Legal Center Weekly Report: November 10, 2011
Legal Center Files Brief in Appeal of Decision Overturning Century-Old Law Banning Corporate Contributions to Candidates & Parties / Legal Center Files Brief in Real Truth About Obama’s Continuing Bid to Overturn Donor Disclosure Requirements / FEC Urged by Legal Center to Reject Senator Lee’s Attempt to Create a “Super Leadership PAC” / Legal Center Calls for FEC Overhaul, Submits Congressional Testimony on Dysfunctional Agency/ Trevor Potter Delivers Keynote Address at Conference Board’s Symposium on Corporate Political Spending /Tara Malloy on the PBS News Hour Takes on the Myth of ‘Independent’ Super PACs / Trevor Potter Helps Stephen Colbert File FEC Comments on American Crossroads’ Request to Run “Issue Ads” That are Coordinated with Candidates in Reality But Not in Law
Legal Center Files Brief in Appeal of Decision Overturning Century-Old Law Banning Corporate Contributions to Candidates & Parties
October 26, the Campaign Legal Center, along with Democracy 21, filed an amici brief with the U.S. Court of Appeals for the Fourth Circuit in U.S. v Danielczyk, an appeal of a controversial district court decision overturning the century-old federal restriction on corporate contributions to candidates and political parties.
The corporate contribution restriction overturned in the case dates back to the Tillman Act of 1907, signed into law by President Teddy Roosevelt in the wake of the Gilded Age, an era awash in political corruption and campaign finance scandals. Since that time the restriction on corporate political contributions has been upheld repeatedly by the U.S. Supreme Court, most recently in FEC v Beaumont in 2003. The May 2011 lower court decision overturning the 104-year-old law, issued by Judge Cacheris of the U.S. District Court of the Eastern District of Virginia, failed to consider or even cite Beaumont. Criticism of the action led to a rebriefing of the case, though Judge Cacheris eventually reaffirmed his earlier decision, refusing to abide by Beaumont and other controlling Supreme Court precedent.
“This judicial overreach, if left standing, will authorize large-scale circumvention of existing contribution limits and give rise to political corruption and the appearance of corruption,” said Legal Center Associate Counsel Tara Malloy. “In the post-Citizens United world, corporate vehicles are already being misused to avoid disclosure and the district court’s Danielczyk decision invites the additional evasion of contribution limits. We do not need another decision that will further undermine public faith in their elected officials and the judiciary.”
The case, U.S. v. Danielczyk, is a criminal matter concerning a number of alleged campaign finance violations, including that the defendants illegally directed corporate contributions to Hillary Clinton’s 2008 Presidential campaign.
To read the brief, click here.
Legal Center Files Brief in Real Truth About Obama’s Continuing Bid to Overturn Donor Disclosure Requirements
On October 27, the Campaign Legal Center and Democracy 21 filed an amici brief with the U.S. Court of Appeals for the Fourth Circuit in The Real Truth About Obama (RTAO) v. FEC. This case currently concerns the much-contested “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the FEC’s methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status.
“This appeal is just one of many cases filed nationwide in an attempt to undermine existing disclosure laws and remove any sort of transparency or accountability for those making ‘independent expenditures’ on behalf of candidates,” Legal Center Associate Counsel Tara Malloy stated. “The unstated goal of these challenges is a system where the sponsors and the candidates know who is buying the television ads, but the public is left completely in the dark. Were this goal to be achieved, it would represent a grave threat to the overall health of our representative democracy.”
The Fourth Circuit appeal is the latest chapter in the long-running proceedings in RTAO v. FEC. Originally, RTAO challenged a number of FEC rules, including the rule implementing the electioneering communications funding restriction that was adopted after the Supreme Court’s 2007 decision in Wisconsin Right to Life v. FEC (11 C.F.R. § 114.15). The district court and Court of Appeals upheld all of the challenged rules in 2008 and 2009. Subsequent judicial decisions, most notably Citizens United v. FEC, mooted much of the case, however. In April 2010, the Supreme Court vacated the 2009 Court of Appeals’ decision, and remanded the case for further consideration in light of Citizens United and “the Solicitor General’s suggestion of mootness.” Upon remand, the district court again considered and rejected the two remaining claims relating to the “subpart (b)” definition of “expressly advocating” and the FEC’s “major purpose” methodology in June 2011. The current Fourth Circuit proceedings are the appeal of this decision.
On October 18, 2010, the Legal Center, along with Democracy 21, filed an amici brief with the district court supporting the challenged regulation and policy. Prior to the remand, the two organizations filed two other amici briefs in the case dating back to 2008.
To read the full brief click here.
FEC Urged by Legal Center to Reject Senator Lee’s Attempt to Create a “Super Leadership PAC”
On November 3, the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC), urging the Commission to reject an advisory opinion request submitted by the Constitutional Conservatives Fund PAC (“CCF”), Sen. Michael Lee’s (R-UT) Leadership PAC seeking to fundraise in a manner clearly prohibited by existing law.
Sen. Lee’s Leadership PAC asks the Commission (AOR 2011-21) whether it can raise unlimited contributions from corporations, labor unions and individuals to use for “independent expenditures” supporting or opposing other federal candidates. In other words, Sen. Lee’s Leadership PAC asks the FEC if it can fundraise like a Super PAC.
“This is an easy question, which the Commission should answer with an unequivocal ‘no’,” said Legal Center FEC Program Director Paul Ryan.
The Legal Center and Democracy 21 urged the FEC to reaffirm its opinion that all federal candidates, officeholders and committees they established—including Sen. Lee’s Leadership PAC, CCF—are prohibited from raising or spending funds in connection with a federal election unless the funds are subject to the limitations, prohibitions, and reporting requirements of federal law.
To read the comments, click here.
To read the full press release, click here.
Legal Center Calls for FEC Overhaul, Submits Congressional Testimony on Dysfunctional Agency
On November 3, the Campaign Legal Center and a group of reform organizations urged President Obama to break the gridlock at the FEC by nominating new commissioners, and in congressional testimony, urged the complete overhaul of the dysfunctional enforcement agency.
“For years the FEC has ignored congressional intent and carved out loopholes in the laws passed by Congress, but has reached a new low and currently presides over a system of its own creation where money laundering has been legalized on a colossal scale,” said Legal Center FEC Program Director Paul S. Ryan. “The FEC has broken down to the point that if it is to perform its duty to enforce the nation’s campaign finance laws passed by Congress, a housecleaning of commissioners must take place.”
In their letter to President Obama, the groups urged him to quickly nominate qualified candidates who will enforce the laws on the books. The groups signing the letter to President Obama included the Campaign Legal Center, Common Cause, CREW, Democracy 21, League of Women Voters, Public Citizen and U.S. PIRG.
In testimony submitted to the House Administration Committee on the same day, the Legal Center along with Democracy 21, called on Congress to replace the dysfunctional FEC altogether with a differently-structured agency willing and able to enforce the campaign finance laws passed by Congress.
To read the testimony submitted to the House Administration Committee by the Campaign Legal Center and Democracy 21, click here.
To read the letter sent to President Obama by the reform groups, click here.
To read the full press release click here.
Trevor Potter Delivers Keynote Address at Conference Board's Symposium on Corporate Political Spending
On October 21, Campaign Legal Center President and General Counsel Trevor Potter delivered the keynote address at the “Symposium on Corporate Political Spending” hosted by The Conference Board in New York. Potter offered the audience a century’s worth of historical perspective, and decades of his own experience in the field.
To read Potter’s remarks in their entirety click here.
Tara Malloy on the PBS News Hour Takes on the Myth of "Independent' Super PACs
On October 17, Legal Center Associate Counsel Tara Malloy appeared on a panel on the PBS News Hour to discuss the impact of Super PACs and 501(c)(4)s on the 2012 election. Speaking with Gwen Ifill of the News Hour and a representative of the Heritage Foundation, Malloy repeatedly laid bare the myth of the ‘independence’ of these shadow committees. She pointed out that the FEC has laid out a virtual roadmap for evasion of campaign finance laws in the wake of the judicial decisions in recent years based on the faulty theory that campaign contributions can corrupt, but that millions of dollars given to ostensibly independent shadow campaigns cannot.
To watch Malloy’s appearance on The News Hour, click here.
To read the transcript, click here.
Trevor Potter Helps Stephen Colbert File FEC Comments on American Crossroads' Request to Run "Issue Ads" that are Coordinated with Candidates in Reality but not in Law.
On November 7, Campaign Legal Center President Trevor Potter appeared again on Comedy Central’s “The Colbert Report” as host Stephen Colbert’s “personal lawyer.” This time Potter helped Colbert file comments in support of an FEC advisory opinion request by American Crossroads in which the controversial Super PAC seeks to run ads like those being run by the Nebraska Democratic Party in support of Senator Ben Nelson, featuring Senator Nelson reading a script, yet allegedly not ‘coordinated’ with Senator Nelson.
The tongue-in-cheek letter encouraged the FEC to ignore the Supreme Court’s 1976 Buckley v. Valeo definition of “non-coordinated” as “made totally independently of the candidate and his campaign” and “end up with a ruling that allows outside groups to produce ads with the candidate’s cooperation, themes, and message.”
To watch Colbert’s explanation of the issue, click here.
To watch Trevor Potter’s appearance, click here.