CLC Update May 5, 2010

CLC Staff
May 5, 2010
  1. DISCLOSE Act Introduced in Response to Citizens United Decision
  2. Legal Center Files Brief in RNC Coordination Challenge
  3. FEC Adopts New Nonfederal Fundraising Rule
  4. CLC Files Comments With FEC in “Yes on FAIR” Matter
  5. Executive Director Speaks at Government Attorneys Conference


DISCLOSE Act Introduced In Response to Citizens United Decision

 On April 29, 2010 the DISCLOSE Act (Democracy is Strengthened by Casting Light on Spending in Elections) was introduced by Senator Charles Schumer (D-NY) and Rep. Chris Van Hollen (D-MD) in response to the activist Supreme Court ruling in Citizens United v. FEC which has the potential to unleash vast corporate and union treasury funds into federal elections. The DISCLOSE Act will strengthen disclosure provisions, helping voters identify individuals and entities spending significant amounts of money in elections in order to buy access and influence in Washington.

Policy Director Meredith McGehee issued a statement supporting the bill, citing polls revealing widespread public outrage with the Court's decision, and calling for bipartisan support of the legislation.

"The DISCLOSE Act will drag the huge political expenditures made by corporations and unions into the light of day and help ensure that citizens know who is spending what to influence the outcomes of decisions in Washington, "said McGehee. "With so much at stake and so many policy decisions to be made, every citizen deserves to have the sunlight that this measure will bring into the political process in Washington."


Legal Center Files Brief in RNC Coordination Challenge

On Monday, April 19, 2010, the Legal Center, along with Democracy 21, filed an amici brief with the en banc Fifth Circuit Court of Appeals in Cao v. FEC. The case was filed by the RNC and others in November 2008 to challenge the party coordinated spending limits and the $5,000 political committee contribution limit as applied to coordinated spending.

The action arose from the decision of the district court to "certify" a number of constitutional questions proposed by Representative Ahn "Joseph" Cao (R-LA) and the RNC plaintiffs to the Fifth Circuit for en banc consideration. The district court also declined to certify several of plaintiffs' proposed questions, ruling they were "frivolous," and plaintiffs are also appealing this decision.

In the amici brief, the Legal Center urges the Fifth Circuit to reject the RNC's challenge. Amici argue that the Supreme Court has both endorsed the general practice of regulating coordinated expenditures as contributions, and specifically upheld the party coordinated expenditure limits challenged in the Cao case. Acceptance of the plaintiffs' sweeping arguments, amici point out, would essentially require the overruling of past Supreme Court precedent affirming the constitutionality of restrictions on coordinated spending.


FEC Adopts New Nonfederal Fundraising Rule

On April 29, 2010, the Federal Election Commission adopted a final rule and "explanation and justification" on "Participation by Federal Candidates and Officeholders at Nonfederal Fundraising Events." The Legal Center filed written comments in this rulemaking in February and testified at the hearing held March 16. The adoption of this rule is the Commission's latest and perhaps final action in an eight-year battle over the agency's ineffective implementation of a provision of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA).

BCRA provides that federal candidates and officeholders may not "solicit, receive, direct, transfer or spend" soft money (i.e., funds that do not comply with federal law contribution restrictions). Notwithstanding this restriction, BCRA also states that federal candidates and officeholders are permitted to "attend, speak, or be a featured guest" at a state or local political party fundraising event. Despite clear congressional intent to prohibit—and clear statutory language prohibiting—federal candidate and officeholder soft money fundraising, the FEC in its 2002 rulemaking to implement these provisions concluded that the latter provision "was a total exemption from the general solicitation ban" and adopted a regulation permitting federal candidates and officeholders to attend, speak, and appear as featured guests at State, district, and local party committee fundraising events "without restriction or regulation."

This FEC regulation was challenged in the "Shays I" and "Shays III" lawsuits, with the CLC representing Senators McCain and Feingold as amici curiae in both cases. In Shays I, the federal district court held that the FEC had failed to adequately explain and justify the rule. And in Shays III, the U.S. Court of Appeals for the D.C. Circuit invalidated the regulation, concluding that the FEC-created regulatory exemption from the general soft money solicitation ban" allows what BCRA directly prohibits."

In the new rule adopted April 29, the FEC repealed the provision permitting federal candidates and officeholders to speak "without restriction or regulation" (i.e., solicit soft money) at nonfederal fundraising events. Under the new rule, the FEC makes clear that though federal candidates and officeholders can attend, speak and be featured guests at nonfederal fundraising events, they may not solicit soft money at such events, nor in the pre-event publicity materials for such events, and they must make clear using disclaimers that they are not soliciting soft money.


CLC Files Comments with FEC in "Yes on Fair" Matter

On April 27, 2010, the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC) in regard to an advisory opinion request (AOR 2010-7) submitted on behalf of "Yes on FAIR." The California political committee is seeking the Commission's opinion as to whether "Members of Congress may solicit funds for "Yes on FAIR" outside the limits and source restrictions prescribed by the Federal Election Campaign Act ("FECA") [i.e., soft money]."

The Legal Center urged the FEC to make clear that FECA, as amended by the Bipartisan Campaign Reform Act of 2002 ("BCRA"), along with existing Commission regulations, require the Commission to advise "Yes of FAIR" that Members of Congress may not "solicit funds for Yes on FAIR outside the limits and source restrictions" prescribed by FECA.

The Legal Center's comments made sure that the Commission was aware of what is at stake in this AOR. "Yes on FAIR" seeks permission to have Members of Congress solicit soft money funds for the ballot measure committee to spend on activities that will shape the electoral environment in which the federal candidates themselves are running for office.

Furthermore, the Legal Center strongly urged the Commission to advise "Yes on FAIR" that solicitation of funds for it by Members of Congress in connection with the November 2010 California general election must comply with FECA amount limitations, source prohibitions and reporting requirements as required by BCRA.


Executive Director Speaks At Government Attorneys Conference

Executive Director Gerry Hebert spoke to the Virginia Local Government Attorneys' Spring Conference on April 29, 2010, in Reston, Virginia. Hebert spoke as part of a panel that addressed redistricting, as well as preclearance and bailout issues under the Voting Rights Act.

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