CLC Update June 17, 2010
- Ninth Circuit Upholds Federal Ban on Straw Donor Contributions Overturning District Court in U.S. v. O'Donnell
- House Members Urged to Pass DISCLOSE Act by Reform Groups
- Reform Groups Urge Speaker Pelosi to Back Office of Congressional Ethics against Challenges
- FEC Grants Citizens United Request for Media Exemption from Disclosure
- Reform Groups Continue to Push FCC on Public Interest Obligations
- Legal Center President Advises Proposed ALI Election Law Project
- Executive Director Featured in Documentary "Gerrymandering"
- CLC Counsel Speaks at National Institute on Money in State Politics Conference in Montana
- Legal Center President Addresses Citizens United Decision before Annual General Counsel Conference
- CLC Counsel Speaks at Heartland Conference in Minnesota
Ninth Circuit Upholds Federal Ban on Straw Donor Contributions Overturning District Court in U.S. v. O’Donnell
On June 14, 2010, the Ninth Circuit Court of Appeals overturned a district court decision that had in effect condoned straw donor political contributions in U.S. v. O'Donnell. The decision "corrected one of the most incomprehensible district court decisions in recent memory," Legal Center Associate Legal Counsel Paul S. Ryan said in a statement. "The district court decision overturned today was at odds with decades of settled law and made a mockery of campaign contribution limits."
Federal law says that "[n]o person shall make a contribution in the name of another person." For decades, the Federal Election Commission has correctly understood and enforced this provision as prohibiting "straw donor" schemes of the type alleged in O'Donnell's indictment. Nevertheless, O'Donnell argued successfully to the district court that this statutory provision applies only when a campaign contributor uses a false name—not when a contributor uses a straw donor.
In 2003, despite a federal law $2,000 contribution limit, defendant O'Donnell is alleged to have contributed $26,000 of his money to the Edwards for President campaign through 13 individuals—primarily employees of his law firm as well as some of his relatives—with the understanding that he would either advance them funds or reimburse them after the contribution was made.
The Ninth Circuit Court of Appeals overturned the district court decision and held that federal law "prohibits straw donor contributions, in which a defendant solicits others to donate to a candidate for federal office in their own names and furnishes the money for the gift either through an advance or a prearranged reimbursement."
The Campaign Legal Center, together with Democracy 21, filed a brief amici curiae in the Ninth Circuit supporting the United States and urging reversal.
House Members Urged To Pass DISCLOSE Act by Reform Groups
On June 15, 2010, the Campaign Legal Center and other reform groups urged Members of the House of Representatives to pass H.R. 5175, the DISCLOSE Act, as Leadership weighed bringing the legislation to the floor for a vote. The legislation was introduced by Representatives Chris Van Hollen (D-MD) and Mike Castle (R-DE) in response to the controversial Supreme Court decision in Citizens United v. FEC, which opened the door for corporations and unions to spend their treasury funds in federal elections. The DISCLOSE Act would require timely and effective disclosure of these campaign-related expenditures, among other provisions.
In the telegram to House Members, the groups recommended a "yes" vote on the bill and the Manager's amendment. Joining the Campaign Legal Center in signing the telegram were Common Cause, Democracy 21, the League of Women Voters, and Public Citizen.
Reform Groups Urge Speaker Pelosi to Back Office of Congressional Ethics against Challenges
On June 9, 2010, the Legal Center, along with other reform groups, urged Speaker of the House Nancy Pelosi to stand behind the Office of Congressional Ethics (OCE) against the latest challenge from Members seeking to undermine the OCE. A resolution to water down the powers of the OCE has been introduced by Rep. Marcia Fudge (D-OH) and 19 other members of the Congressional Black Caucus. In the letter to Speaker Pelosi, the Legal Center and other reform groups expressed their continued support of the OCE which has helped to revitalize a discredited and long dormant ethics process. The OCE is made up primarily of former Members of Congress and conducts initial investigations into complaints against current Members and makes recommendations for dismissal or further inquiry to the House ethics committee. The other organizations signing onto the letter in support of the OCE included Common Cause, Democracy 21, the League of Women Voters, Public Citizen, and U.S.PIRG.
FEC Grants Citizens United Request for Media Exemption from Disclosure
On June 10, 2010, the Federal Election Commission (FEC) issued an advisory opinion (AO 2010-08) to Citizens United, granting the self-described political advocacy organization exemption from federal law disclosure requirements for its "documentary" filmmaking and related advertising under the so-called "media exemption."
The federal law media exemption applies to a "press entity" not owned or controlled by a political committee or candidate that is acting in its "legitimate press function" by distributing a news story, commentary or editorial through the facilities of a broadcasting station.
On June 9, the Campaign Legal Center, together with Democracy 21, filed comments with the FEC regarding the Commission's two alternative draft responses to Citizens United's advisory opinion request.
As the comments filed by the Legal Center make clear, Citizens United is not a "press entity" but rather is, as it describes itself, an advocacy organization. Accordingly, its activities did not qualify for the media exemption, the Legal Center said.
The comments emphasized that if the Commission determines that classic advocacy organizations can acquire the protections of the media exemption merely by producing a handful of films in furtherance of its advocacy mission, the unbounded nature of that determination will open the door for any and all advocacy groups to obtain an exemption from the campaign finance laws. That door is now open.
Reform Groups Continue To Push FCC On Public Interest Obligations
On May 27, 2010, Policy Director Meredith McGehee and representatives from other groups in the Public Interest Public Airwaves Coalition (PIPAC) met with Sherrese Smith, Legal Advisor for Media, Consumer and Enforcement Issues for Federal Communications Commission (FCC) Chairman Julius Genachowski. PIPAC expressed concern that public interest obligations haven't been a priority for the FCC and urged the Commission to act on pending petitions for reconsideration to an order approved by commissioners in 2007 on enhanced broadcaster disclosure to realize the significant data gathering benefits from such reporting requirements.
Legal Center President Advises Proposed ALI Election Law Project
On June 10, 2010, Legal Center President Trevor Potter was among a group of attorneys meeting in Philadelphia to advise the American Law Institute's (ALI) on the planning of its Election Law Project. The initial meeting brought together leading election lawyers to discuss the scope and parameters of a possible election law initiative which, in ALI tradition, would seek to clarify, modernize, and otherwise improve the law through the drafting and publication of model statutes and/or principles of law.
Executive Director Featured In Documentary "Gerrymandering"
On June 10, 2010, Legal Center staff members were the guests of filmmaker Jeff Reichert at the Washington premiere of his documentary "Gerrymandering", which features Executive Director J. Gerald Hebert prominently. The documentary which premiered at the E Street Theater focuses on the abuses of the redistricting process and efforts to curb gerrymandering. The event was attended by a number of current and retired politicians including, Governor Arnold Schwarzenegger (R-CA), former Rep. and presidential candidate John Anderson (R-IL), Rep. John Tanner (D-TN), and former Rep. Martin Frost (D-TX). The film is scheduled to be released in October.
CLC Counsel Speaks At National Institute on Money In State Politics Conference In Montana
The Legal Center's Paul S. Ryan attended the National Institute on Money in State Politics' annual conference on Flathead Lake in Montana June 10-13 and spoke on the Supreme Court's January 2010 decision in Citizens United and other disclosure-related litigation around the nation. The Institute is the nation's leading aggregator of data on money in state politics, available to the public through the Institute's Web site: FollowTheMoney.org. The Institute's annual conference brings together national experts and advocates of government transparency to discuss the current state of government transparency and to help guide the Institute's work to improve it.
Legal Center President Addresses Citizens United Decision before Annual General Counsel Conference
On June 8, 2010, Legal Center President Trevor Potter addressed the 22ndAnnual General Counsel Conference in New York on a panel entitled "Foundational Shifts in Political Law: Citizens United, Pay to Play and Lobbying Reform". The panel focused on the recent dramatic trends in the laws governing campaign finance, government contracting, and the regulation and disclosure of lobbying.
CLC Counsel Speaks At Heartland Conference In Minnesota
The Legal Center's Paul S. Ryan attended the Heartland Conference in Minneapolis, MN June 7-8 and provided conference attendees—a collection of state ethics/campaign finance agency leadership and staff—with an update on campaign finance litigation around the nation.