Van Hollen Lawsuit Challenging Flawed FEC Contribution Disclosure Regulations Will be Heard in Court Next Week

|, |by

Next week on Wednesday, January 11, 2012, oral argument will be heard in the case of Van Hollen v. Federal Election Commission. The argument will take place at 10 am in Courtroom 3 before Judge Amy Berman Jackson of the U.S. District Court in Washington, D.C.

According to Democracy 21 President Fred Wertheimer:

The Van Hollen lawsuit challenges as contrary to law FEC regulations that have gutted the statutory requirements for organizations’ making “electioneering communications” to disclose the donors financing their expenditures.

Improper FEC regulations are responsible for more than $135 million in secret contributions being spent on “electioneering communications” and “independent expenditures” in the 2010 congressional races. The amount of secret money injected into federal elections will grow dramatically in the 2012 elections and beyond until the FEC’s flawed regulations are changed or new disclosure legislation is enacted.

Representative Chris Van Hollen (D-MD) is represented in the lawsuit by the Democracy 21 legal team, which is led in this case by the law firm of WilmerHale and senior partner Roger Witten who will argue the case, and which also includes lawyers from Democracy 21 and the Campaign Legal Center.

Enclosed below for your information are brief summaries prepared by Democracy 21 of the Van Hollen case and other significant campaign finance cases currently pending in the courts. Also for your information, Democracy 21will issue a report this week on Presidential candidate Super PACs.

Significant Pending Cases on Campaign Finance Issues

Van Hollen v. FEC.  This case challenges the legality of FEC regulations to implement statutory disclosure requirements for “electioneering communications.”  The regulations provide that groups which pay for “electioneering communications” need to disclose the sources only of donations given “for the purpose” of funding an electioneering communication.  Rep. Van Hollen is challenging the regulation as contrary to law and inconsistent with the statutory requirement that a group making electioneering communications must disclose all of its donors.  The case is pending before the district court in the District of Columbia.  Oral argument on cross-motions for summary judgment will be held on January 11.

Bluman v. FEC.  This case challenges the constitutionality of the federal ban on contributions and independent expenditures by foreign nationals.  2 U.S.C. § 441e.  The ban was upheld in August, 2011 by a three-judge district court in the District of Columbia.  Plaintiffs are seeking review of the decision by the Supreme Court.  A decision on whether the Supreme Court will accept the case for plenary review is expected shortly.

Wagner v. FEC.  This case challenges the constitutionality of the “pay-to-play” ban prohibiting government contractors from making contributions to federal candidates.  2 U.S.C. § 441c.  The case was filed in October 2011 in district court in the District of Columbia and the plaintiffs have asked the district court to certify the constitutional question to the D.C. Circuit Court of Appeals en banc, pursuant to special judicial review provisions in FECA.

United States v. Danielczyk.  This is a criminal case in which the defendant is charged with violating the ban on corporate contributions by directing corporate funds to a federal candidate’s campaign.  The defendant challenged the constitutionality of the ban on corporate contributions and the district court for the Eastern District of Virginia held the ban unconstitutional, citing the reasoning of Citizens United v. FEC. In defending the ban, the government has argued that a prior Supreme Court decision, Beaumont v. FEC (2003) upheld the corporate contribution ban and the Citizens United case addressed only corporate expenditures, not corporate contributions.  The district court ruling is now on appeal to the Fourth Circuit Court of Appeals.

Western Tradition Partnership Inc. v. Attorney General.  This case challenges a Montana state statute which bans corporate independent expenditures.  In an opinion issued in December, 2011, the Montana Supreme Court upheld the ban and distinguished the ruling in Citizens United which struck down the comparable federal ban.  The Montana Court held that the state law ban serves a compelling governmental interest by addressing corruption and the appearance of corruption caused by corporate influence on state government, as shown by the history of corporate behavior in Montana.  Plaintiffs may seek to appeal this ruling to the U.S. Supreme Court, which would provide an opportunity for the Court to rule again on the issues involved in the Citizens United decision.

Ognibene v. Parkes.  This case challenges the constitutionality of New York City “pay-to-play” provisions that reduce (below otherwise applicable levels) the size of contributions to City candidates that can be made by lobbyists and other individuals doing business with the City. In an opinion issued in December, 2011, the Second Circuit Court of Appeals upheld the City laws, finding that the lower contribution limits for people doing business with the City served compelling governmental interests and did not unconstitutionality infringe on the First Amendment rights of the plaintiffs.  The plaintiffs have not indicated yet whether they will seek to appeal the ruling to the Supreme Court.

Preston v. Leake.  This case challenges the constitutionality of a North Carolina state law that bans contributions by registered lobbyists to state legislative candidates.  In an opinion issued in November, 2011, the Fourth Circuit Court of Appeals upheld the constitutionality of the contribution ban, rejecting a claim that the ban infringed the First Amendment rights of lobbyists.  The court held that the lobbyist contribution ban served compelling governmental interests in preventing corruption and the appearance of corruption.  The plaintiffs have not indicated yet whether they will seek to appeal the ruling to the Supreme Court.

National Organization for Marriage v. Browning.  This case challenges court disclosure requirements under Florida law for groups making “electioneering communications,” which are defined under state law as ads which are susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate.  NOM challenges the disclosure requirements as vague and burdensome.  The federal district court upheld the constitutionality of the state disclosure law, and the case is on appeal to the Eleventh Circuit Court of Appeals.

Real Truth About Obama v. FEC.  This case challenges the “major purpose” prong of the FEC’s regulation defining “political committee,” and the FEC’s definition of “express advocacy” to include ads which are susceptible of no reasonable interpretation other than to advocate a vote for or against a candidate.  Plaintiff challenges both regulations as vague and overbroad.  The district court for the Eastern District of Virginia upheld both regulations, and the case is on appeal to the Fourth Circuit Court of Appeals.