Legal Center Weekly Report: January 26, 2012

Supreme Court Upholds Ban on Campaign Contributions and Independent Expenditures by Foreign Nationals / Rep. Van Hollen’s challenge of FEC Rules Heard in District Court / In Two Appearances, Trevor Potter Helps Stephen Colbert Transfer Control of His Super PAC and Avoid Coordination as Colbert Weighs Candidacy / Petition Urges Obama to Act Swiftly to Overhaul the FEC by Replacing Commissioners / Legal Center’s Paul Ryan Addresses Super PACs on C-SPAN / Legal Center President Appears on The Diane Rehm Show to Discuss Citizens United, and Its Impact / Legal Center Attorney on NPR’s To The Point

Supreme Court Upholds Ban on Campaign Contributions and Independent Expenditures by Foreign Nationals

The U.S. Supreme Court summarily affirmed a ruling by a three-judge district court in Bluman v. Federal Election Commission which had upheld the federal ban on campaign contributions and independent expenditures by foreign nationals temporarily residing in the United States. 

In a statement, Tara Malloy, Legal Center Associate Counsel, praised the result but questioned the Court’s doctrinal consistency in its rulings in Bluman as opposed to its earlier decision in Citizens United. In the previous decision, “the narrow, 5-4 majority expressed the extremely naïve view that independent expenditures were essentially harmless and could not corrupt or even lead to the appearance of corruption of our elections.  Yet today, the Court took a step back from that decision and upheld a much broader ban on both contributions and expenditures by foreign nationals.” 

“The staggering sums being raised and spent ‘independently’ by close family, friends and associates of the candidates in Iowa and other early primary and caucus states make a mockery of the Court’s assumption in Citizens Untied ruling that independent expenditures have no influence over candidates and officeholders.  Perhaps today’s order from the Court is some indication that the Court is aware its Citizens United ruling has unleashed unprecedented flood of undisclosed money into our body politic and perverted our elections.”

 To read the release, click here.

To read the decision upholding the ban, click here.

Rep. Van Hollen’s Challenge of FEC Rules Heard in District Court

On January 11, oral argument was heard in Van Hollen v. Federal Election Commission in U.S. District Court in Washington.  Representative Chris Van Hollen (D-MD) has challenged an FEC regulation that has improperly narrowed the scope of the McCain-Feingold law’s disclosure requirements and allowed nonprofit 501(c)(4) advocacy groups, 501(c)(6) business associations and others to spend millions on “electioneering communications” while keeping secret the donors who funded these ads. 

The McCain-Feingold Act, as the Congressman’s brief emphasized, “requires persons, including corporations and other groups, that pay for “electioneering communications” to disclose “all contributors … of $1,000 or more,” or alternatively, to use a segregated account and to disclose all “all contributors … of $1,000 or more to that account.”  (Emphasis added.)  The challenged FEC rule, by contrast, requires corporations and labor organizations to disclose only those contributors who have affirmatively indicated that their contributions are “for the purpose of furthering electioneering communications.”  Because few contributors specifically designate their contributions for electioneering communications few, if any, contributors are subject to disclosure.  The regulation thus runs counter to the clear language and purpose of the statute, effectively allowing corporations and labor organizations to run “electioneering communications” without disclosing their contributors. 

Rep. Van Hollen has challenged this FEC regulation as arbitrary, capricious and contrary to law under the Administrative Procedures Act.

The Campaign Legal Center is part of Representative Van Hollen’s pro bono legal team, led by Roger Witten of the law firm WilmerHale and Fred Wertheimer of Democracy 21.

To read the summary judgment brief and original complaint, click here.

In Two Appearances, Trevor Potter Helps Stephen Colbert Transfer Control of His Super PAC and Avoid Coordination as Colbert Weighs Candidacy

On January 12, Legal Center President Trevor Potter appeared again on Comedy Central’s “The Colbert Report” as host Stephen Colbert’s “personal lawyer.” As Colbert weighed a bid for “President of the United States of South Carolina”, Potter assisted him in transferring control of The Colbert Super PAC to fellow Comedy Central host Jon Stewart.

The discussion focused on the fact that FEC coordination regulations are so riddled with loopholes that it is quite easy for candidates to ‘coordinate’ with Super PACs without violating the agency’s regulations barring coordination.  Potter is representing Colbert through his private practice and has disqualified himself from any Legal Center consideration or activity regarding Colbert’s political activities.

On January 17, Potter appeared via iPhone on Comedy Central’s The Daily Show as the attorney for both Stephen Colbert and the Colbert Super PAC.  Host Jon Stewart and Colbert discussed how to avoid violating loose coordination rules while planning Colbert Super PAC ads to be run in South Carolina in the run-up to the primary there.      

The Comedy Central hosts used an iPhone to reach Potter, who walked them through how to avoid violating coordination restrictions. 

To watch Trevor Potter’s January 12 appearance on The Colbert Report, click here.

To watch his appearance January 17 by iPhone on The Daily Show, click here

Petition Urges President Obama to Act Swiftly to Overhaul FEC by Replacing Commissioners

The Campaign Legal Center and a broad coalition of civic organizations launched a petition – following a process set up by the White House – to urge President Obama to appoint new commissioners to the Federal Election Commission (FEC). The administration has promised to respond to petitions receiving at least 25,000 signatures.

“This petition is an effort to force President Obama’s hand to act.  The Federal Election Commission as currently composed is simply refusing to enforce the laws on the books.  The Commission has even crafted additional loopholes to water down existing campaign finance laws,” said Legal Center Policy Director Meredith McGehee.

“The presidential primary season is in full swing, with millions of dollars pouring in to fund misleading ads.  The agency charged with holding back the deluge – the FEC – is a dysfunctional mess.  Three of the six commissioners staunchly refuse to enforce the law, and five of the six are serving despite expired terms.”

The petition urges the President to act quickly to nominate replacements for all five commissioners serving expired terms.

To read the petition, click here.

Legal Center’s Paul Ryan Addresses Super PACs on C-SPAN

On January 23, Legal Center FEC Program Director Paul Ryan participated in a panel of experts on C-Span to discuss Super PACs and their impact on the 2012 election. The two-hour discussion looked into the court decisions and FEC regulations that have led to the current state of affairs and discussed possible legislative and regulatory remedies. 

The panel, sponsored by the Sunlight Foundation featured experts from the reform community, the anti-regulatory community and the media, including: Eliza Newlin Carney, staff writer for CQ Roll Call; Allen Dickerson, Legal Director and Interim Executive Director of the Center for Competitive Politics; Mimi Marziani, counsel for the Democracy Program at the Brennan Center for Justice at New York University School of Law; and Daniel Schuman, policy counsel at the Sunlight Foundation and Director of the Advisory Committee on Transparency.

Legal Center President Appears on The Diane Rehm Show to Discuss Citizens United, and Its Impact

On January 17, NPR’s Diane Rehm hosted Legal Center President Trevor Potter on a panel discussion focused on the vast amounts of money spent by Super PACs supporting specific Presidential candidates this election cycle.  The group also addressed the impact of Super PACs on election outcomes and if they are a corrupting influence on our political process. 

“I actually predict their biggest impact has already occurred in the primaries where you can spend relatively less money and make a big difference, as we saw in Iowa. We will see a lot of spending in the general election. The difference is unlimited individual, unlimited corporate to these groups, which we didn't have before,” stated Trevor Potter on-air.

The other guests on panel were Dave Levinthal a political reporter for Politico; Jan Baran, former general counsel to the RNC; and Bob Edgar, president of Common Cause. 

To listen to the entire one-hour discussion on the Diane Rehm Show, click here.

Legal Center FEC Program Director on NPR’s To The Point

On January 17, National Public Radio’s “To The Point” show also hosted a discussion of the impact of Super PACs in the early stages of the presidential primary process.  Legal Center FEC Program Director Paul Ryan joined host Warren Olney in a discussion of the free-spending shadow campaign committees along with fellow guests David Keating of the Club for Growth and Chris Frates of National Journal.

To listen to NPR’s To The Point, click here.

 
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