenses to administer and operate the Super PAC, “would not fall within the press exemption, because these activities are not legitimate press functions.”
The Legal Center filed comments with Democracy 21 on May 27, 2011 to the FEC urging them to deny the request to significantly expand the so-called “press-exemption” to a number of federal election laws.
Through his private practice, Legal Center President Trevor Potter is representing Mr. Colbert and disqualified himself from any of the Legal Center's activities in connection with the Colbert Super PAC.
To read the comments filed by the Campaign Legal Center and Democracy 21, click here.
Summary Judgment Brief Filed in Van Hollen Suit Against FEC’s Ineffective Disclosure Rule
Representative Chris Van Hollen (D-MD) filed a summary judgment brief on July 1, 2011 in his ongoing legal challenge to an FEC regulation that has improperly narrowed the scope of the McCain-Feingold law’s disclosure requirements and allowed nonprofit 501(c)(4) advocacy groups, 501(c)(6) business associations and others to spend millions on “electioneering communications” while keeping secret the donors who funded these ads.
“In 2007, the FEC adopted a little-noticed regulation that gutted the McCain-Feingold disclosure requirements,” stated Tara Malloy, Associate Counsel, in a press release. “The 2010 congressional elections made painfully clear exactly how damaging this new FEC rule was to political transparency. In 2010, groups making electioneering communications disclosed the funders of less than 10 percent of the $79.9 million spent on electioneering communications.”
The Campaign Legal Center is part of Representative Van Hollen’s pro bono legal team, which is led by Roger Witten of the law firm WilmerHale and Fred Wertheimer of Democracy 21.
To read the summary judgment brief and original complaint, click here.
To read further Legal Center commentary on the disclosure problems in the 2010 elections, click here.
Legal Center Executive Director Presents Redistricting and Voting Rights Act Lecture at American University
Legal Center Executive Director J. Gerald Hebert lectured at the Summer Institute at Washington College of Law at American University, in Washington, DC on June 21, 2011. Hebert was invited to teach a three-hour class entitled Redistricting and the Voting Rights Act: Trends & New Issues. The Summer Institute is a two-week summer legal education program where nationally recognized lawyers visit to teach timely topics on the cutting edge of developments in law and government. The courses taught in the first week focus on updates and new developments in lobbying, administrative and regulatory process, Supreme Court advocacy, and election and campaign finance law. In Week Two, courses address developments in the changing landscape of financial and economic regulation and the new world of banking and security.
Associate Legal Counsel Presents Campaign Finance Lecture at American University
On June 22, 2011, Legal Center Associate Legal Counsel Tara Malloy also served as a guest lecturer at the Summer Institute at American University’s Washington College of Law. Ms. Malloy’s three-hour presentation was entitled “Campaign Finance Law: Challenges & Opportunities in the 2012 Election Cycle.”
Legal Center Executive Director Serves on ACS 2011 National Convention Redistricting Panel
On June 17, 2011 Campaign Legal Center’s Executive Director J. Gerald Hebert served on the Redistricting in 2011 panel at the American Constitution Society’s 10th Annual National Convention in Washington, DC.
To see the full convention schedule, click here.
Legal Center Executive Director Addresses Appellate Inn of Court
On June 23, 2011 Executive Director J. Gerald Hebert addressed a meeting of the Edward Coke Appellate Inn of Court in Washington. Hebert spoke on the topics of campaign finance reform and redistricting.
Legal Center FEC Program Director Marries Shermaine Mitchell
On June 21, 2011, the Legal Center’s FEC Program Director Paul S. Ryan married Shermaine Mitchell in Washington, DC. The couple honeymooned in Puerto Rico. Congratulations to the happy couple!
Legal Center Blog Highlights
Each week, the Legal Center staff posts blog entries on its site, www.clcblog.org. Click to read the recent blogs: House Votes Not To Confer More Power on Feckless FEC and TV Stations More Concerned about Money than Truth in Advertising, or to sign up for the blog, click here.
Week in the News
To read a variety of this week’s editorials and articles on a variety of Campaign Legal Center issues, please click here.