CLC Update July 20, 2015
- Supreme Court Rejects Arizona Legislators’ Bid to Defy Citizens’ Will and Regain Ability to Gerrymander Districts
- En Banc DC Circuit Unanimously Rejects Challenge to Federal Contractor Contribution Ban
- Third Circuit Court Upholds Delaware Dark Money Disclosure Law
- Florida Supreme Court Strikes Down Legislature’s Gerrymandered Congressional Map
- Wisconsin Supreme Court Ignores Conflicts of Interest & All Relevant Precedent to Strike Down State Restrictions on Coordinated Spending and End Scott Walker John Doe Investigation
- Tenth Circuit Urged to Overturn Attorneys’ Fees Award in Another Instance of Albuquerque’s Pattern of Citizen Intimidation
- Short Film About Victim of Texas Voter ID Law Shows Why We Need to Pass The Voting Rights Advancement Act
- Bipartisan Overhaul of Dysfunctional FEC Introduced by Representatives Kilmer and Renacci
- Watchdogs Urge FCC to Enforce & Improve Broadcaster Public File Accessibility Rules
- CLC Executive Director a Featured Panelist in ACS Supreme Court Term Review
- Legal Center President Addresses Crested Butte Policy Forum
Supreme Court Rejects Arizona Legislators’ Bid to Defy Citizens’ Will and Regain Ability to Gerrymander Districts
On June 29 in Arizona State Legislature v. Arizona Independent Redistricting Commission, the United States Supreme Court upheld an Arizona state constitutional amendment passed by voters giving an independent commission responsibility for the state’s redistricting. The law was challenged by the Arizona State Legislature, which the amendment stripped of its redistricting responsibilities after a series of blatantly extreme political gerrymanders. The Legal Center, along with other groups advocating representative democracy, filed an amici brief in the Supreme Court in support of the constitutionality of Arizona’s independent redistricting commission.
“Today’s decision is a victory for representative democracy and a sharp rebuke to the Arizona legislators who sued to overturn the popular will of the state’s citizens in order to regain their ability to handpick their constituents and safeguard their seats through blatant political gerrymanders,” said J. Gerald Hebert, Campaign Legal Center Executive Director. “Article I, Section 2 of the U.S. Constitution guarantees that Members of Congress will be chosen ‘by the People of the several States,’ not that Members of Congress will handpick the constituents most likely to reelect them. We are pleased that the Supreme Court ruled in favor of voters over their elected officials, but disappointed to see four Justices willing to deny voters a fair chance to choose their own representatives.”
The challenge was brought under the Elections Clause of the U.S. Constitution, which states that “[t]he times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” In February 2014, a three-judge panel of the U.S. District Court for the District of Arizona ruled that the Elections Clause does not prohibit Arizona from using its lawmaking process to give congressional redistricting authority to the Independent Commission.
A court victory by the Arizona Legislature would inevitably have prompted lawsuits challenging a number of similar state redistricting commissions, most notably California’s.
The groups joining in the brief in support of the Arizona Independent Redistricting Commission included the Campaign Legal Center, the League of Women Voters of the United States, the American Civil Liberties Union Foundations, Common Cause and Democracy 21. The Campaign Legal Center gratefully acknowledges the work of Paul M. Smith, Jessica Ring Amunson and other attorneys of Jenner & Block LLP.
To read the opinion, click here.
To read the brief filed by the Legal Center and other groups, click here.
En Banc DC Circuit Unanimously Rejects Challenge to Federal Contractor Contribution Ban
On July 7 in Wagner v. FEC, the en banc U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected an effort to overturn the 70-year-old ban on political contributions from federal contractors to federal candidates, parties and other political committees. The Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in the case in support of the contractor contribution ban.
“This is a major victory for democracy and we are pleased to see no dissent on the court in upholding this critical bulwark against corruption and the appearance of corruption in the awarding of government contracts,” said Tara Malloy, Campaign Legal Center Senior Counsel. “Longstanding legal precedent and the long and dismal history of contracting scandals clearly support the law. Pay-to-play scandals are as old as the Republic, and this Court has again recognized the vital public interest in preventing such abuses.”
This restriction on campaign contributions from persons and entities contracting with the federal government was enacted in 1940 to address corruption in federal contracting in the wake of persistent scandals.
To read the opinion of the D.C. Circuit Court, click here.
To read the amici brief filed with the en banc D.C. Circuit Court by the Legal Center, along with Democracy 21 and Public Citizen, click here.
Third Circuit Court Upholds Delaware Dark Money Disclosure Law
On July 16 in Delaware Strong Families v. Attorney General of Delaware, the U.S. Court of Appeals for the Third Circuit upheld the Delaware Elections Disclosure Act (“DEDA”), which was proposed and signed by Governor Jack Markell in 2012. The Third Circuit reversed a lower court decision that preliminarily enjoined Delaware’s disclosure law as applied to a voter guide put out by a nonprofit group, Delaware Strong Families (DSF), in a constitutional challenge to DEDA’s electioneering communications law.
“This Third Circuit ruling is an important victory for Delaware voters, who deserve to know the identities of those spending money to influence their votes,” said Tara Malloy, Campaign Legal Center Senior Counsel. “The Delaware Elections Disclosure Act promotes transparency in elections, which the Supreme Court has long recognized as a vital governmental interest, and yesterday’s ruling ensures that Delaware voters will continue to have access to the information they need to make informed decisions on Election Day.”
The Court of Appeals also rejected the argument that disclosure can only reach ‘express advocacy’ or its functional equivalent, recognizing that “[t]he Supreme Court has consistently held that disclosure requirements are not limited to ‘express advocacy’ and that there is not a ‘rigid barrier between express advocacy and so-called issue advocacy.’”
Lawyers from the law firm WilmerHale and the Campaign Legal Center represent the Defendants-Appellants, Delaware Attorney General and Delaware Commissioner of Elections.
To read the Third Circuit’s opinion, click here.
Florida Supreme Court Strikes Down Legislature’s Gerrymandered Congressional Map
On Thursday July 9, the Florida Supreme Court ordered that boundaries of eight of the state’s congressional districts be redrawn in League of Women Voters of Florida v. Detzner. The 5-2 ruling found the map in violation of the Florida State Constitution which was amended by Florida voters in 2010 to prohibit partisan gerrymanders. The new map will have to be approved by a lower court.
The League of Women Voters of Florida, the National Council of La Raza, Common Cause Florida and Florida voters filed this lawsuit in state court claiming that redistricting plans adopted by the Florida legislature violated the Florida Constitution’s provisions that provide that district boundaries not be drawn so as to favor any incumbent or political party over another. Other plaintiffs also filed suit and the cases were consolidated.
A lower-court ruling declared the map to be violative of the Florida Constitution, but the remedial decision of the trial court didn’t go far enough and gave deference to the Legislature when none was due, the state’s highest court said.
J. Gerald Hebert, along with the Orlando law firm of King Blackwell Zehnder and Wermuth and attorneys at Jenner & Block, served as co-counsel to the League of Women Voters of Florida, the National Council of La Raza, Common Cause Florida and Florida voters who brought the lawsuit.
To read the opinion of the Florida Supreme Court, click here.
Wisconsin Supreme Court Ignores Conflicts of Interest & All Relevant Precedent to Strike Down State Restrictions on Coordinated Spending & End Scott Walker John Doe Investigation
On July 15, in three consolidated cases arising from the ongoing Wisconsin John Doe investigation, the Wisconsin Supreme Court ignored U.S. Supreme Court precedent—and Wisconsin state law precedent— to significantly narrow Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups. The controversial decision was handed down by a narrow court majority that includes two judges whose own elections were bankrolled by millions spent by the same dark money groups under investigation in the John Doe probe. Prosecutors had called for their recusal.
The Campaign Legal Center, joined by Democracy 21, Common Cause in Wisconsin and the League of Women Voters of Wisconsin, filed an amici brief in the case urging the court to uphold the coordination restrictions.
The court agreed with the petitioners’ argument that if coordinated expenditures do not expressly advocate the election or defeat of candidates, then they cannot be subject to regulation or limitation. The U.S. Supreme Court specifically rejected that argument in McConnell v. FEC, holding that “there is no reason why Congress may not treat coordinated disbursements for electioneering communications,” i.e., a form of non-express advocacy, “in the same way it treats all other coordinated expenditures.”
“This ruling is an outrageous act of judicial activism that outright ignores clear Supreme Court precedent recognizing that expenditures coordinated by outside groups with candidates are little more than ‘disguised contributions’ made to the candidates themselves, regardless of whether or not the audience is expressly instructed to vote for or against a candidate,” said Tara Malloy, Campaign Legal Center Senior Counsel. “At least two of the justices in the majority should have recused themselves from the case because the groups under investigation played major roles in electing those justices to the court. The U.S. Supreme Court has not looked kindly on such blatant conflicts of interest, holding as recently as 2009 that the due process concerns required that a judge recuse himself from a case involving an individual who had spent millions of dollars to aid his election.”
The consolidated case centered around a challenge to a so-called John Doe investigation of alleged illegal coordination between the campaign of Wisconsin Governor Scott Walker and outside groups. That investigation was blocked until various challenges were resolved.
To read the opinion, click here.
To read the amici brief filed by the Campaign Legal Center, click here.
Tenth Circuit Urged to Overturn Attorneys’ Fees Award in Another Instance of Albuquerque’s Pattern of Citizen Intimidation
On June 23 Han-Noggle v. City of Albuquerque, the Campaign Legal Center filed a motion to participate as amicus curiae and an accompanying amicus brief urging the U.S. Court of Appeals for the Tenth Circuit to partially reverse a district court decision awarding fees to the City of Albuquerque in a civil rights lawsuit. The brief clarifies the legal standards for awarding fees to prevailing civil rights defendants. The brief further emphasizes that the City of Albuquerque has pursued an abusive policy of liberally seeking fees against civil rights plaintiffs in order to discourage such suits, including, most notably, in Baca v. Berry, where the CLC represents individual citizens who the city has attempted to fine for seeking to vindicate their voting rights.
“The district court applied the wrong standard in awarding fees to the City of Albuquerque and the City now urges the Tenth Circuit to compound the district court’s error,” said Joshua Bone, the Legal Center attorney who argued before the Tenth Circuit in Baca. “This is not the first time that the City has sought to intimidate its own citizens in court by seeking to recover attorneys’ fees against civil rights plaintiffs. We hope that the Tenth Circuit will help bring this abuse of powers to an end by reversing the district court’s partial attorneys’ fees award and refusing the City’s invitation to further punish its own citizens.”
Currently the Legal Center represents four Albuquerque voters against the City of Albuquerque in Baca v. Berry, a voting rights case before the U.S. Court of Appeals for the Tenth Circuit. Earlier, in June, the Legal Center filed a motion for sanctions against the city and its attorneys for pursuing a frivolous cross-appeal in bad faith, which is pending. The City’s cross-appeal in Baca had sought to force the voters to pay the city’s attorneys’ fees after they challenged a controversial city redistricting plan.
To read the Legal Center’s amicus brief in the Han-Noggle case, click here.
To read the Legal Center’s motion for sanctions in Baca, click here.
Short Film about Victim of Texas Voter ID Law Shows Why We Need to Pass The Voting Rights Advancement Act
On June 24, as Sen. Patrick Leahy (D-VT) and Rep. John Lewis (D-GA) introduced the Voting Rights Advancement Act (VRAA) on the eve of the second anniversary of Shelby County v. Holder, the Campaign Legal Center released a short film focusing on a lifelong voter disenfranchised by Texas’ voter photo ID law (SB 14). The most restrictive and burdensome voter ID law in the nation, the Texas law was rejected by the Department of Justice prior to the Shelby County ruling and is a perfect example of why Congress needs to pass new legislation to protect the rights of all citizens to vote.
“Tony’s deeply troubling story puts a very human face on the impact of a heartless law that disenfranchised hundreds of thousands of Texans, and intentionally and disproportionately stripped the right to vote from minority voters,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center. “Rep. Lewis’ and Sen. Leahy’s Voting Rights Advancement Act of 2015 will restore the voting rights protections undermined by the Supreme Court two years ago in its wrong-headed Shelby County decision. The two-year anniversary of that terrible decision is two years too many without sufficient protections for voting rights.
The new three and a half minute film produced by Firelight Media traces the efforts of the Campaign Legal Center’s Voter ID Project to assist Tony, a longtime registered Texas voter, to overcome the many hurdles erected by the new law in order to obtain the photo ID required by SB 14 in order to vote.
To watch the 3 minute film, click here.
To watch a longer film that was previously released, click here.
Bipartisan Overhaul of Dysfunctional FEC Introduced by Representatives Kilmer and Renacci
On June 25, Rep. Derek Kilmer (D-WA) and Rep. Jim Renacci (R-OH) introduced a bipartisan bill to overhaul the Federal Election Commission (FEC) and break the gridlock that has left the federal campaign finance watchdog incapable of performing many of its most important duties. The Restoring Integrity to America’s Elections Act would reform an agency where enforcement actions and rulemakings have ground to a halt in recent years, despite a spike in apparent violations and a pressing need to promulgate new rules in responses to Supreme Court decisions striking down a number of longstanding campaign finance laws. Representatives Lou Barletta (R-PA) and John Carney (D-DE) are also original cosponsors of the bill.
“In the vacuum created by the FEC’s breakdown, candidates, committees and outside groups of both parties and at all levels have engaged with impunity in what appear to be violations of law, using soft money for federal campaigns, creating and coordinating with allegedly ‘independent’ groups, and ignoring disclosure requirements,” said Trevor Potter, Campaign Legal Center President and former FEC Chair. “Congress gave the FEC power to enforce the campaign finance laws, and did not expect it to become gridlocked and unable to act. This bill will enable the FEC to do its job.”
Rep. Kilmer recently invited Potter to join him for a telephone town hall with his constituents to share his insights on reforming the FEC and campaign finance laws in general.
The Restoring Integrity to America’s Elections Act would:
- Reduce the number of Commissioners from six to five to eliminate stalemates.
- End the practice of Commissioners serving indefinitely until a replacement is confirmed by the Senate.
- Create a blue ribbon advisory panel to recommend nominees to the President for vacancies on the Commission.
- Delegate some administrative and investigatory tasks to the Chair to ensure timely investigations of alleged violations and to ensure the smooth operation of the agency.
- Maintain the requirement for a majority of the Commission to vote to initiate or take civil action against someone who violates federal election law, issue advisory opinions, engage in rulemaking, and conduct investigations and hearings.
To see the text of the bill, click here.
Watchdogs Urge FCC to Enforce & Improve Broadcaster Public File Accessibility Rules
On July 6, the Campaign Legal Center, joined by Common Cause and the Sunlight Foundation, urged the Federal Communications Commission (FCC) to strengthen the way the agency collects and discloses information to the public and to enforce its existing rules. In a filing made in response to the agency’s request for comment on local public inspection files and political files, the groups, represented by the Institute for Public Representation of the Georgetown University Law Center, proposed changes to enhance the quality, utility and clarity of the information the FCC collects.
“These public files can be a great resource to the public. But if broadcasters do not comply with the requirement and the FCC does not enforce the rules -- despite receiving complaints detailing clear violations -- then the public is kept in the dark,” said Meredith McGehee, Campaign Legal Center Policy Director. “These are not arduous requirements. It is past time to get these public files into the standardized, searchable, sortable format that is the agency’s professed goal and for the FCC to ensure broadcasters comply with them.”
The request for comments was part of the Commission’s on-going compliance with information collection under the Paperwork Reduction Act.
Over the past several years, the groups pushed successfully to get the FCC to enact rules requiring broadcast stations to put their political files online in an FCC database, which took effect for all television stations July 1, 2014. In a separate proceeding, the groups are also currently urging the Commission to extend the requirements to cable, satellite and radio.
To read the comments filed on July 6 by the Legal Center and other groups, click here.
CLC Executive Director a Featured Panelist in ACS Supreme Court Term Review
On July 1, the American Constitution Society hosted a review of the major cases and rulings from the 2014 Supreme Court Term at the National Press Club. Campaign Legal Center Executive Director J. Gerald Hebert sat on the panel of experts. SCOTUSblog Founder and constitutional law scholar, Thomas Goldstein, moderated.
The panelists discussed the Court’s noteworthy decisions from the 2014 Term, including rulings on the Affordable Care Act, same-sex marriage, voting rights, campaign finance, and fair housing. Hebert’s remarks focused on the political law cases in the areas of redistricting and judicial elections, along with emerging trends in the area of election law.
To watch the discussion on C-SPAN, click here (skip to 58:43 to listen to Hebert remarks).
Legal Center President Addresses Crested Butte Policy Forum
On July 8, Trevor Potter, President of the Campaign Legal Center, spoke in Colorado at The Public Policy Forum of Crested Butte as part of their Summer 2015 speaker series. In his speech, entitled “The Money-in-Politics Disaster: Where Do We Go from Here?” Potter spoke about the changing world of campaign finance and the implications of Citizens United for the upcoming election cycle.
After the talk, Potter appeared on a local talk radio show Outside/In, hosted by Roger Kahn. Potter and Kahn further discussed “The Money-in-Politics Disaster”.
To listen to the speech, click here.
To listen to Potter’s appearance on KBUT’s Outside/In, click here.