United States Supreme Court Strikes Down Aggregate Contribution Limits in McCutcheon v. FEC

Yesterday, the United States Supreme Court struck down the aggregate contribution limits that apply to individuals on constitutional grounds in McCutcheon v. Federal Election Commission.    The opinion can be found here and the link to the FEC litigation page containing the case history and briefs can be found here.

The case’s significance lies is the narrowing of the Court’s definition of corruption and the appearance of corruption to quid pro quo corruption, not in the practical effect the holding will have on money in politics.

I will be posting on this case later.  In the meantime, listed are links to some of the articles discussing the decision:

National Journal

New York Times

Washington Post


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United States Supreme Court Issues Voting Rights Act Decision

The United States Supreme Court issued its opinion in Shelby County, Ala. v. Holder, holding that a key provision of the Voting Rights Act (“VRA”) is unconstitutional. Listed below are the key paragraphs explaining the Court’s decision.

Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case

United States Supreme Court

United States Supreme Court

then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.

While section 4(b) of the VRA was found unconstitutional by the Court, sections 2 and 5 remain.  It is now up to Congress whether it will create a new coverage formula.

Also, here are a few articles discussing today’s opinion:

The New York Times, Supreme Court Strikes Down Key Part of Voting Rights Act

Washington Post, Supreme Court Stops Use of Key Part of Voting Rights Act

POLITICO, Supreme Court Strikes Down Key Voting Rights Provision

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President Announces Two Nominations For FEC

POLITICO reports that the President has nominated Ann Ravel, a Democrat who chairs the California Fair Political Practices Commission, and Lee Goodman, a Republican election lawyer, to the Federal Election Commission.

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FEC General Counsel Leaving The FEC, Returning To Private Practice

Anthony Herman, General Counsel to the Federal Election Commission, has resigned and will be returning to private practice.  We wish him well and good luck with his future endeavors.

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IRS IG Report Released And Other Developments In The IRS Scandal

Election Law Blog has posted a copy of the report here.  The report is fairly limited in scope compared to the revelations that have been made in the press this week.  The report, however, is worth a read since it raises new questions that the Congress and Department of Justice will need to sort out.

Listed below are some of the articles discussing the IG Report and other developments:

USA Today, IRS approved liberal groups while Tea party in limbo

Washington Post, IG Report: ‘Inappropriate criteria’ stalled IRS approvals of conservative groups

POLITICO, The IRS wants you — to share everything

POLITICO, 5 takeaways from IRS Report

The New York Times, IRS says counsel did not tell Treasury of Tea Party scrutiny

CNN, Source: Two rogue workers principally behind IRS targeting of conservative groups

The Hill, Top Dem tax writer Levin calls for IRS officials to resign

The Hill, Obama summons top Treasury officials to discuss IRS scandal


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“Justice Dept. Opens Inquiry Into IRS Audits”

The New York Times report on the criminal investigation into the IRS scandal.

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“Holder Discloses IRS Criminal Probe”

The Wall Street Journal just published an article discussing Attorney General Eric Holder’s disclosure that the Department of Justice has launched a criminal probe into the IRS’s targeting of conservative groups.

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IRS Scandal’s Next Question: Who Received The Information From The Conservative Groups?

The mounting problems facing the IRS continued to expand on Monday.  News outlets disclosed that IRS employees and officials outside of the Cincinnati office sent inappropriate requests for information to conservative nonprofit groups and that high-level IRS officials were apparently briefed on the program or aware of its existence earlier than previously disclosed.  ABC News also published a timeline of events that appears to come from the Inspector General’s report that is scheduled to be released sometime this week.  Each new disclosure focused on who sent the request for information, which office sent the request, and when the request was sent to the conservative group.  Eventually, however, someone needs to begin asking questions about who received the information that was submitted by the conservative groups in response to inappropriate IRS requests for information during the application process.  Put simply, someone needs to follow the information. 

Listed below are some of the recent articles covering the IRS scandal:

ProPublica, IRS office that targeted Tea Party also disclosed confidential docs from conservative groups

The Atlantic, Congress put pressure on IRS to investigate conservative tax exempt groups

Washington Post, IRS officials in Washington were involved in targeting of conservative groups

National Journal, A guide to the IRS sacandal — what happened and when did it happen

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IRS Scandal UPDATE: DOJ And FBI Launch Criminal Probe

The Washington Post is reporting that Attorney General Eric Holder disclosed during a press conference today that he has ordered the Department of Justice and Federal Bureau of Investigation to probe the IRS’s targeting of conservative groups.  This represents a major escalation in this matter and may complicate the congressional hearings scheduled for this Friday involving IRS officials.

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IRS Targets Conservative Groups

The disclosure that the Internal Revenue Service (IRS) targeted conservative groups was disclosed last Friday afternoon in the form of an apology by an IRS official in response to a question during a panel discussion at a lawyers conference.  Since the initial disclosure, the scandal has grown raising more questions about who knew about the program that was allegedly designed and implemented by low-level IRS employees, what was done by their IRS superiors after the existence of the targeting program was disclosed or discovered, and whether the problem is more wide spread than the IRS employees who were screening exemption applications.    

This scandal has legs and is one to watch very closely.  Some of the issues I will be watching is whether the conservative IRS filings were flagged for targeting as they arrived at the IRS or did the IRS also go back and engage in data mining for conservative group filings that were already in the pipeline for processing by this group IRS employees and officials?  Will the IRS IG Report that apparently is set to be released this week focus specifically on the exempt organizations application unit or did the investigation involve other IRS units?  One thing seems clear: this is the beginning of the beginning of this scandal.

Listed below are a sample of articles discussing this scandal:

ABC News, IRS IG Report: targeting conservatives began in 2010

Washington Post, IRS targeted groups critical of government, documents from agency probe show

POLITICO, Report: IRS targeted debt, spending groups

Wall Street Journal, Wider problems found at IRS

Election Law Blog, Bipartisan calls for investigation in IRS case, but where are the reform groups? 

More Soft Money Hard Law, On the IRS’s current problems — and the problem with the law of tax exempt politics

 Fox News, IRS scrutiny went beyond Tea Party, targeting of conservative groups broader than thought

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Campaign Finance Panel Discusses The Future Of The FEC

On April 30, 2013, Citizens for Responsibility and Ethics in Washington (“CREW”) and the George Washington University Law School Political Law Studies Initiative (“PLSI”) co-sponsored a panel discussion featuring leading campaign experts entitled “The Future of the FEC.”  The discussion was both informative and lively and should serve as a first step in this important conversation about the future of the agency now that each Commissioner’s term has expired.

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“How Republicans Are Looking To Close The Digital Divide Against Democrats”

The National Journal reports on how some Republican technology consultants believe the Republican Party can upgrade its technological capabilities to be more competitive in the upcoming elections.

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Federal Aggregate Biennial Contribution Limits At Issue in Latest Supreme Court Case

On Tuesday, the United States Supreme Court agreed to hear a constitutional challenge to the biennial aggregate contribution limits applicable to individuals under federal law in McCutcheon, et al. v. FEC.  The biennial aggregate contribution limits apply for a two-year election cycle and limit the overall amount an individual may contribute during that time period to all federal candidates, political party committees, and political action committees combined.  It also provides for sub-limits concerning how much an individual may contribute to all federal candidates, and how much an individual may contribute to all political party committees and political action committees.  The per committee contribution limits for candidates committees, political party committees and political action committees are not being challenged in this case.

The Federal Election Commission’s summary of the litigation can be found here.

Below is a list of articles discussing the latest campaign finance case accepted by the Roberts Court:

New York Times

Roll Call

Washington Post

Election Law Blog


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OCE Rules And The Need For Reform

Apologies for not posting for a while.  Here is a link to my recent Politico op-ed discussing the need to reform the Office of Congressional Ethics (“OCE”) rules to provide greater transparency for subjects and to provide them with a more meaningful opportunity to respond to the specific allegations against them.

Roll Call also published a story discussing many of the proposed reforms discussed in my op-ed.

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Disclosure Case Discussion on FEC’s Agenda for Today’s Open Meeting

The Federal Election Commission (“FEC”) is scheduled to hold an open meeting today at 10 am.  The agenda can be found here.   The Commissioners are scheduled to discuss the federal court’s order in Van Hollen v. FEC and the regulated community’s reporting requirements for electioneering communications.  The federal court’s order requires the FEC to advise the court no later than October 12, 2012 whether it intends to initiate a rulemaking or defend the current regulation – the 2007 regulation.

UPDATE:  The Democratic Commissioners just made a motion to initiate a rulemaking in response to the federal court’s order.  The motion failed along party lines — the three Democratic Commissioners voted in favor of the rulemaking motion and the three Republican Commissioners voted against it.  As a result, Chairman Hunter declared that the FEC will defend the current regulation.

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