CLC Update March 13, 2015

CLC Staff
Mar 13, 2015
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  1. Colorado Appeals Court Urged to Overturn Contributions Ruling
  2. Tenth Circuit Urged to Uphold Colorado Disclosure Provisions
  3. Texas Voters Urge Fifth Circuit to Uphold Ruling Striking Down Texas Voter Photo ID Law
  4. Law Professors Urge Supreme Court to Accept Case and Overturn North Carolina Redistricting Decision
  5. Tenth Circuit Urged to Deny Albuquerque’s Attempt to Fine Litigants and Lawyers for Seeking to Vindicate Voting Rights
  6. Supreme Court Hears Oral Arguments in Challenge to Arizona Congressional Redistricting Commission
  7. Broadcasters Drop Appeal of FCC Requirement to Upload Public Files to FCC Database
  8. Austin Hosts Latest Voting Rights Institute to Train New Generation of Voting Rights Lawyers and Experts
  9. CLC Senior Counsel Ryan’s White Paper Examining Prospective 2016 Presidential Candidates
  10. CLC Senior Counsel Ryan Testifies Before FEC
  11. Letter to the President Urging Executive Order on Disclosure of Contractor Political Expenditures
  12. Watchdogs Applaud Justice Department’s Stated Commitment to Enforce Campaign Finance Coordination Laws; Urge Active Enforcement in 2016 Election
  13. Watchdogs Urge Members to Co-Sponsor Bill to Curb Candidate-Super PAC Coordination
  14. Letter to the House Administration Committee Urging Members to Oppose Legislation to Repeal the Presidential Financing System
  15. Legal Center Policy Director Speaks at the 2015 Bryce Harlow Workshop on Ethics and Lobbying at American University
  16. Executive Director Addresses American University Washington Program
  17. Legal Center Associate Counsel Megan P. McAllen Participates in Judicial Elections Panel at George Washington University Law School
  18. Legal Center Senior Counsel Paul S. Ryan Speaks at Penn Law School

 

Colorado Appeals Court Urged to Overturn Contributions Ruling

On March 6, the Campaign Legal Center filed an amicus brief in Colorado Republican Party (“CRP”) v. Williams, urging the Colorado Court of Appeals to overturn a Colorado District Court ruling that would allow CRP to accept unlimited contributions for a Super PAC it created and controls despite state limits on contributions to party committees. 

“The Supreme Court has been very clear that party contribution limits are a valid means of preventing the corruption that can arise when large contributions are made to a political party, regardless of how the party uses that money,” said Megan P. McAllen, Campaign Legal Center Associate Counsel. “The Colorado Republican Party is trying to resurrect the soft-money abuses that plagued the federal campaign finance system for decades and that the Supreme Court found ultimately undermined the contribution limits and prohibitions.”

In 2003 in McConnell v. FEC, the U.S. Supreme Court upheld the federal ban on unlimited “soft money” contributions to political parties in a challenge to the Bipartisan Campaign Reform Act of 2002 (BCRA).  BCRA (commonly referred to as McCain-Feingold) closed a loophole created by the Federal Election Commission that allowed the national party committees to accept unlimited contributions to spend on certain activities.  In McConnell, the Court found that “the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have made all large soft-money contributions to national parties suspect. 

In May 2014, the Colorado Republican Party filed suit against the state seeking an order declaring that its Super PAC, whose officers are appointed as often as annually by the state party chairman, was not subject to the regular limits on what could be contributed to a political party. The State’s Republican Secretary of State and Attorney General chose not to defend the application of the state limits. However, Colorado Ethics Watch joined the suit as an intervenor-defendant in order to argue that the state contribution limits prohibited CRP from accepting unlimited contributions to fund its Super PAC.  In September, the Colorado District Court ruled in favor of CRP, and Colorado Ethics Watch appealed that decision. The Campaign Legal Center filed in support of that appeal.

To read the amici briefclick here.

 

Tenth Circuit Urged to Uphold Colorado Disclosure Provisions

On March 4, 2015, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Independence Institute v. Gessler urging the Tenth Circuit Court of Appeals to affirm a District Court ruling upholding the Colorado Constitution’s “electioneering communications” disclosure provisions.  The state law is materially identical to the federal “electioneering communications” disclosure statute, which was upheld by the U.S. Supreme Court in 2010 in its Citizens United decision.  Plaintiff’s challenge to the federal statute (Independence Institute v. Federal Election Commission) was dismissed by the U.S. District Court for the District of Columbia on October 6, 2014, sixteen days before the challenge to the Colorado law was dismissed by the U.S. District Court for the District of Colorado.  The Campaign Legal Center filed amici briefs in both cases.

“From the challenge in Buckley v. Valeo to the Watergate reforms right through to the Roberts Court’s ruling in Citizens United, the U.S. Supreme Court has been unbending in its support for disclosure and in its recognition that the public has a vital interest in knowing the identities of those who are trying to influence their votes,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Independence Institute is asking the court to ignore Supreme Court precedent so that it and others can blanket the airwaves with ‘dark money’ ads in the final weeks before elections without ever revealing the interests bankrolling those ads.”

Independence Institute wished to run a broadcast ad referring to Governor John Hickenlooper (D-CO) shortly before Election Day without disclosing its donors.  The challenged law requires donor disclosure when groups spend more than $1,000 on “electioneering communications”—defined as certain television, radio and print ads that mention the name of a state candidate within 60 days of a general election or 30 days of a primary election. 

The U.S. Congress enacted the federal “electioneering communications” disclosure law, which is also being challenged by Independence Institute in a different case, to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  Since then, the Supreme Court has twice upheld this law: first in McConnell v. FEC (2003) in a facial challenge, and again in Citizens United v. FEC (2010), in an as-applied challenge.

To read the amici brief filed by the Campaign Legal Center, Democracy 21 and Public Citizen, click here

To read the U.S. District Court for the District of Colorado’s order and final judgment, click here and here.

To read the U.S. District Court for the District of Columbia order dismissing the challenge to the federal statute, click here

 

Texas Voters Urge Fifth Circuit to Uphold Ruling Striking Down Texas Voter Photo ID Law

On March 3, in Veasey v. Abbott, attorneys at the Campaign Legal Center, who serve as co-counsel for plaintiffs Congressman Marc Veasey, LULAC, and a group of Texas voters, filed a brief urging the Fifth Circuit Court of Appeals to uphold a District Court ruling striking down Texas’ voter photo ID law (SB 14), the most restrictive and burdensome voter ID law in the nation.

Following a two-week trial last fall, U.S. District Court Judge Nelva Gonzales Ramos enjoined SB 14, finding that it was as an unconstitutional burden on the right to vote as well as an unconstitutional poll tax, had “an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.”  The state defendants immediately appealed Judge Ramos’ decision. In mid-October, the Fifth Circuit Court of Appeals stayed that decision solely to avoid confusion in the November 2014 elections, and the U.S. Supreme Court subsequently refused to vacate the Fifth Circuit’s stay.  

“Evidence introduced at trial proved that hundreds of thousands of Texans were stripped of their right to vote by this discriminatory law,” said J. Gerald Hebert, Executive Director of The Campaign Legal Center.  “The District Court’s decision carefully weighed all the evidence in finding the Texas photo ID law unconstitutional and in violation of the Voting Rights Act, and we hope the Circuit Court will uphold that ruling and restore the franchise to those stripped of this fundamental right.”

The first challenge (Veasey v. Perry) to the Texas photo ID law was filed by the Campaign Legal Center and others in the summer of 2013 claiming that SB 14 violates the 1st, 14th, 15th and 24th Amendments to the Constitution, as well as Section 2 of the Voting Rights Act.  Several additional challenges were then brought against the Texas law (including one by the United States).  All of the cases were consolidated in the Southern District of Texas in Corpus Christi.

The Campaign Legal Center is part of the legal team representing the Veasey-LULAC plaintiffs, that includes Chad Dunn and K. Scott Brazil (Brazil & Dunn), Neil G. Baron, David Richards (Richards, Rodriguez & Skeith), Armand Derfner (Derfner & Altman), and Luis Roberto Vera, Jr. (LULAC).

To read the Legal Center’s brief, click here.

To read the District Court decision striking down the Voter ID law, click here.

 

Law Professors Urge Supreme Court to Accept Case and Overturn North Carolina Redistricting Decision

On February 17, in Dickson v. Rucho, Campaign Legal Center Executive Director J. Gerald Hebert joined with a dozen other nationally recognized election law professors in a brief urging the U.S. Supreme Court to accept a case and overturn a state supreme court ruling upholding North Carolina’s redistricting.  In supporting the petition for writ of certiorari, the brief from the thirteen voting rights experts emphasizes that North Carolina’s racially gerrymandered districts violate the Voting Rights Act and the Equal Protection Clause.

The law professors argue the lower court’s decision fundamentally misunderstands and misapplies U.S. Supreme Court precedent on redistricting.  Further, the brief emphasizes that if the North Carolina State Supreme Court ruling is not overturned, it will afford states a constitutional safe harbor from which to undermine the Voting Rights Act.

“The audacity of the legislature’s attempt to use the Voting Rights Act as a shield for its racial gerrymander is outdone only by the North Carolina Supreme Court acceptance of the argument,” said Hebert.  “If the decision by the North Carolina Supreme Court is not overturned, it will provide a blueprint for widespread circumvention of the Voting Rights Act by using the landmark civil rights legislation to actually dilute the voting strength of minority communities rather than protect them.” 

In addition to Hebert (who currently teaches voting rights courses at Georgetown University Law Center and New York Law School), the other election law professors signing the brief are: Campaign Legal Center board member Guy-Uriel Charles (Duke Law School), Jocelyn Benson (Wayne State University Law School), Michael Kent Curtis (Wake Forest University School of Law), Gilda Daniels (University of Baltimore School of Law), Joshua A. Douglas (University of Kentucky College of Law), Atiba R. Ellis (West Virginia University College of Law),  Justin Levitt (Loyola Law School), Eugene D. Mazo (Wake Forest University School of Law), Spencer Overton (George Washington University Law School), Terry Smith (DePaul University College of Law), Douglas Spencer (University of Connecticut Law School), and Franita Tolson (Florida State University College of Law).

To read the brief, click here

 

Tenth Circuit Urged to Deny Albuquerque’s Attempt to Fine Litigants and Lawyers for Seeking to Vindicate Voting Rights

On February 17, in Baca v. Berry, Campaign Legal Center attorneys, along with attorneys at Jenner & Block, filed a brief in the United States Court of Appeals for the Tenth Circuit responding to the City of Albuquerque’s efforts to obtain financial sanctions against four of its own citizens and their former counsel for filing a voting rights lawsuit.  Legal Center attorneys represent the individual voters, while Jenner & Block attorneys represent the voters’ former counsel. 

The case started when four Albuquerque voters brought claims challenging the city council’s post-2010 redistricting plan.  After the lawsuit was filed, electoral changes were adopted in the City that prompted the plaintiffs to move to dismiss their case without prejudice.  The City moved to dismiss the case with prejudice.   The district judge held both motions in abeyance for several months and then granted the City’s motion to dismiss with prejudice.  The City then successfully obtained an order from the district judge sanctioning the voters’ counsel in the amount of $48,217.95 for pursuing a frivolous case.  The trial court, however, refused to grant the City’s motion to financially sanction the four individual citizens.  The individual plaintiffs’ counsel appealed the sanctions order and the City has appealed the order declining to sanction the individual voters who filed the suit.   The brief filed yesterday responds to the city’s frivolous attempt to extort its own citizens for invoking their right to bring a lawsuit to protect their constitutional and civil rights, and also replies to the city’s defense of the district court’s sanctions order against the plaintiffs’ former counsel. 

“Unless the Tenth Circuit condemns Albuquerque’s transparent attempt to intimidate its own citizens, many future civil rights violations will likely go unchallenged,” said J. Gerald Hebert, Campaign Legal Center Executive Director. “The city’s conduct in this case bears all the hallmarks of a strategic lawsuit to crush civic involvement and full public participation—an attempt by those in power to scare people away from vindicating their civil rights.  The law firm of Jenner & Block was recruited to work on this case by the Voting Rights Institute, a joint program launched earlier this year by the Campaign Legal Center and the American Constitution Society.

To read the brief, click here.

 

Supreme Court Hears Oral Arguments in Challenge to Arizona Redistricting Commission

March 2, the Supreme Court heard oral arguments in Arizona State Legislature v. Arizona Independent Redistricting Commission, a challenge to an Arizona state constitutional amendment passed by voters giving an independent commission responsibility over congressional redistricting. The law is being challenged by the Arizona State Legislature, which had engaged in a series of extreme political gerrymanders that led voters to approve the creation of an independent redistricting commission.

On January 23, the Campaign Legal Center and groups advocating representative democracy filed an amici brief in the case in support of the amendment. The challenge is being brought under the elections-clause of the U.S. Constitution which states in part 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 federal court in Arizona ruled that when voters acted to amend the state's constitution and created the commission, they were acting in the capacity of the Legislature.

While the case could be decided narrowly, a broader ruling could impact a number of similar state redistricting commissions across the country. Redistricting commissions in most states were created by the legislatures.

The groups joining in the brief in support of the Arizona Independent Redistricting Commission include 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 attorneys at Jenner & Block, LLP, who serve as lead counsel for this amici group.

To read the brief, click here.

 

Broadcasters Drop Appeal of FCC Requirement to Upload Public Files to FCC Database

February 5, the National Association of Broadcasters (NAB) voluntarily withdrew its appeal of the Federal Communications Commission’s (FCC’s) requirement to upload its public inspection files online to an FCC database.  The NAB had appealed the 2008 Order imposing the online file requirement, which required television stations to put these files in digital format and make them more readily available online.  The Campaign Legal Center, along with Common Cause and the Benton Foundation, represented by the Institute for Public Representation of Georgetown Law, intervened in support of the FCC.  The case had been held in abeyance as the FCC dealt with petitions for reconsideration and as the broadcasters gauged the impact of the new requirement.

The FCC phased in the requirement.  First, top-four affiliate stations in the top 50 markets had to upload their files beginning in 2012.  Then, the FCC gradually expanded the requirement to all broadcasters in all TV markets last year.  Implementation of the online file has been smooth.

“Requiring broadcasters to put their public file online was a no-brainer,” said Meredith McGehee, Policy Director of the Campaign Legal Center.  “Both its name and its purpose reflect the intention that the file be publicly accessible, but the public virtually never saw them unless they were willing to travel to the station and request the opportunity to review them.

In December 2014 the FCC issued a Notice of Proposed Rulemaking that would expand the online requirements to cable, satellite and radio.  The rulemaking process was initiated in response to a petition filed last year by the Campaign Legal Center, Common Cause and the Sunlight Foundation, represented by the Institute for Public Representation of Georgetown Law.  The groups encouraged the agency to act expeditiously on the request.

To read the Notice of Proposed Rulemaking, click here.

To read the Petition for Rulemaking, click here

 

Austin Hosts Latest Voting Rights Institute to Train New Generation of Voting Rights Lawyers and Experts

On March 7, the Voting Rights Institute, a joint project of the Campaign Legal Center and American Constitution Society (ACS), conducted a voting rights training session in Austin, Texas, to help fill the critical need for a new generation of voting rights lawyers, experts, and community activists. At the session, held at the University of Texas Law School, practitioners and law students learned the ‘ins and outs’ of protecting the right to vote through the enforcement of voting rights law. A particular focus of the training was cases brought to enforce Section 2 of the Voting Rights Act, and the Fourteenth and Fifteenth Amendments to the Constitution.  The training program featured a panel of instructors with decades of experience in the field of voting rights.

“To understand the urgent need for a new generation of voting rights litigators and experts, one need look no further than the voter suppression laws enacted in the run-up to the 2014 elections and currently being challenged in the courts,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center.  “The Supreme Court’s disastrous Shelby County decision in 2013 turned the clock back on voting rights protections, unleashing new laws at the state and municipal level designed to restrict and burden voting rights.”

Experts in the field provided background on the Voting Rights Act and relevant federal court cases to participants and also focused on their experiences in voting rights cases.  The Voting Rights Act was covered in detail and participants learned how it impacts voting rights laws on a state-by-state basis. Campaign Legal Center Executive Director, J. Gerald Hebert, served as lead instructor and was joined by several veteran voting rights litigators and advocates.

In addition to Mr. Hebert, the Institute’s faculty included: Chad Dunn (Partner, Brazil & Dunn); veteran voting rights attorney David Richards; the Texas Mexican American Caucus’ general counsel Martin Golando; Texas NAACP President Gary Bledsoe; and former Texas state senator and gubernatorial candidate, attorney Wendy Davis. 

Financial support for the Voting Rights Institute has been received from the MacArthur Foundation, Rockefeller Brothers Fund (rbf.org), Mertz Gilmore Foundation and the Wallace Global Fund.  

For more details on the timing and location of the Austin training, click here.        

 

CLC Senior Counsel Ryan’s White Paper Examining Prospective 2016 Presidential Candidates

On February 20, the Campaign Legal Center released a white paper examining prospective 2016 presidential candidates raising millions of dollars, while denying that they are even “testing the waters” for a potential run for their Party’s nomination. Why would they deny the obvious? Federal law requires an individual who is “testing the waters” of candidacy to pay for those activities with funds raised in compliance with the candidate contribution restrictions—no individual contributions above $2,700, and no corporate or labor union funds. Nearly every likely presidential contender is ignoring the candidate limits and the Federal Election Commission is doing nothing to stop it.

Written by Campaign Legal Center Senior Counsel Paul S. Ryan, the white paper details the recent political activities of nearly 20 prospective 2016 presidential candidates, the campaign finance laws that many of these prospective candidates are likely violating, and the history of similar evasion and violation going all the way back to Ronald Reagan, who began stretching the boundaries of the Federal Election Campaign Act in 1977, just three years after President Richard Nixon resigned his office in disgrace leading to passage of the Act.

“Testing the waters’ means activity undertaken to determine whether the individual should become a candidate, including, for example, traveling to see if there is sufficient support for one’s candidacy,” said Ryan. “Nearly every prospective 2016 presidential candidate is raising and spending funds outside the candidate contribution limits, through super PACs, leadership PACs and other groups. They’re traveling to Iowa and New Hampshire; they’re hiring campaign staff; one has even opened an office in Iowa. They claim they’re not ‘testing the waters,’ but they look soaking wet to me.”

To read the white paper, click here

 

CLC Senior Counsel Ryan Testifies Before FEC

On February 11, 2015, CLC Senior Counsel Paul S. Ryan testified before the Federal Election Commission regarding a number of issues for possible rulemaking by the agency. Ryan was part of a day-long hearing session held by the FEC to get public comment on issues ranging from earmarking, affiliation, joint fundraising and disclosure.

To view Ryan’s testimony, click here.

For the written testimony submitted by CLC and Democracy 21 on January 15, click here.

 

Letter to the President Urging Executive Order on Disclosure of Contractor Political Expenditures

On March 2, 2015, the Campaign Legal Center joined with more than 50 other organizations in a letter sent to President Obama urging the use of an executive order to require businesses with government contracts to fully disclose their politically spending. The letter emphasized the growing problem of influence buying in Washington in the wake of several Supreme Court decisions, including Citizens United v. FEC.  The groups stressed that the resulting flood of unrestricted and often undisclosed money into U.S. elections is distorting the functioning of our democracy and undermining public faith in our elected representatives in Washington.

The letter urged President Obama to immediately issue an executive order requiring full disclosure of political spending by business entities receiving federal government contracts, and furthermore require federal contractors to affirmatively certify that they are in compliance with the federal ban on direct or indirect political contributions.

To read the letter, click here.

 

Watchdogs Applaud Justice Department’s Stated Commitment to Enforce Campaign Finance Coordination Laws; Urge Active Enforcement in 2016 Election

In a letter sent to the Justice Department on March 4, the Campaign Legal Center joined Democracy 21 in applauding the agency’s recent action to enforce the coordination standard in the campaign finance laws and emphasized how important it is for the Department to play an active role in enforcing the campaign finance laws in the 2016 election cycle.

The groups commended the Department for its recent prosecution for illegal coordination and its recent statements that it would be stepping up enforcement of coordination laws to protect the integrity of elections.  The letter outlined the increased risk of corruption in the wake of the Supreme Court’s controversial Citizens United decision, which unleashed unprecedented amounts of money into the system and led to a proliferation of single-candidate Super PACs.  The groups emphasized the important role of the Department in enforcing campaign finance laws, especially at a time when the Federal Election Commission is not enforcing the laws passed by Congress. 

To read the full letter, click here

 

Watchdogs Urge Members to Co-Sponsor Bill to Curb Candidate-Super PAC Coordination

On March 12, the Campaign Legal Center joined with other reform groups in urging House Members to co-sponsor H.R. 425, the Stop Super PAC-Candidate Coordination Act, introduced in this Congress by Representatives David Price (D-NC) and Chris Van Hollen (D-MD).

The bill would prevent candidates from soliciting contributions for Super PACs and define common-sense coordination standards to prevent the widespread abuse currently occurring not only at the presidential level but at the congressional level as well.  

"Super PACs have eviscerated the contributions limits upheld by the Supreme Court, even under Chief Justice Roberts, to protect against corruption or the appearance of corruption,” said Meredith McGehee, Campaign Legal Center Policy Director.  “That ‘protection’ is now a farce and a fiction. Corruption and the appearance of corruption are in full swing. Candidates are personally soliciting contributions for Super PACs and those PACs are receiving million dollar checks.”

To read the full letter, click here.

 

Letter to the House Administration Committee Urging Members to Oppose Legislation to Repeal the Presidential Financing System

On March 3, the Campaign Legal Center joined eight other reform groups in sending a letter to the House Administration Committee urging opposition to two pieces of legislation: H.R. 412 to repeal the presidential public financing system; and H.R. 195 to terminate the Election Assistance Commission.

The letter urged the Committee to repair rather than do away with the presidential public financing system, which was created in the wake of the Watergate scandal and was utilized by every President for 25 years, and to strengthen the EAC rather than to transfer its responsibilities to the dysfunctional Federal Election Commission.

To read the letter, click here.

 

Legal Center Policy Director Speaks at the 2015 Bryce Harlow Workshop on Ethics and Lobbying at American University

On Saturday, February 14, CLC Policy Director Meredith McGehee spoke at the 2015 Bryce Harlow Workshop on Ethics and Lobbying at American University on Major Ethical Issues in Lobbying and Election Campaigns.”  McGehee focused on the role of lobbyists in the campaign finance system, as well as the imbalance in the current system which provides monied interests with an advantage in influencing public policy outcomes.

 

Executive Director Addresses American University Washington Program

On February 11, Legal Center Executive Director J. Gerald Hebert addressed American University’s Washington Semester Program, discussing the current state of money in politics and outlining potential reforms that the Campaign Legal Center is currently pursuing.  The program hosts students from around the country and schedules discussions for students with leading figures on the important political issues of the day.

 

Legal Center Associate Counsel Megan P. McAllen Participates in Judicial Elections Panel at George Washington University Law School

On February 25, CLC Associate Counsel Megan P. McAllen took part in an expert panel discussion hosted by the Political Law Society at George Washington University Law School. The discussion focused on the recent Supreme Court case of Williams-Yulee v. The Florida Bar, involving a Florida law barring judicial candidates from personally soliciting campaign contributions. The panel was moderated by Ronald M. Jacobs from Venable LLP, and also featured Scott Greytak from Justice at Stake, Ilya Shapiro from the Cato Institute, and Eric Wang from Wiley Rein LLP.

 

Legal Center Senior Counsel Paul S. Ryan Speaks at Penn Law School

On February 25, Campaign Legal Center Senior Counsel Paul S. Ryan participated in a panel discussion at Penn Law School entitled Citizens United Five Years Later: Legal Problems and Solutions. The event was part of Penn Law School’s 7th Annual Public Interest Week. Joining Ryan on the panel moderated by Penn law student Blair Bowie were Keesha Gaskins of the Rockefeller Brothers Fund, Adam Lioz of Demos and Ian Vandewalker of the Brennan Center for Justice.

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