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Posted May 21, 2010 by J. Gerald Hebert and Tara Malloy

Challenges to Campaign Finance and Disclosure Laws Multiply After Citizens United Ruling from Roberts Court

In January 2010, the Roberts Court in Citizens United v. FEC abandoned any pretense of its claimed commitment to judicial modesty and respect for precedent, and overruled two seminal campaign finance cases: Austin v. Michigan Chamber of Commerce and McConnell v. FEC. 

The Citizens United decision effectively authorized corporations and unions to make unlimited expenditures of treasury funds to influence federal and state elections.  This radical step captured the nation’s attention, drawing widespread public outrage, the ire of the White House, and a legislative response[1] from Congress aiming to mitigate the damage inflicted by the ruling. 

However, the attention drawn by the Citizen United decision has obscured the many additional challenges to existing campaign finance laws – including challenges to simple donor disclosure requirements – that are making their way through the lower courts in the hope of finding a sympathetic audience before the Supreme Court. 

These challenges are a part of a systematic, long-term litigation offensive mounted by deep-pocketed interests who are opposed to any type of regulation of political spending.  Emboldened by the conservative majority in the U.S. Supreme Court, national party committees, trade associations, ideological groups, so-called “527” organizations and other opponents of campaign finance regulation have brought an unprecedented number of cases in the past three years to challenge campaign finance laws at the federal, state and municipal levels.  Citizens United may constitute their greatest success thus far, but the decision is by no means the endpoint of their efforts.  Instead, as their counsel have openly conceded, this anti-reform effort aims to dismantle contribution limits, public finance programs, the remaining limitations on corporate and union political activity and most accompanying disclosure requirements.

A great number of the challenges in recent years have been filed by two well funded organizations that reveal little to nothing about their sources of their funding: The James Madison Center for Free Speech and the Center for Competitive Politics (CCP). 

The Madison Center is headed up by James Bopp, Jr., an RNC Committeeman and the attorney who launched the initial Citizens United challenge to the corporate expenditure restrictions.  Mr. Bopp and the Center have been involved in a number of high profile challenges to campaign finance and disclosure laws including, Citizens United, Wisconsin Right to Life v. FEC, RNC v. FEC, and Doe v. Reed.  

Former FEC Chairman Bradley Smith is the President of the Center for Competitive Politics which also reveals nothing regarding its sources of funding.  The Center regularly files amicus briefs in major challenges to existing campaign finance laws and initiated SpeechNow.org v. FEC and Ohio Right to Life v. Ohio Election Commission.

Until the Citizens United decision, the litigation offensive undertaken by these groups, political parties, and others, to some extent, remained under the radar.  This was because the cases were framed as narrow, seemingly technical legal challenges, and further, because the Roberts Court acted incrementally in undermining campaign finance laws in its first four years.

These groups pursued this litigation strategy for the simple reason that they were often challenging longstanding campaign finance laws that had already been upheld and declared constitutional.  Until Citizen United, anti-reform groups would not challenge the general constitutionality of a campaign finance law “on its face,” but instead would frame their cases as narrow challenges to the law “as applied” to specific situations. 

These kind of “as applied” challenges allowed the Roberts Court to significantly erode existing precedent without having to reverse such precedent explicitly. For instance, in its 2007 decision in Wisconsin Right to Life v. FEC, the Roberts Court effectively gutted several provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA) without explicitly striking down the Act which had been previously upheld by the Supreme Court in McConnell just three years earlier.

More recently, however, the conservative wing of Supreme Court has become more overt in its hostility to existing campaign finance laws.  Breaking with what Justice Scalia described as the “faux judicial restraint” that characterized its earlier decisions, the Supreme Court went out of its way to order reargument in the case Citizens United v. FEC for the purpose of overturning two past Supreme Court decisions that had upheld corporate spending restrictions.

This development makes clear that opponents of campaign finance reform – and their ideologically allies on the High Court – have far more ambitious goals than merely rolling back recent legal reforms instituted by BCRA.  Instead, their apparent goal is to go back nearly a century and dismantle many of the campaign finance reforms that have governed elections for decades, and to revert to the era of unregulated political spending that characterized the turn of the 20th Century.

It is clear that even disclosure laws – which conservatives have long championed as the only legitimate form of campaign finance reform – are under attack.

James Bopp, the attorney who initiated Citizens United and a longtime member of the RNC, for instance, has made no secret of the fact that his ultimate goal is the elimination of virtually all campaign finance restrictions including the reporting of donors.  In January, he told the New York Times that, “[g]roups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning.”

One disclosure case brought by Mr. Bopp – Doe v. Reed – was argued before the Supreme Court on April 28, 2010.  Doe v. Reed does not address contributors, but rather the disclosure of referenda petition signatories in connection to a Washington state ballot referendum regarding domestic partnerships.  But there are numerous cases that do seek to overturn contributor disclosure provisions in the lower courts.  One such challenge was brought by Mr. Bopp on behalf of the inaptly named “Committee for Truth in Politics.”  This group is simultaneously suing the FEC to avoid disclosing its donors while spending millions of dollars airing factually-unsupported attack ads against vulnerable candidates, for instance, calling the financial reform bill a “$4 trillion bailout for banks.”   

As a result of this large-scale anti-reform effort, the campaign finance arena has experienced one of its most active litigation periods.  In the past three years, the Campaign Legal Center, a nonpartisan Washington-based legal institute with particular expertise in issues of campaign finance law, lobbying regulation and government ethics, has represented a party or was active as an amicus in over twenty-five cases in both federal and state court, and monitored and consulted in several additional cases.

The litigation effort against decades’ worth of campaign finance laws are concentrated in five principal subject matter areas:

I.          Attacking Limits on Use of Corporate and Union Treasury Funds

II.        Undermining Meaningful Political Disclosure

III.       Going After the “Soft Money” Ban and Coordinated Spending Limits

IV.       Challenging Public Financing Programs

V.        Attempting to Deregulate “527 Group” Spending  

            *                      *                      *                      *                      *                      *

I. Attacks on Limits to Political Use of Corporate and Union Treasury Funds

Anti-reform groups have met with particular success in their effort to eviscerate the decades-old restrictions on the use of corporate and union treasury funds to influence federal elections.  These various restrictions were enacted over the course of the last century in response to a variety of abuses and scandals.  The last significant addition to these laws was Title II of BCRA which prohibited the use of corporate and union treasury funds to finance “electioneering communications,” i.e. advertisements referencing specific federal candidates that are broadcast shortly before an election.  This funding restriction was upheld in a “facial” or direct challenge to its constitutionality by the Supreme Court in the 2003 case, McConnell v. FEC.

In 2007, however, in Wisconsin Right to Life (WRTL) v. FEC, the Supreme Court, under the new Chief Justice, John Roberts, gutted BCRA’s electioneering communications funding restriction.  Essentially, the Supreme Court held that this restriction on corporate and union financing could be applied only to ads that “expressly advocate” for the election or defeat of a federal candidate or represent the “functional equivalent of express advocacy.” 

Encouraged by the WRTL decision, opponents of campaign finance laws quickly filed a second challenge to Title II of BCRA in Citizens United v. FEC.  The case began as an as-applied challenge to both BCRA’s electioneering communications funding restriction and its accompanying disclosure requirements in connection to Citizens United’s film, Hillary: The Movie, and its advertisements promoting the film.  In the course of litigation, however, Citizens United became exponentially broader in scope, and the Supreme Court ultimately considered whether any regulation of corporate spending was consistent with the First Amendment.

At this district court level, Citizens United’s argument was relatively narrow.  It argued that it should be permitted to finance Hillary: the Movie with corporate money because the film was not express advocacy or its functional equivalent as defined by WRTL.  It also argued that just as the WRTL decision limited the application of the electioneering communications funding restriction to express advocacy or its functional equivalent, so too should the Supreme Court limit the application of BCRA’s electioneering communications disclosure requirements to express advocacy or its functional equivalent.  In July 2008, a three-judge federal district court panel in Washington D.C. rejected these arguments and ruled that both BCRA’s funding requirements and its disclosure requirements are constitutional as applied to Hillary: The Movie.  The Legal Center and Democracy 21 filed a brief as amici curiae in the district court supporting the disclosure requirements in June 2008. 

Citizens United appealed to the Supreme Court, where, for the first time, it challenged not only BCRA’s electioneering communications provisions but also the validity of Austin v. Michigan State Chamber of Commerce, a key Supreme Court decision that in 1990 upheld restrictions on corporate spending in candidate elections. 

The Supreme Court heard oral argument in March 2009, but instead of deciding the narrow issue raised by the case – namely, the constitutionality of the BCRA electioneering communications provisions – it ordered reargument on the question of whether the Court should overrule its past decisions in Austin and McConnell

In January 2010, the Roberts Court abandoned its claimed commitment to judicial modesty and respect for precedent, and overruled Austin and part of McConnell.  This radical ruling had the effect of striking down the almost century-old federal corporate expenditure restriction, as well as analogous corporate restrictions in 24 states.   This decision may also fuel further legal challenges to the ban on corporate contributions to federal candidates and to the accompanying disclosure requirements applicable to corporate and union electoral activity.  

The Legal Center, together with a team of public interest groups, filed amici briefs on February 24, 2009 and July 31, 2009 to defend BCRA’s electioneering communications provisions and to support the continuing vitality of both Austin and McConnell.

II. Undermining Meaningful Political Disclosure

Beyond seeking to eliminate restrictions on contributions and expenditures, opponents of reform are seeking to eliminate meaningful disclosure as well.  To date, the Supreme Court has staunchly upheld disclosure requirements, but this has become a hotly-contested area of campaign finance litigation.  Essentially, opponents of campaign finance laws not only want to make unlimited contributions and expenditures, but they would like to do so anonymously.  As explained below, disclosure laws currently under attack include BCRA’s electioneering communication disclosure requirements and state laws modeled on BCRA’s disclosure requirements.  Campaign finance opponents have also filed suit against laws requiring disclosure in the related spheres of ballot measure advocacy and lobbying as well, with one ballot measure-related case, Doe v. Reed, now pending before the Supreme Court. 

Challenges to campaign finance disclosure multiplied in the wake of the Supreme Court’s 2007 decision in Wisconsin Right to Life v. FEC which gutted BCRA’s electioneering communications corporate and union funding restrictions without explicitly striking them down.

Campaign finance advocates received an unexpected boost in this area, however, by the Supreme Court’s recent decision in Citizen United.  There, the Court, in an 8-1 opinion, rejected the plaintiff’s challenge to the electioneering communication disclosure requirements in BCRA as applied to their ads promoting Hillary: the Movie even though such ads were not express advocacy or the functional equivalent of express advocacy.  In essence, the Court affirmed that disclosure is appropriate even in connection to political communications that do not expressly advocate the election or defeat of a candidate.

The Citizens United case would thus seem to foreclose the challenge brought to the BCRA disclosure requirements in Koerber v. FEC, a case filed in October 2008 in a North Carolina federal district court.  Plaintiffs there are challenging the federal electioneering communication disclosure provisions as applied to two television ads by the above mentioned “Committee for Truth in Politics” that meet the statutory definition of “electioneering communications,” yet according to plaintiffs, are not the functional equivalent of express advocacy.

On October 29, 2008, the district court denied their motion for a preliminary injunction, and plaintiffs appealed the decision to the Fourth Circuit Court of Appeals.  After the High Court issued its decision in Citizen United, however, plaintiffs voluntarily dismissed their appeal.  The case on the merits is still proceeding in the district court below, although the plaintiffs have amended their complaint in an attempt to address Citizens United.  The Legal Center and Democracy 21 have filed amici briefs with both the district court and the Fourth Circuit in the matter. 

Other lawsuits are challenging both substantive federal campaign finance restrictions and disclosure requirements.  For instance, the case SpeechNow.org v. FEC challenges not only the contribution limits applicable to independent expenditure committees, as discussed in Section V below, but also the comprehensive disclosure regime applicable to all federal political committees.  Similarly, The Real Truth About Obama v. FEC challenges a number of FEC regulations, see Section V, which determine when an independent group qualifies as a “political committee” and is subject to federal law, including federal disclosure requirements.

These federal campaign finance disclosure challenges also have their state counterparts.

In Ohio Right to Life (ORTL) v. Ohio Election Commission, for example, ORTL challenged multiple provisions of Ohio’s state campaign finance law, including Ohio’s state “electioneering communications” disclosure requirements.  Repeating the legal argument made in Citizens United, ORTL asserted that the Supreme Court’s WRTL decision renders the state electioneering communication disclosure law unconstitutional as applied to any communication which does not meet WRTL’s definition of express advocacy or its functional equivalent.  

In July 2008, the Legal Center filed an amici brief to defend the constitutionality of Ohio’s disclosure requirements.  In September 2008, the district court granted in part plaintiff’s motion for a preliminary injunction, but rejected ORTL’s request to enjoin Ohio’s electioneering communications disclosure law, relying in part on arguments presented in the Legal Center’s amici brief.  The case on the merits is still proceeding.

In addition to ORTL, challenges to state-level electioneering communications disclosure laws are also proceeding in Vermont and West Virginia.

Importantly, the anti-reform attacks on political disclosure requirements have also advanced far beyond the world of campaign finance.  Laws that seek to shine light on ballot measure advocacy and lobbying are also in the crosshairs. 

As discussed in the introduction, Mr. Bopp’s challenge to the disclosure of the names of ballot referenda petition signatories, Doe v. Reed, is currently pending before the Supreme Court.  He has also filed suit in California and Maine, seeking to strike down their laws that require committees financing ballot measure advocacy to disclose their donors.  A repeated argument in these cases is that the alleged harassment and reprisals suffered by such advocates – for instance, by proponents of anti-same-sex marriage referenda – justify the invalidation of ballot measure disclosure laws, or at least an as-applied exemption from such disclosure.  Reform advocates fear that if such arguments are successful, they will render ballot measure disclosure laws ineffective, and further, will be utilized in the campaign finance context to weaken disclosure laws in candidate elections as well.

Lobbying disclosure laws have also been targeted.  National Association of Manufacturers (NAM) v. Taylor was a lawsuit filed by NAM in federal district court in Washington D.C. to challenge the Honest Leadership and Open Government Act (HLOGA) enacted last Congress.  The challenged HLOGA provision requires a lobbying coalition, such as NAM, to disclose any member organizations of the coalition that fund the coalition’s lobbying activities and “actively participate” in such lobbying activities.  This provision aimed to repair a loophole in the pre-HLOGA disclosure law that had allowed special interest groups to evade lobbying disclosure by creating umbrella coalitions to conceal the real interests behind a lobbying effort.

In February 2008, the Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief with the district court in support of HLOGA.  The amici brief argued that federal lobbying disclosure laws have been on the books since the 1940’s, and were specifically declared constitutional in the Supreme Court’s 1954 decision in U.S. v. Harriss.  On April 11, 2008, the district court dismissed NAM’s complaint, finding that the HLOGA provision was narrowly tailored to serve the state’s compelling interests in promoting transparency and deterring corruption in government. 

NAM appealed the district court’s ruling to the D.C. Circuit Court of Appeals.  On September 8, 2009, a three-judge panel of the D.C. Circuit unanimously affirmed the constitutionality of the disclosure provision.  Analogizing lobbying disclosure to campaign finance disclosure, the panel declared that “transparency in government, no less than transparency in choosing our government, remains a vital national interest in a democracy.” The Legal Center, joined by Democracy 21 and Public Citizen, filed a brief with the Court of Appeals in June 2008. 

III.   Going After the “Soft Money” Ban and Coordinated Spending Limits

In this era of exploding campaign costs, the party committees are constantly seeking new avenues of revenue.  In the case of the Republican National Committee (RNC), it filed two separate suits just days after the November 2008 elections seeking to overturn key laws curbing unlimited “soft money” contributions to political parties and capping coordinated spending between party committees and candidates.  The RNC has not yet met with success in either case, but the proceedings are ongoing, and the RNC has vowed to appeal any rulings adverse to its interests.

The first lawsuit, RNC v. FEC, challenges the ban on “soft money” that was the signature accomplishment in the enactment of BCRA.  Plaintiffs challenge both provisions of Title I of BCRA that bar the national parties from raising or spending soft money, i.e. money not in compliance with federal contribution limits and source restrictions, and provisions that prohibit state parties from using soft money for activities that affect federal elections, such as voter registration or GOTV (get out the vote) drives.  Prior to these restrictions in BCRA, six- and seven-figure soft money checks provided the bulk of funding to party committees and were a popular tool for garnering or maintaining the attention of Congress in a high-stakes pay-to-play legislative environment. 

Because the soft money provisions were upheld in the Supreme Court’s 2003 decision in McConnell, the RNC plaintiffs billed the case as a challenge to the provisions only as applied to the funding of certain party activities.  However, the complaint listed nine such activities, including party spending on so-called “grassroots lobbying” or issue ads, and therefore the many exceptions sought would eviscerate the previously upheld soft money ban.

In March 2010, a three-judge district court in Washington D.C. ruled against the RNC plaintiffs.  The Court noted that the Supreme Court had upheld the soft money provisions only seven years ago in its 2003 decision in McConnell, and that the intervening Citizen United decision did not disturb McConnell’s holding.  The RNC has appealed the case to the Supreme Court.  A decision by the Roberts Court to hear the appeal will provide further evidence of the Court’s willingness to gut the nation’s campaign finance laws and to desert principles of stare decisis.

The Legal Center serves as co-counsel to the congressional sponsors of BCRA who are participating as amici curiae in the litigation: Senator McCain (R-AZ), Senator Feingold (D-WI), former Representative Marty Meehan (D-MA), and former Representative Christopher Shays (R-CT).

The second lawsuit brought by the RNC, Cao (RNC) v. FEC, in a district court in Louisiana, challenges the limits on coordinated spending between political parties and their candidates for federal office.  The coordinated spending limits were enacted in 1974 as part of the comprehensive post-Watergate reforms, and were specifically found to be constitutional in the Supreme Court’s 2001 decision in FEC v. Colorado Republican Federal Campaign Committee ( Colorado II).

Here again, because these limits were upheld in Colorado II, the RNC frames much of its case as a challenge to the limits “as applied” to certain types of party spending.  But its legal claims are presented in such a sweeping manner as to call into question the limits on any coordinated spending by any spender – party or non-party.  For instance, the RNC claims that coordinated spending for the party’s “own speech” cannot be constitutionally limited.  If accepted by the court, however, this argument would effectively require the invalidation of the coordinated party spending limits previously upheld by the Supreme Court in Colorado II.  Further, because the argument that coordinated expenditures for a spender’s “own speech” applies in principle to spending by a non-party as well as by a party, the RNC case has the potential to deregulate coordinated spending across the board.

In January 2010, the district court “certified” some of the claims brought by the plaintiffs to the Fifth Circuit Court of Appeals, where the case is now pending.  On April 19, 2009, the Legal Center filed an amici brief in support of the FEC, urging the Fifth Circuit to reject the RNC’s challenge.  Oral argument is scheduled for May 24, 2010.

IV. Challenges to Public Financing Programs

Challenges to public financing programs on the federal, state, and municipal level are hardly a new phenomena, but the number of suits has exploded in recent years.  A particular focus of the recent challenges is the so-called “trigger provisions” of such programs that provide candidates participating in the programs with additional public funds in the event of high spending by non-participating opponents or outside groups. 

In the same way challenges to BCRA were encouraged by the Supreme Court’s decision in WRTL, the challenges to public financing trigger provisions have been encouraged by another recent Roberts Court decision – namely Davis v. FEC (2008).  There, the Court struck down the so called “Millionaire’s Amendment,” a BCRA provision that allowed certain congressional candidates to accept up to six times the then-$2,300 federal contribution limit if they faced an opponent who spent a large amount of personal funds to finance his or her campaign.[2]  Opponents of public financing are using the decision to challenge state programs’ trigger provisions, claiming that trigger provisions are analogous to the Millionaire’s Amendment because they similarly provide benefits to certain candidates, namely publicly-financed candidates, if their opponents spend large amounts of money for their campaigns.  They argue that Davis flatly prohibits any statutory scheme that increases the financial resources available to one candidate based on the spending of his or her opponents. 

On November 3, 2008, the Supreme Court denied certiorari in Duke v. Leake, the first case to present the question of whether public financing trigger provisions are unconstitutional under the Davis precedent.  The denial of certiorari let stand the May 2008 decision of the Fourth Circuit Court of Appeals affirming the constitutionality of North Carolina’s public financing program for judicial elections, including the program’s “trigger provisions.”  The Legal Center had been active in the aforementioned litigation, filing an amici brief on behalf of itself and nine public interest organizations, successfully urging the Fourth Circuit to affirm the district court’s decision to dismiss the challenge to the public financing program. 

The Legal Center also served as co-counsel for the intervening defendants in Green Party of Connecticut v. Garfield, which challenges the constitutionality of Connecticut’s recently-enacted state public financing system.  Among other claims, plaintiffs have argued that the “trigger provisions” in Connecticut’s public financing law are constitutionally suspect in light of the Supreme Court’s Davis decision.  The district court, which initially had rejected plaintiffs’ challenge to the trigger provisions, upon reconsideration, struck down the provisions after the Davis decision.  Connecticut has appealed the decision to the Second Circuit Court of Appeals, where the case remains pending. 

The Legal Center is also active in the defense of several other state and municipal public financing programs around the country facing similar lawsuits.  The challenged programs include Arizona’s comprehensive state public financing system (Bennett v. McComish) and Wisconsin’s recently-enacted judicial public financing program (Wisconsin Right to Life PAC v. Brennan; Koschnick v. Doyle). 

V. Attempting to Deregulate “527 Group” Spending

Attempts are also being made to again unleash huge amounts of additional money within the campaign finance system by deregulating the so-called “527 groups” that have gained infamy since 2000 when “Swift Boating” entered the political lexicon.  At issue is the novel legal question of whether groups making only independent expenditures can constitutionally be regulated as federal “political committees” subject to the contribution limits and other restrictions of the federal campaign finance laws.  

The regulation of independent groups was first dealt a blow in September 2009 by the D.C. Circuit’s decision in EMILY’s List v. FEC.  The case was a challenge to the constitutionality of two FEC regulations: the “allocation” regulation, which governed how much federal hard money a federal political committee must use to fund its “mixed” or “generic” political activities; and the “solicitation” regulation, which defined a “contribution” to include funds raised in response to solicitations that indicate that the money will be used “to support or oppose” the election of federal candidates.

In a far-reaching decision, a split three-judge panel of D.C. Circuit invalidated both FEC regulations.  Further, in its holding, the panel questioned the constitutionality of the statutory contribution restrictions as applied to any funds used by political committees for independent expenditures – although this issue had not even been raised before the court.  

The Legal Center and Democracy 21 filed multiple amici briefs as counsel to congressional sponsors of BCRA and on their own behalf in the case.

The D.C. Circuit expanded upon the holding in EMILY’s List in its March 2010 decision in SpeechNow.org v. FEC.  There, the entire en banc Court of Appeals struck down the federal contribution limit as applied to SpeechNow.org, a political committee that makes only independent expenditures and does not accept corporate contributions.  At the same time, however, the Court upheld the political committee reporting and disclaimer requirements as applied to such “independent expenditure committees.”  The government has not yet indicated whether it will appeal the D.C. Circuit’s decision to the Supreme Court.

The challenge was originally filed in federal district court in Washington D.C. in February 2008.  SpeechNow.org requested a preliminary injunction, arguing that because it makes only independent expenditures, the state interest in preventing actual and apparent corruption did not justify its regulation as a political committee.  On July 1, 2008, the district court denied plaintiffs’ motion for a preliminary injunction, and SpeechNow.org appealed the decision to the D.C. Circuit Court of Appeals.  Pursuant to a special provision in the federal election laws, the matter was considered by the entire en banc Court of Appeal.  The Legal Center, along with Democracy 21, filed two amici briefs with the Court of Appeals.  

The SpeechNow.org decision and the EMILY’s List decision, read together, will deregulate independent groups in federal elections, and have the potential to facilitate a return to the massive soft money spending by 527 groups seen in prior elections.  It is important to note, however, that these decisions do not reach the question of whether, post- Citizen United, corporations can contribute directly to “independent expenditure committees.”  Both SpeechNow.org and EMILY’s List chose not to challenge the restrictions on corporate contributions to federal political committees.  Federal campaign finance law still prohibits such contributions.  Further, these two decisions do not rule out the regulation of those political committees that make both independent expenditures and contributions to candidates and political parties.  The Supreme Court, in its earlier decision in California Medical Association v. FEC (1981), squarely addressed this issue and held that a political committee that makes contributions to candidates must abide by the federal contribution limits, even if some of its spending is independent or covers only administrative expenses. 

Another recent case challenging the regulation of independent groups is The Real Truth About Obama, Inc. (RTAO) v. FEC.  Although this challenge was rejected by the Fourth Circuit Court of Appeals, the Supreme Court recently vacated the Fourth Circuit’s decision and remanded the case for further consideration in light of Citizens United.

RTAO, a 527 organization, filed suit in July 2008, requesting a preliminary and permanent injunction enjoining enforcement of several FEC regulations.  Among numerous claims, RTAO argued that the FEC’s definition of “express advocacy” is unconstitutionally vague and overbroad, as is the FEC’s definition of “contribution.” Both of these rules are crucial to the FEC’s analysis of whether an independent group qualifies as a “political committee” subject to the applicable requirements under federal campaign finance law.  RTAO also challenged the FEC’s rule implementing the Supreme Court’s 2007 WRTL decision.

On September 11, 2008, the district court rejected RTAO’s motion for a preliminary injunction, and RTAO appealed the district court’s decision to the Fourth Circuit Court of Appeals.  On August 5, 2009, the Fourth Circuit Court of Appeals affirmed the denial of a preliminary injunction, thus letting stand the FEC rules that regulate when independent groups must register as federal political committees.  The Legal Center, along with Democracy 21, filed amici briefs with both the district court and the Fourth Circuit to defend the challenged FEC regulations. 

In April 2010, the Supreme Court vacated the decision.  In light of Citizens United, it is clear that some of the challenged regulations, such as the WRTL–related rule, have been mooted.  The Legal Center has warned, however, that the Supreme Court’s action should not be read by the Fourth Circuit as an invitation to weaken the remaining FEC regulations under challenge that were not affected by Citizens United

The Legal Center’s litigation efforts in this subject area also include the defense of municipal laws limiting contributions to committees making only independent expenditures.  The Legal Center participated as an amicus and as a consultant to the state defendant in both a federal court challenge to the constitutionality of San Jose’s limit on contributions to independent expenditure committees, San Jose Silicon Valley Chamber of Commerce Political Action Committee (COMPAC) v. City of San Jose, and a federal court challenge to San Francisco’s municipal contribution limit, Committee on JOBS v. Herrera

Most recently, the Legal Center filed an amici brief on April 9, 2010 with the Ninth Circuit Court of Appeals in Thalheimer v. City of San Diego, urging the Court to uphold San Diego’s municipal limit on contributions to independent expenditure committees.   

Conclusion

The ultimate goal of this multi-pronged attack on campaign finance law is to turn back the clock nearly a century and allow untraceable and unlimited contributions from and expenditures by those seeking favors from elected officials.  Opponents of campaign finance laws believe they have a sympathetic Supreme Court that will allow them to ignore many decades’ worth of High Court precedent, as well as public outrage and scandals running from “ Teapot Dome” to Watergate. 

To date, beyond the controversial and highly unpopular Citizens United decision, much of this well-orchestrated attack on campaign finance laws has escaped the notice of the press and the American people.  At stake are not only millions of what could become “invisible dollars” spent on political campaigns but more importantly, the ability to use money to influence – if not determine – who controls the reins of power in this nation.



[1] The DISCLOSE Act (Democracy Is Strengthened by Casting Light on Spending in Elections) was introduced in the House (H.R. 5175) on April 29, 2010 and in the Senate (S. 3295) on April 30, 2010. 

[2] In March 2008, the Legal Center and other public interest groups filed an amici brief with the Supreme Court in the Davis case to support the constitutionality of the Millionaire’s Amendment. 

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