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Sep 15, 2006 -- Legal Center Weekly Report: September 15, 2006 Legal Center Files Legal Memos in WRTL v. FEC; Court Denies Injunction
This week, the Legal Center filed several pleadings in WRTL v. FEC. This is an as-applied challenge to the electioneering communications provisions of BCRA. The case began in 2004 when Wisconsin Right to Life (WRTL) proposed to broadcast what it called a "grass roots lobbying ad" critical of Senator Russ Feingold, who was a candidate for re-election that year. WRTL was denied an injunction respecting the proposed 2004 ads and appealed. The Supreme Court unanimously held in January 2006 that the three-judge district court had erred in reading the Court's decision in McConnell upholding BCRA as foreclosing all as-applied challenges. The case then proceeded through discovery and presently pending before the court are various dispositive cross motions. Oral argument on those cross motions is set for September 18, 2006 before the three-judge court.
Meanwhile, WRTL recently filed a motion for preliminary injunction regarding a brand new ad that it proposed to run in 2006. The group sought to broadcast an ad that would have referenced the name of a federal candidate (Sen. Herb Kohl-WI) just before the Wisconsin primary and within 60 days of this year's general election, and they proposed to fund the ad with general treasury monies (which BCRA prohibits). WRTL could have broadcast the ad using PAC funds but made the decision not to do so. On Thursday, September 7, a three-judge panel of the federal district court for the District of Columbia unanimously denied an injunction sought by WRTL. This week, the court released its opinion explaining its reasoning. The court found, among other things, that while WRTL would be harmed if the injunction did not issue, that harm was outweighed by the harm to the Government if the injunction were issued. Moreover, the court found that the public interest would not be furthered by issuance of the injunction.
Earlier this week, the Legal Center filed a supplemental memo regarding discovery. In the filing, the Legal Center pointed out that WRTL's additional discovery responses provide more record evidence that WRTL's 2004 ads regarding Senator Feingold are similar in all material respects to the ads reviewed in McConnell. First, the additional discovery further demonstrates that, like the ads considered in McConnell, the 2004 ads were intended to influence a federal election. Second, the additional discovery further demonstrates that WRTL had alternative means (i.e., a PAC) to disseminate its message. The Legal Center also filed a Rule 56(f) declaration, requesting additional discovery in the event that WRTL asserts that the ad it intended to run this year naming Senator Kohl is included within its pending motion for summary judgment.
To view the three-judge court opinion denying the preliminary injunction, click here.
On September 13, 2006 Reps. Christopher Shays (R-CT) and Martin Meehan (D-MA) filed a motion in the D.C. federal district court, asking the court to enforce its earlier order in Shays & Meehan v. FEC (Shays II)—a lawsuit challenging the FEC's failure to regulate 527 groups. The Legal Center represents U.S. Senators John McCain and Russ Feingold in this case as amici curiae.
In an opinion and order issued by the court in March 2006, the court found that the FEC had violated the Administrative Procedures Act, reasoning that the FEC's "case-by-case adjudication [of 527 group non-compliance with campaign finance laws] appears to have been a total failure." The court in March ordered the FEC to "articulate its reasoning for its decision to proceed with case-by-case adjudication or to promulgate a rule, if necessary." Despite a June letter from Reps. Shays & Meehan to the FEC noting the importance that the FEC act in time to provide clear guidance on the regulation of 527 groups prior to the November general election, and asking the Commission to comply with the order within 30 days, the FEC has not yet complied with the court's order.
Reps. Shays' and Meehan's motion filed this week asks the court to establish a deadline, "for example, within 30 days after entry of an order on this motion," for the FEC to issue its new explanation and justification for its decision not to adopt rules regulating 527 groups, or to begin a rulemaking to address 527 group compliance with federal campaign finance laws.
To view the motion and supporting memorandum, click here.
In response to the rules change on earmarks passed earlier this week by the House of Representatives, Campaign Legal Center Policy Director Meredith McGehee stated, "The resolution on earmarking fails on the only account that matters - it fails to address the corruption issues in lobbying and ethics laid bare by the Abramoff scandals."
To read the full statement, click here.
In response to Rep. Bob Ney's plea deal stemming from his role in the Jack Abramoff lobbying scandal, Meredith McGehee stated, "Despite what congressional leadership is saying, the growing list of plea agreements, convictions and indictments is not just a case of a few bad apples. And the familiar refrain that a guilty plea is another example showing that 'the system works,' just doesn't hold water." She continues, "If this were really a case of just a few bad apples, Congress would have actually passed the substantive lobbying and ethics reforms they promised in January."
To read the full statement, click here.
Legal Center Sends Summary of Current Litigation Cases to Hill
The Campaign Legal Center has compiled a summary of court cases of interest in the areas of campaign finance and election law. This document, current as of September 15, 2006, provides a brief description of pending and recently decided cases, and the Legal Center's involvement in those cases. The summary was sent to all Members of the House and Senate.
To view the litigation summary, click here.
Campaign Finance Overview to American University Students
This week, J. Gerald Hebert, the Legal Center's Executive Director and Director of Litigation, gave an overview of the politics behind BCRA, its positive consequences and the future of campaign finance reform to students at American University's Washington Semester. In addition, Hebert also gave the students a brief synopsis of the current state of lobbying reform and redistricting reform.
Legal Center Blog Highlights
Each week, the Campaign Legal Center staff posts blog entries on its site, www.clcblog.org. To read this week's entries, "Two Years of Intimidation & Not Even an Apology from the IRS," and "One Bad Apple Don't Spoil the Whole Bunch???" or to sign up for blog updates, click here.
To read a variety of this week's editorials and articles on campaign finance, please click here. |
