CLC Update November 24, 2014
- Fifth Circuit Reverses Lower Court and Restores Mississippi Disclosure Requirements
- Campaign Legal Center Urges Federal Court to Reject Challenge to Wisconsin Restrictions on Coordinated Spending
- Former Solicitor General Charles Fried Joins Campaign Legal Center Board
- FCC Complaint Filed Against Disney-Owned ABC Affiliate in Chicago for Ignoring Warnings of Violations of Ad Disclosure Rules
- Watchdogs File Reply Comments with the FCC
- Campaign Legal Center Urges State of Virginia to Establish a Redistricting Commission
- Trevor Potter Addresses International Foundation for Electoral Systems’ (IFES) U.S. Election Program Plenary Session on Campaign Finance
- Trevor Potter Joins Discussion of Disclosure Laws at the Yale Institution for Social & Policy Studies (ISPS)
- Joshua Bone Announced as New Legal Fellow
Fifth Circuit Reverses Lower Court and Restores Mississippi Disclosure Requirements
On November 14, in Justice v. Hosemann, the United States Court of Appeals for the Fifth Circuit reversed a trial court ruling that had struck down several Mississippi disclosure requirements as applied to certain individuals and groups engaged in ballot measure advocacy. The Campaign Legal Center had filed an amicus brief and later a supplemental letter brief in the case urging this result.
“We are pleased to see the Circuit Court adhere to established Supreme Court precedent that recognizes the vital public interest in disclosing the identities of those funding efforts to influence elections—including ballot initiatives,” said Tara Malloy, Legal Center Senior Counsel. “Ignoring precedent, the district court had improperly discounted the state’s interests, disproportionately emphasized the plaintiffs’ burdens, and failed to pay any deference to the legislators elected by the people of Mississippi.”
The District Court had invalidated Mississippi’s requirement that groups register as political committees upon receiving or spending in excess of $200 to support or oppose a constitutional ballot measure as applied to plaintiffs. It also invalidated a parallel provision that required individuals spending over $200 to influence ballot measures to file disclosure reports.
The Fifth Circuit Court of Appeals decision, found that the plaintiffs’ attempt to bring an as-applied challenge failed because they failed to present any concrete facts supporting such a challenge. It then rejected plaintiffs’ arguments that Mississippi’s disclosure requirement should be subject to strict scrutiny, and instead followed the approach of other sister circuits in applying the lesser but still meaningful standard of “exacting scrutiny.” This legal point was precisely the one advocated by the Campaign Legal Center in its amicus brief
To read the Fifth Circuit Court’s opinion, click here.
To read the supplemental letter brief filed by the Campaign Legal Center on August 22, click here.
To read the original brief filed by the Campaign Legal Center on March 4, click here.
On October 29, the Campaign Legal Center submitted an amicus brief to the U.S. District Court for the Eastern District of Wisconsin, in Citizens for Responsible Government Advocates (CRG) v. Barland. The brief urged the court to reject CRG’s motion to enjoin Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups. The court had already entered a temporary restraining order blocking enforcement of the law.
CRG wishes to make communications in coordination with three candidates for office in the state, including materials lauding “their backgrounds, their efforts to become politically involved, and their work to further fiscal responsibility in government.” CRG argues that if it does not expressly advocate the election or defeat of these candidates in its communications, it should be free to coordinate such communications with the candidates without limitation. But the U.S. Supreme Court specifically rejected this 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.”
“The Supreme Court has long recognized that expenditures coordinated by outside groups with candidates are tantamount to ‘disguised contributions’ made to the candidates themselves,” said Tara Malloy, Campaign Legal Center Senior Counsel. “The value of a coordinated expenditure as a contribution to a candidate is not eliminated simply by the omission of words of express advocacy.”
The Legal Center was assisted in the filing of the amicus brief by Lester A. Pines and Susan Crawford of Cullen Weston Pines & Bach LLP.
To read the brief, click here.
Former Solicitor General Charles Fried Joins Campaign Legal Center Board
On November 17, the Campaign Legal Center announced that Charles Fried had joined the organization’s board of directors. Prof. Fried served as Solicitor General of the United States under President Ronald Reagan, and as an Associate Justice of the Supreme Judicial Court of Massachusetts. He currently is the Beneficial Professor of Law at Harvard Law School, where he first taught in 1961.
Professor Fried has a longstanding interest in the area of campaign finance and has served as counsel to amici in several recent U.S. Supreme Court cases in the field. He also co-chaired with Legal Center President Trevor Potter the American Bar Association Task Force on Lobbying and Ethics Reform, which examined the political fundraising activities of lobbyists.
“The Campaign a Legal Center is honored and fortunate to have Charles Fried join our Board,” said Trevor Potter, President of the Campaign Legal Center. “He is a nationally known and respected Republican lawyer and scholar. His views on the importance of improving the current state of our campaign finance practices, and the fact that this can be done in ways fully consistent with the First Amendment, will be of enormous assistance to us as we litigate these issues in the courts."
To read Mr. Fried's website biography, click here.
FCC Complaint Filed Against Disney-Owned ABC Affiliate in Chicago for Ignoring Warnings of Violations of Ad Disclosure Rules
On November 12, the Campaign Legal Center, Common Cause and the Sunlight Foundation filed a complaint at the Federal Communications Commission (FCC) alleging violations of long-standing rules and law by WLS, an ABC broadcast television station in Chicago, IL. WLS is owned by ABC, a subsidiary of The Walt Disney Company. The complaint notes that WLS refused to disclose the "true identity" of the sponsor of political ads being run by Independence USA PAC, even after the watchdog groups alerted the station to its violations and identified the PAC’s sole sponsor as former New York City Mayor Michael Bloomberg.
“WLS undertook no effort to identify the ad’s true sponsor, despite being warned of its violations and being informed that Michael Bloomberg was the sole backer of Independence PAC,” said Meredith McGehee, Campaign Legal Center Policy Director. “This is a knowing and willful violation of the law, but more importantly failure to identify the true sponsor of the ad does a grave disservice to WLS viewers.”
The Communications Act and the FCC’s sponsorship identification rules require broadcasters to go beyond simply naming the entity that paid for an ad. In this case, Independence USA is essentially a personal advertising arm for Mr. Bloomberg, and the station failed to fully and fairly inform the public about who was attempting to influence them. The complaint requests the FCC to declare that, for its failure to include the true identity of the sponsor of the ad, WLS is not in compliance with Section 317 of the Communications Act and 47 CFR Section 73.1212
To read the complaint, click here.
On October 30, the Campaign Legal Center joined with Common Cause and the Sunlight Foundation in filing reply comments at the Federal Communication Commission (FCC) regarding the complaints the groups filed against KGW-TV in Portland, Oregon. The complaint urged the FCC to sanction KGW for failing to exercise reasonable diligence to identify the true sponsor of political ads the station was running. In May 2014, KGW ran multiple ads attacking Senate candidate Monica Wehby and supporting Jason Conger. The sponsor behind the ads is identified as the “American Principles Fund,” but, as the complaint details, hedge fund manager Sean Fieler is the true sponsor. Fieler is the founder of the American Principles Fund and the super PAC received nearly all of its funding from him. The complaint against KGW is one of a series of complaints the groups have filed with the goal of getting the FCC to enforce long-standing law and rules requiring TV stations to disclose to viewers the “true identity” of the sponsors of advertisements.
To read the comments, click here.
On November 17, the Campaign Legal Center’s Policy Director Meredith McGehee sent a letter to the Virginia Commission on Integrity and Public Confidence in State Government. The letter proposes the creation of a Redistricting Commission to insure the representation of voter interests from all parts of the state and political spectrum. The proposal comes in light of the recent rejection by a federal court of Virginia's congressional map as an unlawful racial gerrymander. The letter suggests looking to other states’ successful commissions as a standard on which Virginia can build its own.
To read the letter, click here.
On November 3, Legal Center’s President Trevor Potter, addressed a plenary session of International Foundation for Electoral Systems’ (IFES) U.S. Election Program along with Commissioner Ellen Weintraub of the Federal Election Commission (FEC). The discussion “Money Talks: Free Speech, Political Action Committees and the Future of Campaign Finance Regulation”, focused on the current state of campaign finance in the United States in the wake of recent controversial Supreme Court decisions.
To watch the plenary session on C-SPAN, click here.
Trevor Potter Joins Discussion of Disclosure Laws at Yale Institution for Social & Policy Studies (ISPS)
On November 10, Trevor Potter joined a discussion of disclosure laws hosted by the Yale Institution for Social & Policy Studies (ISPS). The event “Show Me the Money: How Transparency in Political Donations Could Change American Elections”, focused on current and proposed campaign finance disclosure laws and their effects on elections. Mr. Potter joined Legal Center Board member Heather Gerken of Yale Law School in specifically addressing the legal principles underlying the laws and the proposed reforms.
Joshua Bone Announced as New Legal Fellow
On October 30, the Legal Center announced Joshua Bone as its 2014-15 Campaign Legal Center Legal Fellow. Mr. Bone is the third Fellow to hold the one-year position designed for recent law school graduates interested in issues relating to campaign finance, voting rights and other election law issues. The Legal Center gratefully acknowledged the financial support of the Bernard & Audre Rapoport Foundation for providing the funding support to launch the Legal Fellow program in 2012.
“We are very pleased to welcome Josh to the Campaign Legal Center where he hit the ground running in terms of his contributions to ongoing litigation,” said Legal Center Executive Director J. Gerald Hebert. “Our Legal Fellows have proven an incredibly valuable asset to CLC’s litigation team and Josh has shown he is continuing that tradition from his first day where he has provided invaluable assistance in our case challenging the unconstitutional Texas photo ID law.”
Prior to joining the Legal Center, Mr. Bone clerked for Judge David S. Tatel on the United States Court of Appeals for the District of Columbia Circuit. Mr. Bone is a 2013 graduate of Yale Law School. He holds a B.A. in History and Political Science from Yale University.