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Dec 22, 2006 -- Legal Center Weekly Report: December 22, 2006
On December 21, 2006, a divided panel of the U.S. District Court for the District of Columbia struck down the application of the "electioneering communications"' provisions in the Bipartisan Campaign Reform Act (BCRA) to three specific ads that the Wisconsin Right To Life corporation (WRTL) sought to air during the 2004 Wisconsin Senate election. The ads mentioned then-candidate Senator Russell Feingold (D-WI) by name.
BCRA's "'electioneering communications'" provisions prohibit the use of corporate or union treasury funds to pay for any broadcast ad that refers to a clearly identified federal candidate and is aired within 30 days of a primary election, or 60 days of a general election involving that candidate. Such ads must instead be funded with corporate or labor union PAC funds provided by individual donors. In McConnell v. FEC, the Supreme Court upheld the constitutionality of the "electioneering communications" provisions in a facial challenge.
The December 21 split decision of the three-judge court found that the "electioneering communications" provisions were unconstitutional as applied to the ads in question. In its ruling, the two-member majority reviewed only the text of the three ads and concluded that they were not intended to influence the 2004 Wisconsin Senate election and thus could not be regulated as "electioneering communications." The lawsuit was brought by WRTL against the Federal Election Commission. Senator John McCain (R-AZ), and Representatives Christopher Shays (R-CT), Martin Meehan (D-MA) and Tammy Baldwin (D-WI) intervened in the case as defendants to help defend the law. The Legal Center is serving as co-counsel to the defendant-intervenors in the case.
Legal Center Executive Director and Director of Litigation, J. Gerald Hebert, expressed disappointment with the divided panel decision. Hebert said in a statement that the court majority was wrong to fail to look at the context surrounding the ads in question. Hebert noted that WRTL had been engaged in an active campaign in 2004 to defeat Senator Feingold and that defeating Senator Feingold was in fact WRTL's top priority in 2004. Hebert added that if the two-member majority of the court had viewed the ads in the context of the relevant factual circumstances, as Judge Roberts did in his dissenting opinion, then the court would have reached the correct decision that the ads were the kind of campaign ads that BCRA intended to regulate. It is expected that the case will be appealed to the United States Supreme Court.
Reform Groups Urge Congress to Support Office of Public Integrity
On December 21, 2006, the Campaign Legal Center joined Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG in a letter sent to Senators and Representatives urging them to support the establishment of an Office of Public Integrity (OPI) to help enforce the ethics rules. The letter is accompanied by a one-page summary that sets forth essential elements for an OPI.
According to the letter, "it is essential to establish a nonpartisan, professional enforcement entity with real authority to help enforce the House ethics rules. This reform is the lynchpin for all other ethics reforms."
Legal Center Policy Director Meredith McGehee issued a statement this week giving special notice of FCC Commissioner Robert McDowell's decision to recuse himself from the AT&T's buyout of Bell South. "Facing pressure from his chairman and a free pass from the FCC's counsel, he had all kinds of cover to make the wrong decision about participating in the decision on the buy out. To his credit, Commissioner McDowell made the right choice," McGehee stated. "In an era where the revolving door increasingly swings both ways and newly-minted or re-minted government officials expedite the agendas of their one-time clients and employers, it is refreshing to see a former telecommunications lawyer/lobbyist recognize that the appearance of a conflict of interest can be just as important as an actual conflict, especially in terms of public confidence in government actions."
Former FEC Chairman Joins Campaign Legal Center Board
The Campaign Legal Center announced that Scott Thomas has joined the organization's Board of Directors. Mr. Thomas is a former Chairman of the Federal Election Commission (FEC) and currently heads up the Political Law practice at the law firm Dickstein Shapiro.
"Scott's expertise and perspective on the FEC will make him a tremendous asset to our board," said Trevor Potter, former Chairman of the Federal Election Commission and president of the Campaign Legal Center. "I had the great pleasure of serving with Scott on the Commission and look forward to his adding his wide breadth of knowledge to the distinguished panel that makes up our board of directors."
Legal Center Blog Highlights
Each week, the Legal Center staff posts blog entries on its site, www.clcblog.org. Click to read this week's entries: "Gerrymandering Is Alive and Well: Why We Need Redistricting Reform."
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