Former Election Officials File Amicus Brief in Supreme Court Challenging Citizens United Decision and Calling on Court to Reconsider its Position
Former federal, state and local election officials filed an amicus brief in the Supreme Court on Friday, May 17, 2012 challenging the Supreme Court’s 2010 decision in Citizens United v. FEC and calling on the Court to reconsider its position in the case. The brief was filed in American Tradition Partnership v. Bullock in support of a ruling by the Supreme Court of Montana that upheld a state law banning corporate expenditures in Montana state elections.
The election officials filing the amicus brief include two former Chairmen of the FEC, Trevor Potter, who also served as legal counsel to three Republican Presidential campaigns, and Frank Reiche, who also served as Chairman of the New Jersey Election Law Enforcement Commission; two former FEC General Counsels, Larry Noble and Charles Steele; former Director and General Counsel of the Connecticut Elections Enforcement Commission, Jeffrey Garland; former Executive Director of the New York City Campaign Finance Board, Nicole Gordon; and former General Counsel of the California Fair Political Practices Commission, Robert Stern.
Amici are represented in this case by the Democracy 21 legal team. Former U.S. Solictor General Seth Waxman, a senior partner at the WilmerHale law firm, and Scott Nelson of the Public Citizen Litigation Group took the lead for the legal team in preparing the brief. Attorneys from WilmerHale and from Democracy 21 also participated in the preparation of the amicus brief.
According to Fred Wertheimer, president of Democracy 21 and one of the attorneys representing the amici:
The Citizens United decision has changed the landscape of American politics and wreaked havoc on our political system. The Citizens United decision fundamentally undermined our democracy and is taking the nation back to the system of “legalized bribery” that existed in the Robber Baron and Watergate eras. Massive amounts of unlimited, influence-seeking contributions and secret funds have returned to federal elections as a result of the Citizen United decision. History tells us that this is the kind of political money that invariably leads to government corruption and scandal.
The Bullock case provides an opportunity to begin to educate the Supreme Court majority that decided Citizens United about the extraordinary damage these five Justices have done to our democracy and to our political system and to start the legal fight to reverse a decision that will not stand the test of time.
Excerpts from the Amicus Brief
On December 30, 2011, the Supreme Court of Montana issued a decision upholding a state law that bans corporate expenditures in state elections. Based on an examination of the role played by corporate spending in Montana’s history, the Montana Court held that the state law serves a compelling governmental interest in deterring corruption, notwithstanding the U.S. Supreme Court’s ruling in Citizens United that struck down a federal ban on corporate expenditures.
The corporate plaintiffs in the case filed a petition for certiorari with the U.S. Supreme Court, asking the Court to summarily reverse the Montana decision without full briefing and argument.
The amicus brief submitted by the former election officials asks the Court to deny the petition for certiorari and thereby leave in place the ruling of the Montana Supreme Court. Alternatively, the amicus brief urges the Supreme Court to set the case for full briefing and argument next fall if it does decide to review the decision of the Montana Court.
In the brief, amici argue that a basic flaw in the Citizens United decision is its assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
The brief notes that Citizens United relies on a statement made in Buckley v. Valeo that “the absence of prearrangement and coordination of expenditures” serves to “alleviate the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”
The brief argues, however, that Citizens United incorrectly read what the Court said in Buckley:
In making these assertions, Citizens United repeatedly invoked Buckley. But Buckley was considerably more cautious and equivocal than Citizens United appears to suggest. Buckley struck down an expenditure limitation for failing to advance the substantial governmental interest in checking corruption. But it began by stressing the underinclusiveness of the law, which (as construed) allowed unlimited expenditures “to promote [a] candidate and his views” as long as the spender avoided express advocacy. Buckley, 424 U.S. at 45. The law thus “permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office.” Id. The Court’s underinclusiveness rationale presupposed that independent spending could have a corrupting effect.
The Court went on to say that it was not yet persuaded that independent expenditures posed the same threat of corruption as contributions to a candidate. The Court stated that “independent advocacy … does not presentlyappear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.” Buckley, 424 U.S. at 46 (emphasis added). Assuming that independent expenditures were necessarily made “totally independently of the candidate and his campaign,” the Court stated that “[u]nlike contributions, such independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive.” Id. at 47 (emphases added). These carefully qualified statements preceded the observation, quoted in Citizens United, that the absence of prearrangement and coordination “alleviate[d]” the threat of corruption. Id. Nowhere did Buckley conclude that independent spending must be deemed non-corrupting in all circumstances, regardless of empirical experience to the contrary.
The brief further notes that Citizens United has been read broadly by the lower courts to invalidate limits on contributions to groups which make independent expenditures:
On the federal level, a broad reading of Citizens United has already led to effective negation of limits on fundraising by outside groups. The resulting fundraising and spending have compellingly demonstrated that Citizens United’s premise is wrong: Even expenditures that satisfy legal standards for “independence” can pose direct threats of corruption and apparent corruption.
The brief points out that this has led to the rise of Super PACs, which raise and spend unlimited contributions to influence federal elections, and also to direct spending of undisclosed money on candidate advocacy by nonprofit corporations, such as groups organized under section 501(c)(4) of the tax code. The brief states:
Citizens United’s statements that independent expenditures pose no corruption threat have thus created two new engines for deploying vast sums for direct candidate advocacy: Super PACs, which devote themselves exclusively to backing candidates and accept the consequence of disclosing contributors; and tax-exempt nonprofit corporations, which maintain the semblance of a primary purpose other than electioneering, but may raise and spend unlimited amounts on candidate advocacy without disclosing their funders. Both allow corporations, unions, and individuals to make contributions to organizations committed to support candidates without regard to limits on amounts and sources of contributions that may be made directly to the candidates.
These two types of organizations may also work in tandem: Affiliated nonprofits and Super PACs allow donors the choice of contributing with or without disclosure. In such circumstances, the nonprofit may pass along funds to the Super PAC, with only the nonprofit reported as the contributor.
The brief notes that the Court’s premise in Citizens United that outside spending groups operate independently of candidates is belied by weak and ineffective FEC regulations governing “coordination”:
These coordination regulations, however, are not interpreted by the FEC to preclude involvement of the candidate’s close associates, friends, and family in founding or directing an independent-expenditure organization. Nor do they embrace communications developed by sophisticated political operatives consciously to parallel those of the candidate. The coordination rules do not themselves bar a Super PAC from devoting itself exclusively to supporting a particular candidate or from representing to donors that it is “the” Super PAC for that candidate. Nor, according to the FEC, is there anything improper about a candidate or his agents endorsing the efforts of a Super PAC or nonprofit that supports his candidacy, or even directly asking supporters to contribute to the supposedly independent entity: The FEC has ruled that candidates may attend fundraisers for Super PACs and explicitly solicit contributions for them, as long as they say they are asking only for amounts within FECA’s contribution limits.
In short, Citizens United created conditions under which candidates may be closely aligned with shadow campaign organizations promoting their election but thinly disguised as “independent” spending groups. These organizations may be endorsed and aided by candidates, and the unlimited corporate, union, and individual contributions they obtain may be perceived as the equivalent of contributions to the candidates themselves.
According to the brief, the effects of Citizens United demonstrate that independent spending has the potential to corrupt candidates and officeholders:
The forces Citizens United unleashed have transformed the financing of American elections. That transformation has demonstrated the fallacy of Citizens United’s assumption that independent expenditures cannot corrupt. By fostering explosive growth of organizations that are closely connected to candidates and political parties and that collect and spend unlimited amounts to support specific candidates, Citizens United has altered the relation between “outside” spenders and candidates. The result has been increasing dependence by candidates on extremely large donations to Super PACs and nonprofits, with attendant risks of corruption equivalent to those posed by contributions to the candidates themselves.
The brief highlights the development of candidate-specific Super PACs as vehicles for corruption:
Simultaneously, outside spending groups have evolved in ways that make ever more apparent their potential to foster corruption. The key development has been the rise of candidate-specific Super PACs, which devote themselves almost exclusively to promoting particular candidates through expenditures that, they claim, are “independent” enough to avoid demonstrable coordination.
Many candidate-specific Super PACs have been formed by individuals closely associated with presidential candidates. Restore Our Future, the Super PAC backing Mitt Romney, was founded by a trio of former staffers from Romney’s 2008 campaign. Make Us Great Again PAC, backing Rick Perry, was founded by Perry’s former chief of staff. Newt Gingrich’s Super PAC, Winning Our Future, was formed by Gingrich’s longtime fundraiser. And two Obama aides went directly from White House positions to form the Super PAC supporting the President’s reelection, Priorities USA Action, and its affiliated nonprofit group, Priorities USA. These “independent” entities can—and do—host their favored candidates at fundraising events and can receive funding from donors requested by those candidates to contribute to the Super PACs.
The brief takes note of the close association that candidates have with the Super PAC dedicated to supporting their campaign:
The candidates have encouraged these contributions and made clear that they regard the resulting influx of big dollars into supportive groups to be the functional equivalent of contributions to their campaigns. Mitt Romney, for example, stated: “We raise money for super PACs. We encourage super PACs. Each candidate has done that.” Romney personally participated in fundraising for Restore Our Future and described a contributor to his Super PAC as having given “to me.” Rick Santorum similarly referred to the Super PAC supporting him as “my super PAC.”
According to the brief, the relationship between candidates and their Super PACs gives rise to the potential for corruption in a manner not anticipated by the Supreme Court majority when it issued its decision in Citizens United:
Nor do the facts support the supposition that the “‘absence of prearrangement’” of outside spending will obviate possible corruption. Citizens United, 130 S. Ct. at 908 (quoting Buckley, 424 U.S. at 47). Although coordination rules forbid prearrangement of particular expenditures, there are ample opportunities for quid pro quo arrangements when contributors seeking to support a candidate in return for preferential treatment can be steered to give unlimited sums to organizations committed to support the candidate. The potential for illicit quid pro quo arrangements, or their appearance, is much greater when millions of dollars are at stake than when a contributor merely wants to give a few thousand dollars directly to a campaign. The free-for-all created by Citizens United threatens circumvention on a massive scale of contribution limits, the fundamental anti-corruption measure that this Court has consistently upheld.
The direct consequences of Citizens United have thus undermined its premise that independent expenditures cannot corrupt candidates.
The brief concludes by asking the Court to allow the Montana decision upholding the state corporate expenditure ban to stand or, in the alternative, to set the case for full briefing and argument in order to reconsider Citizens United:
Denying certiorari would send a welcome message that Citizens United should not be read overbroadly. In the alternative, amici urge the Court to grant plenary review in which those broad statements, and other critical premises of Citizens United, may be reconsidered. The Court should deny the petition for a writ of certiorari or reject petitioners’ request for summary reversal and set the case for briefing and oral argument.
LIST OF AMICI Filling the Brief
Trevor Potter was appointed a Commissioner of the Federal Election Commission by President George H. W. Bush in 1991 and served as Chairman in 1994. He has also served as legal counsel to three Republican presidential campaigns, and is currently head of the Political Law practice at Caplin & Drysdale, chartered in Washington, D.C.
Frank P. Reiche was appointed to the Federal Election Commission by President Carter, where he served from 1979 to 1985 and was Chairman in 1982. Before that, he served as Chairman of the New Jersey Election Law Enforcement Commission from 1973 to 1979.
Lawrence M. Noble was General Counsel of the Federal Election Commission from 1987 to 2000 and Executive Director of the Center for Responsive Politics from 2000 to 2006. He currently practices political law and is an adjunct professor at George Washington University Law School, where he teaches campaign finance law.
Charles N. Steele served as General Counsel of the Federal Election Commission from 1979 to 1987. Prior to that he served the Commission as Deputy Assistant General Counsel and Associate General Counsel for Enforcement and Litigation from 1977 to 1979, and as Acting General Counsel in 1979.
Jeffrey B. Garfield served as the Executive Director and General Counsel of the Connecticut Elections Enforcement Commission for more than 30 years before retiring in 2009. He successfully implemented the most comprehensive campaign finance reform legislation in the United States and is now is a solo practitioner in Connecticut handling political clientele.
Nicole A. Gordon was the founding Executive Director of New York City’s pioneer Campaign Finance Board for eighteen years, building it into a nationally recognized model and the largest public funding program in the United States after that of the federal government. She is a consultant to New York State and adjunct professor at the NYU Wagner School of Public Service where she teaches Law and Public Policy.
Robert M. Stern was General Counsel of the California Fair Political Practices Commission and is the former President of the Los Angeles-based Center for Governmental Studies
