On Tuesday, the Supreme Court is scheduled to hear oral arguments in a campaign finance case that could be even bigger than the last one, the infamous Citizens United case of 2010. The new case, McCutcheon vs. FEC, challenges the aggregate spending rules that limit any one campaign contributor to $123,000 in total spending to political candidates and election committees during any two-year federal election cycle. The aggregate limit long has been a check on the flow of cold hard cash into the electoral system. As a three-judge panel of federal district court in Washington, D.C., observed last year, the per-candidate contribution limits in federal law — including $2,500 per election to any given candidate, $30,800 per year to each political party — would allow an individual to spread up to $3.5 million around. That’s a lot of bunce. The $123,000 ceiling effectively limits that donor to backing no more than 18 individual candidates in any cycle, the D.C. court noted.
Alabama businessman Shaun McCutcheon says he doesn’t want to give gobs of money to a single politician. Instead, he hopes to spread smaller contributions to as many candidates as possible. If he has his way in a case headed to the Supreme Court on Tuesday, however, a single donor could contribute more than $3 million to a political party, its state and federal chapters and all of its federal candidates to shape next year’s midterm elections for Congress, campaign-finance watchdogs warn. His case, McCutcheon v. Federal Election Commission, is the latest round in the bitter national battle over the role of money in American politics and the biggest challenge to campaign-finance rules since the court’s bombshell 2010 Citizens United decision ended restrictions on independent political spending by corporations and unions. The new legal fight targets a cornerstone of election rules: the ability of the government to regulate the amount of money individuals can give to presidential and congressional candidates and political parties.
National: Government Shutdown May Mean No Disclosure Of Campaign Finance Before Special Elections | ThinkProgress
As the government shutdown continues to prevent all “non-essential” federal employees from doing their jobs, the Federal Election Commission’s operations have been particularly hard hit. With all but four of the agency’s employees furloughed until the shutdown’s end, voters in Alabama, Louisiana, Massachusetts, and New Jersey may not have any opportunity to see who is contributing to and running ads in support of the candidates. According to a Center for Public Integrity report, only the four currently-serving FEC Commissioners are considered essential. While parts of the agency’s electronic campaign finance disclosure system are automated, FEC Chairwoman Ellen Weintraub noted that no one will be around to resolve any glitches, computer crashes, or other parts of the disclosure process that require human action. “I don’t know how to personally post the reports — I’m a little out of my league there,” she noted, adding, “The public will have to go without disclosures until we open back up.”
The Supreme Court’s decision to restrict the Voting Rights Act, the 1965 legislation that prohibits discrimination against voters on the basis of race or color, could harm African-American political representation at the city council level, a new study says. The study found that municipalities with the strongest gains in black political representation were those protected by a provision of the Voting Rights Act that was invalidated by the Supreme Court in June. Some experts say the new study shows that the Court’s decision could reverse the gains that black voters have made as a result of the act, or at least impede further progress. The study, to be published this month in the upcoming issue of The Journal of Politics, is among the first on the act’s effectiveness on black political representation, according to researchers at Rice University, Ohio University and the University of Wisconsin-Milwaukee. Its conclusion is clear: The Voting Rights Act explains much of the electoral success of black candidates in city elections – and those gains could be at risk.
There are four people working at the Federal Election Commission during the shutdown. There are usually 339. This is the agency that’s meant to shine a light on campaign contributions and expenditures, to let the people know who is paying for the attack ads flooding their television screens as Election Day approaches. Campaign contributions are going into the dark. Campaigns can still file electronically, but if the system breaks, there will be no one around to fix the problem. “And it is possible that technological problems may arise that would prevent filers from filing on time,” FEC’s website states.
National: Mitch McConnell Will Ask Supreme Court To Scrap Campaign Contribution Limits Entirely | Huffington Post
On Oct. 8, Sen. Mitch McConnell (R-Ky.) will argue to the Supreme Court that all campaign contribution limits should be eliminated and that candidates should be able to accept unlimited donations. Although McConnell is not a party in the case of McCutcheon v. Federal Election Commission, the Supreme Court has granted the Senate minority leader time during oral argument to present his views: that campaign contribution limits are an unconstitutional burden on free speech and that the court should give contribution limits a higher level of scrutiny than it has in the past. McConnell will be represented by lawyer Bobby Burchfield. McCutcheon v. FEC challenges the aggregate limit on donations to federal candidates, political parties and political action committees, which bars an individual donor from giving more than $123,200 in total during the 2014 election cycle. McConnell wants to go much further by forcing courts to treat all campaign contribution limits as they treat campaign expenditure limits, which were found to be an unconstitutional burden on First Amendment rights in the 1976 Buckley v. Valeo decision.
The Supreme Court’s Citizens United decision reshaped American politics by striking down limits on independent campaign spending by corporations and unions. But it did nothing to disturb the other main form of campaign finance regulation: caps on individuals’ direct contributions to candidates. Shaun McCutcheon wants to change that. He has built a thriving engineering firm here, and he wants to give some of the money he makes to conservative political candidates. But a federal law limits the overall amount he can contribute to all candidates in an election cycle, and that does not sit right with him. “I think we need to spend more money on politics, not less,” he said. “I think we need to improve it.” The Supreme Court will hear his challenge to the overall limits next Tuesday. Some critics of Citizens United say the new case, McCutcheon v. Federal Election Commission, No. 12-536, has the potential to destroy what is left of federal campaign finance regulation.
Federal Election Commission Chairwoman Ellen Weintraub isn’t required to stay home today in the midst of a government shutdown. But there’s hardly a point to her visiting the agency’s office at 999 E. St. NW in downtown Washington, D.C. “I’d literally be the one turning the lights on,” said Weintraub, one of just four FEC employees among 339 the government has deemed “essential” during the shutdown. “My entire staff has been furloughed, so working — it’s what I can do on my own, along with my three colleagues on the commission.” And that’s not much. Phone calls to agency workers ring to voicemails, emails go unreturned and audits and enforcement cases and investigations are on ice until further notice. As Tuesday afternoon arrived, the FEC also appeared to stop uploading documents for public consumption, from candidate income and expenditure reports to notifications of political action committee formations.
The Obama administration launched a legal challenge Monday to North Carolina’s restrictive new voting law, accusing the state’s legislature of intentionally discriminating against black voters. A Justice Department lawsuit filed in North Carolina federal court is the latest salvo in a heated battle over protections for minority voters and the limits of federal government authority over state election regulations. The action follows a major setback for the administration this summer, when a divided Supreme Court sided against the Justice Department’s challenge of a Texas state law, effectively gutting a major portion of the Voting Rights Act. “The administration promised a decisive response and this is it,” UCLA law professor Adam Winkler said, describing the North Carolina case as “a bold move.” At issue are provisions of a new Tar Heel State statute that would reduce the number of early voting days and require North Carolinians to show photo identification before they are allowed to cast ballots.
National: Campaign finance at the Supreme Court: Is McCutcheon v. FEC the next Citizens United? | Slate
Sometimes at the Supreme Court, it is not if you lose, but how. That principle will be on full display in McCutcheon v. Federal Election Commission, the campaign finance case the Supreme Court will hear next Tuesday, the second day of the new term. If the government loses big, it could mark the beginning of the end of any limits on campaign contributions given directly to candidates in federal, state, and local elections. Citizens United and the rise of super PACs are already flooding the election system with money. But so far we’ve managed to keep a little distance between the money and the candidates themselves. If hard-line conservatives get their way, that distance will evaporate, and soon you could write a multimillion-dollar check that would go right into a candidate’s bank account. The question is whether Chief Justice John Roberts will hold back the conservative majority back from the brink—though if he does, Justice Antonin Scalia will surely taunt him for it.
If the federal government shuts down Tuesday, the Federal Election Commission — unlike some government agencies filled with employees deemed “essential” — will effectively go dark. Organizationally, all but the FEC’s four active commissioners, who are furlough-proof political appointees, would ultimately stay home. In all, 335 of the agency’s 339 employees would be affected, according to its 10-page “Commission Plan for Agency Operations in the Absence of the Fiscal Year 2014 Appropriation.” A small number of staff members, such as staff director Alec Palmer, would briefly work into a shutdown to help secure FEC facilities and records and aid with the agency’s wind-down, the plan states. And no one could labor on their own time and dime, as FEC staffers “are prohibited from performing any work functions while on furlough status, even on a voluntary basis,” the agency’s shutdown plan states.
Emboldened by the Supreme Court decision that struck down the heart of the Voting Rights Act, a growing number of Republican-led states are moving aggressively to tighten voting rules. Lawsuits by the Obama administration and voting rights activists say those efforts disproportionately affect minorities. At least five Southern states, no longer required to ask Washington’s permission before changing election procedures, are adopting strict voter identification laws or toughening existing requirements. Texas officials are battling the U.S. Justice Department to put in place a voter ID law that a federal court has ruled was discriminatory. In North Carolina, the GOP-controlled Legislature scaled back early voting and ended a pre-registration program for high school students nearing voting age. Nowhere is the debate more heated than in Florida, where the chaotic recount in the disputed 2000 presidential race took place.
In two weeks, the Supreme Court is scheduled to hear oral arguments in what many describe as the next Citizens United and the outcome could have major implications for campaign spending at the state level. What’s at stake in McCutcheon v. Federal Election Commission — for which oral arguments are scheduled on Oct. 8 — is the limit to individual political spending. The federal government sets separate limits for each election cycle on how much an individual can give to candidates, party committees and political action committees. But it also currently limits overall spending to $123,200. It’s that overall limit that the McCutcheon fight is about. Proponents say it prevents corruption; opponents say it limits speech. “When you have somebody writing a one, two or three million dollar check that greatly increases opportunities for corruption,” says Lawrence Norden, a deputy director at the New York University School of Law’s Brennan Center for Justice, which filed a brief in the case supporting the limit. But critics of the aggregate contribution limit say individual limits — such as the $2,600 cap on donations to a federal candidate or candidate committee per election — already provide that protection.
Alabama businessman Shaun McCutcheon and his GOP allies insist their Supreme Court challenge to a cap on overall campaign contributions in one election cycle doesn’t dispute the constitutionality of the “base” limit on how much an individual can give to a single candidate in a single election. “This case is not about base limits; they make sense,” said McCutcheon, whose challenge in McCutcheon v. Federal Election Commission is scheduled for oral argument before the Supreme Court on Oct. 8. “The corruption argument on base limits is pretty solid. If you were running for Congress and I gave you $1 million, wouldn’t you owe me?” The Republican National Committee has joined McCutcheon in arguing that the aggregate limits muzzle free speech. Indiana lawyer James Bopp Jr., who is representing the RNC in the case, also stresses: “We’re not challenging base limits in this case.” The case is shaping up as a key test of how far this high court is willing to deregulate the campaign finance system.
The Senate on Monday confirmed President Barack Obama’s two nominees to the Federal Election Commission, giving the panel its first new members since the George W. Bush administration. Democrat Ann Ravel and Republican Lee Goodman were approved by unanimous consent in a brief voice vote on the Senate floor. The commission — a six-member panel that regulates political spending on campaigns and elections — has been operating with just five commissioners since the spring when chairwoman Cynthia Bauerly departed for the private sector. Last week, Bauerly’s successor as chair Donald McGahn also left the commission to return to practicing law at Patton Boggs.
National: In a new campaign funding case, the Supreme Court may lift a lid on the total the wealthy can give to all candidates and parties | Los Angeles Times
In what may be Act 2 in the decline and fall of campaign funding laws, the Supreme Court appears poised to lift the lid on the total amount the wealthy can give directly to all candidates and political parties. Increasingly, the money that funds election races for Congress and the presidency comes from a small sliver of the very rich, what the Sunlight Foundation called the “elite class that serves as gatekeepers of public office in the United States.” The nonpartisan group has tracked how a growing share of election money comes from the top 1% of the wealthiest Americans. In the first major case of its new term, the court could give those donors even more clout with lawmakers and their parties. The issue is whether federal limits, not on contributions to individual races but on how much a donor can give to all candidates for Congress or party committees in a particular election cycle, violate the right of free speech.
Americans will be able to register to vote when applying for insurance through Obamacare, a White House official told TPM Tuesday, despite reports to the contrary and outcry from congressional Republicans. Mother Jones reported earlier Tuesday on a report from progressive groups, which asserted that the Obama administration was planning to back down from its plan to offer voter registration on the federal marketplace, which will cover 36 states. The source of the claim is unclear, which the Mother Jones article acknowledged, but it sparked some panic among liberal activists. Not to worry, a senior administration official told TPM: Voter registration through the health insurance marketplaces will continue as planned. The official said any reports to the contrary were “inaccurate.” Insurance applications filed under the health care reform law are required by law to have a section for voter registration. The 1993 National Voter Registration Act mandates that any government agencies providing government services must also provide people with access to voter registration.
Republican National Committee Chairman Reince Priebus said Friday he’ll move up the national convention, shorten the primary season and hand-pick debate hosts to improve the chances of a Republican winning the White House in 2016. “This is what we need to do to protect our party,” said Priebus, speaking to Michigan Republicans at the Grand Hotel. Before the dinnertime crowd, Priebus outlined his high profile effort to transform the primary calendar in wake of brutal and protracted primary season in 2012 that ended with a loss for GOP nominee and Michigan native Mitt Romney. Priebus wants to move the national convention from August to June. By choosing the nominee earlier, the candidate can spend general fund campaign dollars against the Democratic opponent well in advance of the November election.
Last week, in a first for the state of Colorado, two state legislators were recalled by their constituents. Senator Angela Giron (D-Pueblo) and Senate President John Morse (D-Colorado Springs) were sent packing in large part due to their votes in favor of new gun laws passed and signed into law earlier this year. As I’ve noted elsewhere (here and here), recall elections are a rarity in the United States, but they’re becoming increasingly common. There have only been 38 state legislative recall elections since states first began adopting the procedure in 1908. Seventeen of those—nearly half—have occurred just since 2010. And some of them, particularly the recent Colorado ones, would have to be labeled as political successes for their backers. A vocal and passionate minority (in this case, gun owners) wanted to punish some lawmakers for their votes and send a message of intimidation to others. They did that. My guess is that the recall will only become more popular in the coming years. Now, I remember quite a few people predicting the same thing after the successful 2003 recall of California Governor Gray Davis. In fact, it would be another five years before anyone would attempt to recall a state legislator, and another three years after that until an attempt to unseat another governor. Why would it not catch on then but catch on now?
A national tea party group is asking for permission to keep their donors secret — just like the socialists. Citing a long litany of harassment examples, the Tea Party Leadership Fund is asking the Federal Election Commission for the same right granted to the Socialist Workers Party to shield the names and information of their donors from the public. In a new request to the FEC shared with POLITICO, the group argues that tea party donors and activists are being targeted for harassment by government officials and private groups — and they cite derogatory comments by politicians and overbearing government investigations as evidence. “Nobody likes the communists and really for good reason,” said Dan Backer, the attorney for the group who wrote and filed the complaint. But, Backer said, the same legal principle that grants left-wring groups the right to hide their donors should also cover tea party groups. “As we very thoroughly document at almost three times the length of the socialist request, tea party supporters are subject to an unprecedented level of harassment and abuse,” Backer said. If the tea party request is granted, the decision could open the floodgates to outside groups, candidates and political parties who want to hide their donors with the government’s blessing. “This will be the beginning of a conversation about the burdens and the perils of disclosure,” Backer predicted.
President Barack Obama’s two nominees to the Federal Election Commission — an agency rife with ideological discord and often gridlocked on key issues before it — today won unanimous approval from the Senate Rules and Administration Committee. The nominations of Republican Lee E. Goodman and Democrat Ann Ravel now move to the full Senate, which must confirm Goodman and Ravel before they’re appointed to the FEC. The Rules Committee had originally scheduled a nomination vote for Monday but delayed it because it failed to reach a quorum. “The Commission is designed to play a critical role in our campaign finance system,” Sen. Chuck Schumer, D-N.Y., the Rules Committee chairman, said in a statement. “It is my hope that, once confirmed, Mr. Goodman and Ms. Ravel will work hard to restore the agency to a fully functioning independent federal watchdog for the nation’s campaign finance laws.”
Donald F. McGahn, the controversial former chairman of the Federal Election Commission, resigned from the panel on Tuesday to return to private law practice, ending what campaign-finance reform advocates and political practitioners called one of the most consequential tenures in the commission’s 38-year history. McGahn, a Republican who had served on the FEC since 2008, clashed frequently with Democrats as he helped push a conservative interpretation of campaign-finance laws and persistent skepticism about government oversight of political campaigns. McGahn will leave to become a partner at Patton Boggs, which has one of Washington’s leading election law practices.
Political action committees spent more money on state-level candidates in just 23 states during the 2012 election cycle than they did on federal candidates in all 50 states, according to a new analysis. The analysis from the Sunlight Foundation shows state-level PACs dished out $1.4 billion to candidates running for governor, attorney general, state legislative and other non-federal offices in those states. All told, PACs spent $1.2 billion on federal candidates. State PACs do not have to report their spending to the Federal Election Commission. Instead, they report to campaign finance organizations in the states in which they spend money, all of which have different rules for reporting, disclosure and spending.
How will voters cast ballots in the future? “That is the million-dollar question when I meet with other election officers and directors,” said Utah Elections Director Mark Thomas. In 2002, Congress passed the Help America Vote Act (HAVA), making available billions of dollars in funding for states to purchase electronic voting machines — then new and controversial technology aimed at eliminating a repeat of the hanging-chad debacle of the 2000 presidential election. “The manufacturer is no longer building them,” Thomas said of the 7,500 electronic machines the state purchased with its $28 million. “The parts will get scarce, and the technology will become obsolete. We’ll work through that as best and as long as we can, but at some point we’ll have to do something different.” That “something different” has yet to be clearly defined — but as current machines age out of use, counties and states will be on the hook to devise and fund their own changes. “Money is a big driver,” Thomas said. “We had HAVA money a decade ago, but that has since dried up. “We wish we had a crystal ball,” he added.
Limits on federal election campaign contributions that have stood for nearly 40 years appear ready to fall unless Supreme Court Chief Justice John Roberts rescues them, as he did President Obama’s health care law. That’s the growing assessment of legal experts on the left and right who are gearing up for the first big case of the high court’s 2013 term, one that could fortify the Roberts court’s opposition to restrictions on campaign spending. Three years after their blockbuster decision in Citizens United v. Federal Election Commission struck down limits on independent spending by corporations and labor unions, the justices are being asked to eliminate the ceiling on what wealthy donors can contribute to federal candidates, parties and political action committees. Limits on each donation would be retained, but donors would be allowed to make as many as they like. The case pits the First Amendment’s freedom of speech against the government’s interest in stopping political corruption — and Roberts, more than any of his colleagues, is the man in the middle. He has ruled five times in a row against restrictions on political speech, but unlike several of his conservative colleagues, he has not debunked limits on federal contributions.
National: After Contentious, Impromptu Debate on Enforcement Procedures, FEC Deadlocks on Two Advisory Opinion Requests, Approves a Third | In the Arena
Before the Federal Election Commission took up the scheduled agenda at today’s public meeting, a contentious debate broke out over its continued inability to agree on whether and how to revise its enforcement procedures. Commissioners have disagreed over how to handle fact-finding during enforcement investigations, as well as proposed guidelines on information sharing with the Department of Justice. In an hour-long back-and-forth, Commissioners McGahn, Hunter and Petersen all called for prompt consideration of the proposed Office of General Counsel (OGC) Enforcement Manual. Commission Chair Weintraub acknowledged that she had placed a hold on consideration of the manual, but criticized McGahn for publicly discussing the matter. While she did not explicitly state when she would remove the hold, Weintraub argued that only after a new general counsel is appointed and two new Commissioners are confirmed by the Senate would there be enough of a “level playing field” to warrant a vote on the manual. (There is currently one vacant seat on the Commission, and McGahn has announced his plans to leave in the near future.) Commissioner Walther (via phone connection) said that while the agency had made “unprecedented improvements in transparency” regarding its enforcement procedures, it needed to go further. Eventually, Chair Weintraub brought the discussion to a close, citing the fact that the matter was not included on the agenda.
National: GOP State Officials Blame Republican Obstructionism For Blocking Voting Restrictions | TPM
There’s a deep irony about a joint lawsuit Republican state officials in Arizona and Kansas have filed against the Obama administration in order to require voters to present proof of citizenship in order to register to vote: Republicans’ own national obstructionism on voting rights is a key blockade for the state-level restrictions to go through. The lawsuit, filed by Arizona Attorney General Tom Horne, Arizona Secretary of State Ken Bennett and Kansas Secretary of State Kris Kobach and following Scalia’s guidance issued in the Supreme Court case this July, claims that the Obama administration is illegally blocking Arizona and Kansas’ efforts to require proof of citizenship for registering to vote. The suit argues that failing to staff the vacant Election Assistance Commission (EAC), which is charged with overseeing voter registration guidelines related to the national voter registration form, is blocking these states’ ability to change their voter registration processes. “The lack of quorum unconstitutionally prevents Plaintiffs, in violation of the Tenth Amendment, from exercising their constitutional right, power, and privilege of establishing and enforcing voting qualifications, including voter registration requirements,” the states said in their complaint.
President Barack Obama’s two nominees to the Federal Election Commission must wait a little longer for the Senate Rules and Administration Committee to vote on their nominations. Only Sen. Chuck Schumer, D-N.Y., appeared at this morning’s scheduled meeting, announcing that the committee had failed to reach a quorum, and therefore, couldn’t conduct a vote. But Schumer, the committee’s chairman, added during brief remarks that a vote on the FEC nominees — Democrat Ann Ravel and Republican Lee Goodman — could come as “early as tomorrow.” Rules Committee staff explained that senators could conduct a vote on Goodman and Ravel without scheduling another formal meeting, instead gathering together during a break in action when the full Senate meets in session. The Rules Committee’s recommendation would be forwarded to the full Senate, which would conduct a final appointment vote.
The Presidential Commission on Election Administration met in Philadelphia yesterday to hear testimony given by experts from up and down the east coast and beyond on how to improve voting in America. The commission was created by President Obama this year to “promote the efficient administration of elections” in response to long lines and other glitches that have threatened the integrity of voting days in years past. The commission solicited input from election officials and academics on how to overcome technical and logistical obstacles that impede voting. Among the topics addressed were analytical methods to better distribute polling resources, the use of electronic signature databases for more streamlined registration, language access issues particularly for Asian and Latino voters, access for people with disabilities and emergency preparedness to salvage elections that are disrupted by major disasters such as Hurricane Sandy.
Will digital dollars soon fund U.S. political campaigns? If a conservative political action committee has its way, supporters will be able to donate to federal elections using bitcoins, a relatively new form of virtual currency. The Conservative Action Fund PAC this week asked the Federal Election Commission to approve rules governing the use of this online form of currency. The move seeks to push the technology envelope for federal regulators who just last year endorsed political donations via text message for the first time. The FEC has 60 days to respond to requests such as these but can extend the amount of time it takes to consider the matter. “As bitcoins become a bigger part of the economy, we see a future in this … particularly among libertarian-minded voters,” said Dan Backer, the Conservative Action Fund lawyer who filed the FEC request.