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Feb 23, 2007 -- Legal Center Weekly Report: February 23, 2007
Reform groups sent a letter today urging U.S. House members to support legislation to slow the "revolving door" of Members and senior staffers taking lobbying jobs immediately after leaving Capitol Hill. The reform groups include the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG.
According to the letter, current revolving door abuses should be addressed by incorporating in House legislation restrictions similar to those contained in the U.S. Senate lobbying and ethics reform bill (S. 1). These provisions include extending the "cooling off period" from one year to two years and prohibiting "lobbying activities" defined under the Lobbying Disclosure Act during that period.
Legal Center Files U.S. Supreme Court Brief in WRTL Case
On February 23, 2007, the Campaign Legal Center, which serves as co-counsel to defendant-intervenors U. S. Senator John McCain (R-AZ), and Reps. Chris Shays (R-CT), Marty Meehan (D-MA) and Tammy Baldwin (D-WI), filed its brief in the United States Supreme Court in McCain, et al. v. Wisconsin Right to Life, Inc.
The brief noted that the Supreme Court has long recognized Congress's compelling interest in guarding against the undue and damaging influence that business corporations and unions could exercise on federal elections if permitted to use their general treasuries to fund electioneering. The uncontested facts in this case, the brief argued, leave no doubt that WRTL's advertisements fell into that category. The ads at issue in this case denounced a group of Senators, of whom Senators Feingold and Kohl were known to be a part, for filibustering, and then instructed the audience to call Feingold and Kohl and tell them to oppose the filibusters. That alone, said the brief, was sufficient to establish the likelihood that the ads would have functioned as electioneering activities.
The brief also noted that WRTL had ample alternative means for disseminating its message, including using its established PAC or constituting itself as an MCFL organization that does not accept contributions from business corporations. The brief was also critical of the three-judge court's approach in analyzing the ad in question, noting that the split court below had refused to look beyond the four corners of the ad in reaching its decision. The brief called that approach "blinkered", noting that it "offends common sense" and "cannot be reconciled with McConnell."
The brief of Senator McCain, and Reps. Shays, Meehan, and Baldwin also noted that any ad that satisfies BCRA's definition of 'electioneering communication' and that is likely to influence voters' decisions, based on an examination of the ad's objective content and context, sufficiently evinces an electioneering purpose and implicates the legitimate goals of BCRA. In this case, the brief observed, WRTL's open advocacy of Sen. Feingold's defeat, precisely because of his role in the filibusters, can leave no real doubt of its electioneering purpose. Because WRTL's ads plainly fall at the core of
Section 203's constitutional application, the brief called upon the Supreme Court to reverse the district court's judgment.
The case is set for oral argument in the Supreme Court on April 25, 2007. To read the FEC's brief, click here .
Legal Center Files Comments in Obama AOR
On Tuesday, February 20, the Legal Center joined Democracy 21 in filing comments with the FEC regarding the Advisory Opinion Request (AOR 2007-3) submitted on behalf of Senator Barack Obama (D-IL) and his presidential campaign committee. The AOR requests a ruling to allow Sen. Obama, in the event he becomes the Democratic Party presidential nominee, to "retain the option" to choose public financing for the general election race notwithstanding the intent of his campaign to "provisionally" raise, and deposit into an escrow account, private contributions for the general election between now and the end of the presidential nominating period.
The Presidential Election Campaign Fund Act which states that, as a "condition for eligibility" to receive general election public funding, a candidate must certify that "no contributions" for general election expenses "have been or will be accepted" by the candidate. 26 U.S.C. § 9003(b)(2).
In the filing, the Campaign Legal Center and Democracy 21 recognize that the AOR reflects a good faith effort by Sen. Obama and his campaign to preserve, and to have the opportunity to use, this system that has proven so valuable to our democracy and the American people. Further, the filing recognized Sen. Obama as the first Senator to co-sponsor legislation recently introduced by Sen. Feingold (D-WI) to fix the system for future presidential elections. Nevertheless, our comments make clear our view that the law does not permit the statutory interpretation set forth in the AOR and, for this reason, the FEC should advise Sen. Obama and his presidential campaign committee that their receipt of private funds for the general election will render the committee ineligible to receive general election public financing.
Connecticut 's Public Financing System
On February 15, 2006, the State of Connecticut and several proposed intervening-defendants moved to dismiss a challenge to the public financing provisions of Connecticut's campaign finance law in the consolidated cases, Green Party of Connecticut v. Garfield and Association of CT Lobbyists v. Garfield. Although the plaintiffs in these consolidated cases also seek to invalidate Connecticut's ban on lobbyist and contractor contributions, defendants and intervening defendants are not moving to dismiss those causes of action at this time.
The motion to dismiss focuses on the statutory requirement that minor and petitioning candidates demonstrate a minimum level of public support to be eligible for public funds. Plaintiffs claim that this requirement discriminates against minor parties in violation of the First and Fourteenth Amendments. Defendant-intervenors argue that the Supreme Court's decision in Buckley v. Valeo upheld a similar requirement in the presidential public financing system, affirming that the state can condition the receipt of public funds on a "preliminary showing of a significant modicum of support."
The motion also urges the court to dismiss plaintiffs' challenge to certain "trigger provisions" of the Connecticut law that provide a participating candidate with additional public funds when an opposing non-participating candidate or independent group makes expenditures in excess of the spending limit. The motion argues that federal district and appellate courts have uniformly rejected challenges to comparable "trigger provisions" when reviewing other public election financing systems . This precedent recognizes that trigger provisions help ensure that publicly-financed candidates, who are subject to spending limits, are not outspent by privately-financed opponents or independent groups.
The Campaign Legal Center is serving as co-counsel for the defendant-intervenors with the Brennan Center, Democracy 21, Donald J. Simon of Sonosky, Chambers, Sachse, Endreson & Perry, and the law firms, WilmerHale and Hogan & Hartson L.L.P.
The Legal Center's Associate Legal Counsel, Paul S. Ryan, testified telephonically on Feb. 21 before the Vermont Senate Committee on Government Operations, regarding campaign finance reform options following the Supreme Court's 2006 decision in Randall v. Sorrell, where the Court struck down Vermont's contribution limits as unconstitutionally low. Ryan advised the Committee how to enact contribution limits likely to withstand constitutional challenge, and also advised the Committee of other campaign finance reforms implemented in other states, including public campaign financing with voluntary spending limits, "electioneering communication" restrictions, and "527" reform.
Legal Center Blog Highlights
Each week, the Campaign Legal Center staff posts blog entries on its site, www.clcblog.org . Click to read this week's entry: " More Thoughts on the Whereabouts of Hans von Spakovsky on the Nights in Question ," " Side-by-Side Comparison of House and Senate Lobbying and Ethics Reform ," or " 'So exactly where were you, Hans von Spakovsky, on the nights in question?' " or to sign up for blog updates, click here .
To read a variety of this week's editorials and articles on a variety of Campaign Legal Center issues, please click here . |
