FEC withholding public documents on own closed enforcement actions

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From: Campaign Legal Center

Why Is the FEC Withholding Documents From the Public in Violation of Its Own Regulations and Policy Statement?

Posted May 29, 2009 by Paul S. Ryan
Picture: President Obama signs Executive Orders for open government.


Yesterday, the CLC sent two letters to the FEC concerning the Commission’s refusal to disclose documents pertaining to closed enforcement actions—documents that the FEC’s regulations and “Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files” require the Commission to make public. Not only does the Commission’s withholding of these documents violate its own regulations and written policy, but also flies in the face of a commitment issued by President Obama on his first day in office to an “unprecedented level of openness in Government.”

The first letter to the Commission was a formal appeal of a decision by the FEC Freedom of Information Act (FOIA) Service Center denying a CLC FOIA request for a General Counsel’s Report and the Factual and Legal Analyses written by the Commission Office of General Counsel in an connection with a complaint filed against the Romney for President Committee and one of his supporters, Kem Gardner (MUR 5937). The complaint alleged that Gardner made an illegal in-kind contribution—and that the Romney Committee accepted an illegal in-kind contribution—when Gardner paid $150,000 to charter an airplane and flew 150 people from Utah to Boston to “dial for dollars” at a Romney fundraising event. The Commission deadlocked 3-3 on whether to find reason to believe that federal law was broken and to commence an investigation, so the Commission closed the file in the matter. The Commission never made public the General Counsel’s Report or the Factual and Legal Analyses and explicitly rejected the CLC’s FOIA request for these documents.

The second letter was sent jointly by the CLC and Democracy 21, noting that in recent months, and with unprecedented frequency, the Commission has been closing enforcement actions after failing by a vote of 3-3 to pass motions related to such actions and has failed to make public General Counsel’s Reports and Factual and Legal Analyses with respect to many of these closed enforcement actions. We requested that the Commission make public all General Counsel’s Reports and Factual and Legal Analyses in closed enforcement actions.

This second, more general letter was prompted by the denial of our March FOIA request in the Romney matter. The CLC has five more similar FOIA requests pending at the FEC and the denial of our request in the Romney matter gives us little hope that the outcome will be different in our other pending requests. The six FOIA requests filed by the CLC this year pertain to only a fraction of the closed enforcement actions in which General Counsels Reports and Factual and Legal Analyses have been withheld from the public by the Commission. And, given that the Commission’s regulations and Statement of Policy require that these documents be made public, FOIA requests should not even be necessary to obtain these documents. For these reasons, we decided to make a more general appeal to the Commission with respect to the disclosure of these documents in all closed enforcement actions.

In denying our FOIA request in the Romney matter, the FOIA Service Center determined that “the agency is precluded from providing this information as it deals with predecisional documents that are covered under the deliberative process privilege under FOIA Exemption 5," citing 5 U.S.C. § 552(b)(5) for its position.

For the reasons detailed in our two letters to the Commission, the FOIA Service Center’s determination was erroneous with respect to the Romney matter and, to the extent this is the rationale being relied upon by the Commission to withhold documents in the other closed enforcement actions, it is similarly erroneous.

Our letters cite Supreme Court and D.C. Circuit Court precedent making clear that FOIA Exemption 5 is not mandatory. It does not preclude the Commission from providing General Counsel’s Reports and FLAs to the public but, instead, provides federal agencies with the option of asserting a privilege and withholding “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Even if this exemption is available under FOIA, the Commission is free as a matter of law and policy to publicly disclose General Counsel’s Reports and Factual and Legal Analyses.

Indeed, as our letters further explain, the Commission has adopted regulations and a policy statement that require the Commission to disclose General Counsel’s Reports and Factual and Legal Analyses. This is therefore not a discretionary matter—the Commission and its staff must follow the Commission’s own regulations and policy until they are changed. The Commission’s regulations state that:

[T]he Commission shall make the following materials available for public inspection and copying: . . . Opinions of Commissioners rendered in enforcement cases, General Counsel’s Reports and non-exempt 2 U.S.C. 437g investigatory materials shall be placed on the public record of the Agency no later than 30 days from the date on which all respondents are notified that the Commission has voted to close such an enforcement file[.]

11 C.F.R. § 4.4(a) (emphasis added). Further, the Commission’s “Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files” clearly states:

With respect to enforcement matters, the Commission will place the following categories of documents on the public record:

. . . .

3. General Counsel’s Reports that recommend dismissal, reason to believe, no reason to believe, no action at this time, probable cause to believe, no probable cause to believe, no further action, or acceptance of a conciliation agreement;

4. Notification of reason to believe findings (including Factual and Legal Analysis);

. . . .

The Commission is placing the foregoing categories of documents on the public record in all matters it closes on or after January 1, 2004.

68 Fed. Reg. at 70427 (emphasis added).

If the Commission would like to withhold General Counsel’s Reports and Factual and Legal Analyses under FOIA Exemption 5, it must open a rulemaking with notice and comment to change the existing regulations, and follow its procedures for amending or withdrawing the policy statement which currently governs this issue. Until then, the Commission’s existing rules and policies require such documents to be disclosed.


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Many hard-earned reforms to the nation’s campaign finance laws are in danger of being dismantled

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From: Campaign Legal Center

Decades of Campaign Finance Law Under Siege

Posted May 7, 2009 by Tara Malloy and J. Gerald Hebert

Many decades of hard-earned reforms to the nation’s campaign finance laws are in danger of being dismantled by a litigation offensive mounted by interests opposed to those reforms.

Emboldened by the conservative majority in the U.S. Supreme Court, ideological and interest group opponents of campaign finance regulation have brought an unprecedented number of cases in the past year to challenge campaign finance laws at the federal, state and municipal levels. The challenges are being brought by national party committees, trade associations, ideological groups and so-called “527” organizations. These opponents are often represented by attorneys working for tax-exempt organizations whose public filings reveal little about their funding sources and whose primary mission is to overturn existing campaign finance laws.

What is most striking about these groups’ litigation effort is that it challenges longstanding campaign finance laws that have already been upheld and declared constitutional. For this reason, their challenges often fail in the lower courts as these courts simply uphold preexisting Supreme Court precedent that is supportive of campaign finance regulation. The problem is that under Chief Justice John Roberts, the Supreme Court is quickly undermining that very precedent.

The Roberts Court, however, is not overturning earlier Supreme Court rulings openly. In their current offensive, anti-reform groups rarely challenge the general constitutionality of campaign finance law “on its face,” but instead frame their cases as challenges to the law “as applied” to specific situations. These kind of “as applied” challenges have given the Roberts Court the opportunity to significantly erode existing precedent without having to reverse such precedent explicitly. Effectively, however, the Roberts Court has begun to overturn a variety of campaign laws previously upheld by the High Court.

At the federal level, recent challenges are attempting to tear down many decades’ worth of election law, including the principles behind restrictions on corporations that extend as far back as the Tillman Act of 1907. That Act banned political contributions by corporations and was shepherded through Congress by President Teddy Roosevelt in an era when corporations wielded staggering power in Washington as the main sources of funding for political parties. Challenges to other long-standing provisions of the election laws, such as coordinated party spending limits, demonstrate that the mission of anti-reform advocates is far more ambitious than merely rolling back the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as McCain-Feingold. Instead, their apparent goal is to go back nearly a century and dismantle many of the campaign finance reforms enacted in the wake of the Watergate era scandals and to revert to an era of unregulated, undisclosed spending in federal elections that fueled public outrage at the turn of the 20th Century.

This federal litigation offensive is being replicated at the state level. During the past two years, opponents of campaign finance regulation have challenged state or municipal campaign finance laws in Arizona, California, Connecticut, New York, North Carolina, Ohio, Utah, Washington and West Virginia, to name just a few jurisdictions.

As a result of this redoubled anti-reform effort, the campaign finance arena has experienced one of its most active litigation periods. In the past year, 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 cases in both federal and state court, and monitored and consulted in several additional cases.

The litigation efforts 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. Going After the “Soft Money” Ban and Coordinated Spending Limits
III. Challenging Public Financing Programs
IV. Attempting to Deregulate “527 Group” Spending
V. Undermining Meaningful Political Disclosure

[...]


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Obama White House considers engagement in US Census surveys

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From: Campaign Legal Center

Feb 19, 2009 -- The Hill's Congress Blog

With Sen. Judd Gregg (R-N.H.) withdrawing last week as Commerce secretary nominee, citing the Obama administration's plans to have census officials report to the White House, The Hill's Jim Mills recently interviewed Campaign Legal Center Policy Director Meredith McGehee about the census issue. See a partial transcript of the interview below.

Jim Mills : What's their rationale...why are they doing what they're doing?

Meredith McGehee : I don't think they've come up with an adequate rationale, to be honest, and when you have someone in that office -- this is where the appearance matters -- Rahm Emanuel, White House chief of staff, was indeed the chief Democratic partisan for elections here for a number of Congresses. So there's at minimum here an appearance problem.

Meredith McGehee : This is a process that should be handled with professionals. It should be at the Commerce Department, it should be adequately funded. It should be, as they say in other policies, when they talk about greenhouse gases, it should be scientifically based, and I don't think you're going to get that if you have it politicized in the White House.

Meredith McGehee : Obviously, you want the most complete census you have. If there are new ways of ensuring that the census reflects the actual population, and there's been talk about sampling and other tools, those should be examined. That decision should be made, not by someone sitting in the White House -- that should be made at the Commerce Department, and with an enormous amount of input from the professionals.

[This article does not accept public comments]


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• White House Intends to Circumvent Gregg on Census (politicalwire.com)

Act on your legal rights as voters with the Voting Rights Enforcement Project

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From: Campaign Legal Center

Voting Rights Enforcement Project Goes Live

Oct 9, 2008

With new reports of vote suppression efforts springing up almost daily, the Campaign Legal Center launched the Voting Rights Enforcement Project (VREP). Generic drafts of potential court filings for individuals, organizations and political parties who must resort to the courts to protect the fundamental rights of citizens to vote are now available . Various voting rights organizations, including the American Bar Association, DEMOS, the Election Protection coalition, and The Lawyers' Committee for Civil Rights Under Law are publicizing and linking to the VREP site and so that the filings can be utilized on Election Day and in the month preceding.

"A troubling pattern of vote suppression efforts has already emerged nationwide, particularly in battleground states and the election itself has the potential to become a train wreck as far as voters and democracy are concerned," said Campaign Legal Center Executive Director J. Gerald Hebert. "Even without efforts to suppress the vote, just the volume of new voter turnout may overwhelm the system and require court filings to protect voters."

The filings include those to extend polling hours when necessary, prevent voter intimidation efforts, violations of the Voting Rights Act, failures to provide bilingual voting materials or assistance and to address non- or late delivery of absentee ballots to qualified voters.

"Voters across the country are likely to face ballot shortages, faulty equipment, voter disqualification schemes, and other obstacles which may violate federal and state election laws," said Hebert. "The legal documents provided by the Voting Rights Enforcement Project will facilitate and expedite the process of securing court orders against those state or local election officials or others who take actions harmful to the electorate, be they deliberate or accidental."

Massive failures have been documented in recent elections and continued through this year's primaries. Thousands of Americans were disenfranchised as a result. The legal templates are designed to alleviate these problems by allowing voters or groups to go to court seeking an order to compel the extension of polling hours, reallocation of voting machines or the provision of adequate paper ballots at the polls.

Previously, information on the project was provided to national, state, and local party committees, as well as third party organizations and numerous community and grassroots organizations from coast to coast.

The Voting Rights Enforcement Project legal template documents are accessible on the Campaign Legal Center's website (www.campaignlegalcenter.org) and continue to be distributed via email to persons and groups across the country upon request. Additional generic legal documents will be added to the site between now and Election Day. The Legal Center's work on this project is a direct result of the generous financial assistance from the JEHT Foundation.

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Four reforms for stronger, more competitive democracy

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From: Campaign Legal Center

Our Democracy Is Stronger With More Competition

Posted October 9, 2008 by Meredith McGehee
The following opinion piece was published in Roll Call today.

We are just days away from the end of one of the most exciting presidential races in a generation. It is the first open-seat race in more than 50 years, one with no presidential or vice presidential incumbent running, and one where the primaries mattered long past Super Tuesday. There is an unsettling sense of mystery, anxiety and urgency running across America.

This race is like a roller coaster, making us want to scream at the top of our lungs, yet thrilling us at the same time. At times, many of us, particularly in battleground states, have wanted it to end, but will we be sad when it’s over? Could the American people really take it if elections were always like this?

What is causing this nerve-wracking exhaustion — this fear, this rush?

It is something so rare in American politics that we may not even recognize it. It’s called competition. Real, adrenaline-charged competition. Don’t-know-the- outcome competition. Power-up-for-grabs competition. And it’s kinda fun for a change.

But why is real political competition so scarce in a democracy? How did competition — which is supposed to be the American way — become the exception and not the rule? Competition is supposed to be our democratic system’s way of holding our elected representatives accountable. Where did we go wrong and what can we do about it?

Instead of the usual 90 percent- plus re-election rate for incumbents, can we imagine actually having a sense of competition for Congressional races? Can we imagine, instead of the ever-growing spectacle of money grubbing, a competition of ideas? An incumbent’s biggest worry these days is often from the fringes of his or her own party in the primary election. The result has been increased polarization on Capitol Hill, where the aisle dividing Democrats from Republicans has become a veritable no man’s land to be crossed at one’s political peril.

It should not be this way, and our democracy is weaker because of it. Competition must be and can be re-injected into American politics without running afoul of the Constitution. The Supreme Court, at least to date, has rejected the notion that increasing competition is a constitutionally insufficient grounds for upholding some proposed reforms. But there are means by which we can rescue our system from the scorched-earth partisanship prevailing today without running afoul of the high court:

Update the presidential public financing system. Don’t let the 2008 presidential election fool you into believing the next elections will be as hard-fought and as unpredictable as this one. This open-seat race is indeed unique. The odds of non-incumbent challengers being able to raise sufficient funds to run a competitive race against an incumbent president or vice president are getting longer. And the bigger the budget, the more candidates end up beholden to their large contributors and especially their large bundlers. Election to the most powerful political office in the world should be determined by an individual’s character and ideas, not by an ability to raise the most money and thus become the most indebted to donors.

Implement redistricting reforms at the state and federal levels. Politicians should not be allowed to choose their voters instead of voters choosing their politicians. But that is the system we have for most state and federal races. Competitive races are the exception and not the rule. Even in the political perfect storm of the 2006 cycle, a mere 14 percent of House elections were decided by 10 points or less. Challenges are more likely to come from the fringes of one’s own party than from the other party, only feeding the polarization on Capitol Hill. Promoting reforms like independent redistricting commissions and increased transparency of the process are vital to easing the gridlock. But two bills to address the issue, introduced more than a year ago, can’t even get subcommittee hearings.

Use the publicly owned broadcast airwaves to promote political discourse. Most Americans don’t even realize that the airwaves used by television broadcasters are public property and that these broadcasters are given licenses for free to use those airwaves. Over the past 20-plus years, policy makers in Congress and at the Federal Communications Commission have allowed the broadcasting industry to decide for themselves how to fulfill their public-interest obligations and “pay” the American people for the airwaves they are using to make billions of dollars. We need to create a system that allows viable candidates to earn access to the publicly owned broadcast airwaves so they can communicate with voters without undue dependence on big contributors.

Enact a new system of financing Congressional races. Even in the 2006 elections, which saw both chambers change hands, not even two dozen House incumbents were defeated in the general election and not a single one of them was a Democrat. Some districts have become so safe that even scandals and indictments cannot dislodge the incumbents. We need a system that at its core prevents corruption and the appearance of corruption, and that will also foster increased competition in order to increase accountability. A model that includes a mix of private and public money with voluntary participation is a good place to start.

Of course, passing any significant change to make Congressional elections more competitive will face a barrier even steeper than the Supreme Court: overcoming the resistance of the incumbents who like the current system and their own safe seat just fine.

But the stubborn resistance to change inside the Beltway should not be the death knell for reforms. American voters are getting a taste of competition in this election, and all indications are that we like the feeling that we have choices and that our voices matter. It is not too much to ask in a democracy that competition be the rule and not the exception.

Meredith McGehee is policy director of the Campaign Legal Center and also heads McGehee Strategies, a public-interest consulting business.


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Voters' Rights Protection Project is for election day voting troubles

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From: Campaign Legal Center

Election Day Voter Protection Initiative Launched
Aug 13, 2008

The Campaign Legal Center today launched the Voters' Rights Protection Project, to provide generic drafts of potential court filings to individuals, organizations, and political parties who must resort to the courts to protect the fundamental rights of citizens to vote. In a letter today to both major parties and copies to the respective presidential campaigns, the Legal Center announced the project and said it would make the legal templates publicly available. Information announcing the project is also being sent to national, state, and local party committees, as well as third party organizations and numerous community and grassroots organizations from coast to coast.

"The legal documents being drafted by the Legal Center will facilitate and expedite the process of securing court orders against those state or local election officials or others who take actions harmful to the electorate," said J. Gerald Hebert, Executive Director and Director of Litigation for the Campaign Legal Center

The use of such legal templates, will allow individuals, as well as advocacy groups, political parties, and candidates to obtain pre-election or Election Day relief for a host of problems, including extension of polling hours, insufficient ballots, and prevention of voter harassment or intimidation.

[...] The legal template documents will be accessible on the Legal Center's website next month, and they will also be distributed via email to persons and groups across the country upon request. The Legal Center's work on this project is a direct result of the generous financial assistance from the JEHT Foundation.

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ABA passes resolution supporting redistricting reform

The recognition of the need for a more fair redistricting process has created a groundswell among organizations across the political spectrum and has led to the creation of Americans for Redistricting Reform - an initiative of the Campaign Legal Center scheduled to launch later this year.

The ABA (American Bar Association) passed a resolution at its midyear meeting urging states to utilize independent commissions for redistricting in order to remove the process from politically self-interested state legislators and incumbents.

In his role as a member of the ABA’s Administrative Law Section, Campaign Legal Center's J. Gerald Hebert helped draft the resolution that was approved. Hebert stressed in his statement that redistricting decisions are too often made for purely partisan purposes and ultimately it is the voters of both parties who suffer. “Democrats and Republicans alike have gained and lost seats unfairly through the heavy-handed tactics of state legislatures that gerrymander districts such that the electoral outcome is foreordained,” Hebert emphasized. The result has been the elimination of competitive districts and with it the elimination of more moderate representatives who are more likely to be attentive to a broader community.

Americans for Redistricting Reform to launch project in early 2008

Redistricting reform is a hot topic these days, because of some controversial redistricting in states in recent years. I believe such an important task of government, which happens after each 10-year U.S. Census, is too politicized and is susceptible to power plays by the majority party. In this week's news review, the Campaign Legal Center covers the latest reform activity for redistricting:

On November 29, the Campaign Legal Center, along with the League of Women
Voters and the Council for Excellence in Government, announced that Pam Pryor
had been selected as project director of Americans for Redistricting Reform. The
project Ms. Pryor will lead is slated to launch officially in early 2008 and has
been guided by a broad coalition of organizations. With initial funding provided
by the Rockefeller Brothers Fund, the new initiative's goal is to build public
support and be a resource for state-level redistricting reform efforts
throughout the country.