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Aug 31, 2007 -- Legal Center Weekly Report: August 31, 2007
On August 30, 3007, the U.S. District Court for the District of Columbia (Sullivan, J.) rendered its final decision and judgment in Shays and Meehan v. FEC (Shays II) - a lawsuit challenging the FEC's failure to regulate 527 groups. At issue was whether the defendant FEC had provided a reasoned explanation for its decision to regulate 527 groups by case-by-case adjudication, instead by promulgating a rule, and had thereby satisfied the standards of the Administrative Procedure Act. The court ruled that it would not require the FEC to conduct a rulemaking proceeding, basing its decision on the deference courts owe to administrative agencies in deciding whether to pursue enforcement through regulation or case-by-case adjudication.
Shays and Meehan had argued that the FEC's failure to issue a broadly-applicable rule on this subject was arbitrary and capricious, and based upon an erroneous interpretation of the law. In its decision, the court suggested that while a 527 regulation would be a reasonable way for the FEC to fulfill its enforcement responsibilities, the court was unable to order such a rulemaking. The court also criticized the explanations offered by the FEC for its decision not to issue such a regulation, and found that the FEC approach to dealing with 527 groups was based on the agency's misinterpretation of the landmark Supreme Court decision in Buckley v. Valeo.
Plaintiffs were represented by the law firms of WilmerHale, LLP, Heller Ehrman, LLP, Fred Wertheimer of Democracy 21, and attorney Donald Simon of Sonosky, Chambers, Sachse, Endreson & Perry, LLP. The Campaign Legal Center served as counsel to amici curiae U.S. Senators John McCain (R-AZ) and Russ Feingold (D-WI), supporting plaintiffs Shays and Meehan in the case.
On August 27, 2007, the Campaign Legal Center filed an amici brief with the U.S. District Court for the Northern District of California in Committee on JOBS, et al. v. Herrera, et al. The case was filed by two San Francisco political committees to challenge a San Francisco ordinance limiting contributions to political committees that make only independent expenditures in municipal elections. The committees are currently seeking a preliminary injunction against enforcement of the ordinance.
The amici brief urges the Court to reject the committees' request for preliminary relief, arguing that plaintiffs have shown no likelihood of success on the merits of their case. Amici argue that San Francisco's limit on contributions to independent expenditure committees, passed by the voters as part of Proposition O in 2000, directly advances the City's interest in preventing corruption and the appearance of corruption. The brief further explains that the Supreme Court's decision in McConnell v. Federal Election Commission—a decision completely ignored by the plaintiffs in their papers—makes clear that contributions like those at issue in the case may be constitutionally regulated.
The brief was filed by the Legal Center on behalf of itself and four other nonprofit political reform organizations: California Clean Money Campaign, California Common Cause, the Center for Governmental Studies, and Demos: A Network for Ideas and Action.
Campaign Legal Center Policy Director Meredith McGehee issued a statement this week in response to the scandal surrounding Sen. Larry Craig (R-ID). She stated, "Ethical lapses are neither a Democratic nor a Republican problem, nor are they a House or a Senate problem - they are a congressional problem. The sooner Members recognize this fact, the sooner they can put their Houses in order and begin trying to regain the public trust."
McGehee continues, "As the Legal Center has noted for quite some time now, in order to restore its credibility in the eyes of the people they serve, both houses of Congress must make their ethics enforcement not only more transparent, but create a more independent enforcement entity. "No comments" and "black hole" proceedings only serve to fuel the public cynicism that Congress is more interested in looking out for its own and limiting political fallout than enforcing strong standards of public integrity."
Reform Group Statement on FEC Action on Complaint Filed Against ACT
On August 23, 2007, the FEC entered into a settlement with America Coming Together (ACT), a pro-Democratic 527 group that raised approximately $137 million during the 2004 presidential campaign. Under the settlement, ACT agreed to pay a $775,000 civil penalty and to cease and desist from violating the campaign finance laws by using soft money to pay for federal campaign activities.
The settlement arose out of two FEC complaints filed by Democracy 21, the Campaign Legal Center and the Center for Responsive Politics against ACT on January 15, 2004 and June 21, 2004, for illegally spending soft money to influence the 2004 presidential campaign.
According to the statement , "The settlement with ACT, and previous similar FEC settlements with other 527 groups that made illegal expenditures in the 2004 presidential election, sends a stark warning that unless clear regulations are adopted and other steps are taken to signal much tougher enforcement by the FEC we are facing potential huge illegal expenditures being made by 527 groups in the 2008 presidential and congressional elections, for the third federal election in a row."
Upon the resignation of Attorney General Alberto Gonzales, Campaign Legal Center Executive Director J. Gerald Hebert, stated , "The departure of Attorney General Alberto Gonzales will allow the Department of Justice to begin to restore both the credibility of the Department in the eyes of the public and the morale its employees."
He goes on to say, "The work of the Justice Department is too important to our democracy to be undermined, as it was by the outgoing Attorney General." Hebert urged the President to select a new Attorney General that will restore integrity and credibility to the Department of Justice.
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 entries: " 527s and the FEC: An Uncertain Future ," " When "No Comment" Speaks Volumes ," " FEC Finally ACTs, But Its Too Little, Too Late ," " Campaign Legal Center Files Amici Brief in Support of San Francisco Contribution Limits, " and " Restoring Justice at Justice " or to sign up for the blog, click here .
To read a variety of this week's editorials and articles on a variety of Campaign Legal Center issues, please click here . |
