Meredith McGehee, policy director of the Campaign Legal Center, writes an opinion piece in Roll Call ($$) on the current stalemate with the Federal Election Commission (FEC) nominations. McGehee describes the situation that Senators are facing; "either vote for an individual who is wholly unworthy of Senate confirmation after compiling a scandalous record of partisanship, politicization and voter suppression at the Department of Justice, or refuse to let this nomination go through and thus allow the commission charged with enforcing federal campaign laws to be brought to a halt during an election year." And then offers recommendations to move ahead of the FEC standstill, and to achieve a working FEC.

First, Senators from both sides of the aisle should convey to Bush and McConnell that continuing to insist on von Spakovsky's confirmation is a waste of time. They should make clear they are unwilling to confirm an individual who, at the Department of Justice, compiled a record of politicization and voter suppression and who, at the FEC, demonstrated a contempt for the very laws he was supposed to enforce. Second, Bush should rise above the game of chicken that the American people are so tired of, and allow von Spakovsky, who has publicly admitted he lacks the requisite support in the Senate to be confirmed, to withdraw his name. Third, the Senate should then move to approve the other nominees awaiting confirmation to the FEC — Republican David Mason and Democrats Steven Walther and Robert Lenhard. The president should then send up another Republican name to the Senate to replace von Spakovsky. That nominee should be someone who can garner bipartisan support so the nomination can move through the Senate quickly.

The Center for Individual Freedom (CFIF) filed a lawsuit challenging a West Virginia electioneering communications law. CFIF wants to run television and radio ads targeting West Virginia's upcoming Supreme Court elections, but doesn't want to disclose how much it spends or who is paying for the ads.

CFIC charges that several provisions of campaign finance law are vague and overbroad, and unconstitutional. The lawsuit states; "This is an action to vindicate core First Amendment rights of free speech, association, and petition that are being infringed by facially vague and untailored provisions of West Virginia law. Plaintiff wishes to engage in public discussion of issues of public policy while West Virginians are focused on such matters by the impending state elections, while candidates in those elections usefully illustrate Plaintiffs points, and while grassroots activity is most effective. Plaintiff is being deterred from speaking, however, by threatened civil and criminal penalties."

Yesterday, the Kansas House of Representatives gave preliminary approval to a bill that would require Kansas voters to shower photo ID at the polls. The bill is expected to be voted on next Friday. If passed, the new legislation would come into effect by the 2010 election. The bill includes exemptions for voters 65 years old and over, those with disabilities, soldiers on active duty away from their district, and citizens living abroad.

The Wichita Eagle offers more details on the bill.




Whitehouse bill would stop voter caging

Sheldon Whitehouse (D-R.I.) is proposing new legislation that would put an end to voter caging, a practice in which the voter rolls are questioned. It can lead to unwarranted purges or challenges of eligible citizens. The Caging Prohibition Act (S. 2305) would outlaw voter caging, and was first introduced in November 2007, and is pending before the Senate Rules and Administration Committee. Sheldon, testifying before the committee in February, said,

It is an unfortunate reality that, with so much at stake in the ballot box, organized efforts to suppress the vote go nearly as far back as the right to vote itself...Protecting the rights of eligible voters is essential to the health of our democracy.

Last week a new effort began which uses technology to promote a transparent and open government. ChangeCongress wants legislators to make four commitments, which they can do by filling out a form indicating which of the pledges they support. In the end, it provides a graphic that the candidates can then place on their election campaign web sites. Citizens can also fill out pledges to put on their own website. ChangeCongress is an innovative way to organize citizens, encourage them to be politically active, and in doing so demands accountability in political campaigns.

Founder Lawrence Lessig writes on HuffingtonPost.com; "Change-Congress.org will be a bi-partisan, web-based effort to leverage and amplify the important reform work being done by others. […] Change-Congress.org will develop in three stages. The first layer will give candidates and Members of Congress a simple way to signal their support for any mix of four fundamental planks of reform: (1) a promise not to accept PAC or lobbyist contributions, (2) a commitment to abolish "earmarks" permanently, (3) a commitment to support public financing of public elections, and (4) a commitment to compel transparency in the functioning of Congress. Once a candidate or Member selects the planks he or she supports, the site will give the candidate code to embed that pledge on the campaign website. Citizens too will be able to take a similar pledge, promising to support candidates who match their own vision of reform. When they do, they will be linked back to reform organizations that support each plank.

Video of the launch of ChangeCongress is available from the Sunlight Foundation.

The Supreme Court will not hear an appeal from Citizens United, which is requesting a challenge to campaign finance rules that require disclosure of those paying for political ads in the weeks before an election (Citizens United v. FEC). The Supreme Court's decision upholds a lower court ruling that denied the group a preliminary injunction and found that the ads Citizens United wanted to air advertising its documentary Hillary: The Movie, constitute as "electioneering communications." Therefore the group must disclose who funded the ads. Citizens United argues that the ads should be considered issue speech instead.

On February 29, the Supreme Court requested new briefs that responded to the question of whether the Court had jurisdiction over the case or if the case has to be first appealed to the U.S. Court of Appeals. This recent news is the Court's decision that they do not have jurisdiction.

However, the case is not over. BNA Money and Politics ($$) reports that James Bopp, the attorney representing Citizens United, "is still in district court pursuing a resolution of the case, and if an appeal failed in the lower courts, he would once again bring the case up for Supreme Court review. [. . .] The legal team behind Citizens United considers this a novel and important issue and plans to stick with the case."

Electionline.org reports that 11 states are considering legislation that will require voters to present photo ID at the polls. In January, the Supreme Court heard arguments in a case concerning the constitutionality of such laws in Crawford v. Marion County Election Board. The states considering such laws include California, Illinois, and Maryland.

Proponents of voter ID requirements argue that voter fraud requires such safeguards. Opponents of these laws argue that little evidence exists to suggest that voter fraud is real. In The Truth About Voter Fraud, the Brennan Center for Justice's Justin Levitt reviews the allegations of voter fraud.

Read the Electionline.org article online.

On April 11 the U.S. District Court for the District of Columbia will hear oral arguments in the SpeechNow.org case. SpeechNow.org wants to advocate for the election of federal candidates who favor free political speech, and is challenging campaign finance law that requires the group to register as a political committee, and limits individual donations to $5,000 per year.

Senator Joe Lieberman (I-CT) wrote to the Internal Revenue Service (IRS) requesting clarification of its standards for investigating candidates' and elected officials' appearances at churches. Lieberman questioned why the IRS chose to investigate the United Church of Christ for possibly violating the ban on partisan electioneering with a speech by Senator Barack Obama (D-IL).

The letter states; "I find the Service's inquiry especially troubling because of the Service's inadequate guidance in this area. Publication FS-2006-17, which the Service issued in February, 2006, and posts on its website, states that candidates may be invited to speak at churches in their individual capacity, and that depending on the circumstances, such invitations can be granted 'without jeopardizing its tax-exempt status.'"

"But I am concerned about the chilling effect on legitimate activity by religious organizations that results from initiating a church tax inquiry without first satisfying the reasonableness standard, and I am further concerned by the lack of clear guidance in this area."

In December 2006, the U.S. Election Assistance Commission released a report on voter fraud - Election Crimes: An Initial Review and Recommendations for Future Study. The report caused a storm of controversy. Consultants who drafted the report alleged that the EAC had improperly edited the report without their permission.

In response, EAC Chair Donetta Davis asked the EAC Inspector General to review the circumstances surrounding the publication of the report. This week, the OIG released its findings in response to Davis's request.

The OIG report clears the EAC of charges that the voter fraud report was changed for political reasons, but finds that the EAC mismanaged the process for drafting and editing the report. According to the OIG, "The investigation revealed that there was confusion regarding the intended scope of the project and the intended use of the consultants' draft report….However, we found no evidence to support allegations that the changes were made to the report due to improper reasons or political motivations."

The Voter Education Committee (VEC), a 527 organization, has asked the U.S. Supreme Court to review a case that challenges the constitutionality of Washington state law requiring any organization found to support or oppose a candidate or ballot issue to register as a political committee and have their finances regulated. VEC wants review of a Washington state Supreme Court decision made last year that ruled that VEC should have registered as a political committee and did not find the definition of "political committee" to be constitutionally vague ( Voters Education Committee v. Washington State Public Disclosure Commission, Wash.). The Washington state court found that the committee aired ads opposing the candidacy of former insurance commissioner Deborah Senn paid for with $1.5 million in donations from the U.S. Chamber of Commerce, which should have been disclosed under state campaign finance law.

The Center for Competitive Politics (CCP) filed a statement in support of the petition. CCP states that "VEC argues that political committee status should only apply to non-party organizations that engage in express advocacy. Express advocacy is any form of communication that can only be interpreted as urging the election or defeat of a clearly identified candidate for office using words such as 'elect' or 'defeat."

BNA Money and Politics ($$) reports that in their petition, "VEC noted that the Supreme Court upheld BCRA and its regulatory standard of 'support' or 'oppose' regarding activities and messages originating from political parties. However, the petition argued that this standard is too vague to be applied to non-party groups that get involved in political debates."

This case will likely have significant effects, considering the Bipartisan Campaign Finance Act (BCRA or McCain-Feingold) includes a similar "support or oppose," standard also known as "PASO", promote, attack, support or oppose.

Americans United for Separation of Church and State asked the Internal Revenue Service (IRS) to investigate Grace Community Church, a Houston church whose pastor issued a letter of endorsement for U.S. House of Representatives candidate Shelley Sekula Gibbs. The pastor's endorsement letter identifies himself as senior pastor of Grace Community Church. "I have pastured in the 22nd District for 24 years. It is not often I endorse a candidate for office. I want to know if they represent my values. I have thoroughly discussed the issues of life, marriage and family with Shelley over the years."

In the letter to the IRS, AU Executive Director Barry W. Lynn wrote, "Nowhere in the letter does Riggle state that he is speaking as a private citizen. . . . No attempt is made to distance the church from this endorsement. Although the IRS permits pastors to endorse candidates as private citizens, it cautions that pastors must not do so in their official capacity as congregational leaders."

A front page article in the Wall Street Journal ($$) discusses that Rev. Jeremiah Wright Jr., the pastor of presidential candidate Barack Obama's church, has frequently supported Obama during services. "Mr. Wright's and his successor's repeated enthusiastic promotion of their famous parishioner may be running afoul of federal tax law, which says churches can endanger their tax-exempt status by endorsing or opposing candidates for public office.

Scholars and attorneys say that a growing number of congregations are delving into issue advocacy and partisan politics, a trend dating back to the 1980s, when the religious right enlisted churches to fight abortion. An increasing number of complaints to the IRS over church politicking have triggered agency probes into both liberal and conservative religious groups.

In some instances, the church's ministers alluded to Sen. Obama without naming him. During a Trinity sermon observed by a Journal reporter on March 2, the Rev. Otis Moss III, the pastor, preached, "There was a non-Babylonian, a young man who heard the word of God and said, 'I have the audacity to hope!' Now the whole nation says, 'Yes, we can! Yes, we can! Yes, we can!'"

The Campaign Legal Center and Democracy 21 have filed a friend of the court brief, charging that the SpeechNow.org lawsuit "is about whether wealthy donors can each contribute hundreds of thousands, or indeed, millions of dollars to sophisticated committees often run by Washington political operatives, closely associated with parties and candidates, in order to finance campaign advocacy . . . [T]he Supreme Court has recognized that laws which prevent the circumvention of contribution limits thereby serve important governmental interests by protecting the integrity of the campaign finance laws."

SpeechNow.org, a 527 organization who plans to advocate for the election of federal candidates who favor free political speech, has filed a lawsuit challenging federal campaign finance laws that prohibit contributions of more than $5,000 per year to political committees as an unconstitutional violation of free speech and association rights.

In response, SpeechNow.org has filed a memo stating their opposition to the amicus. Bob Bauer at moresoftmoneyhardlaw.com considers this move a mistake on the part of SpeechNow. "SpeechNow, in short, has to engage with the issue, and win its case, on the level of constitutional principle and analysis, taking on all comers. This is why it is not the best of starts to attempt to dodge amici."

Campaign Legal Center and Democracy 21 argue that 527s' "track record of serving as conduits for large donors seeking to avoid the limits on contributions to the political parties — limits that were recently enacted by Congress, and upheld by the Supreme Court, to shut down the corrupt soft money system. . . . The Supreme Court has recognized that laws which prevent the circumvention of contribution limits thereby serve important governmental interests by protecting the integrity of the campaign finance laws." One interesting argument made in the amicus is that because SpeechNow donors want to donate more than the allowed limit of up, to 5,000 per year, an amount larger than what most Americans can afford, the speech of the public will be hurt.

Last week, members of the House Financial Services and General Government Appropriations Subcommittee held hearings to discuss the state of U.S. election administration, particularly the role of the Election Assistance Commission (EAC). The EAC was created as a bipartisan commission in 2002 with three primary goals: to develop guidance to meet the requirements of the Help America Vote Act (HAVA), to adopt voluntary voting system guidelines, and to serve as a national clearinghouse of information about election administration. It was not intended to be a regulatory agency.

In a statement released before the hearing, Committee Chairman José E. Serrano argued that the EAC has a critical role to play in ensuring that the 2008 elections are fair, stating,

"More than $3 billion has been appropriated over the past six years to improve election administration and voting systems. Even with this commitment of Federal resources, States continue to have critical, unmet needs relating to ensuring that their elections run smoothly. The need is not more apparent than in the case of providing states with secure, reliable, and accessible voting systems."

After other committee members expressed similar concerns at the hearing, EAC Chairwoman Rosemary Rodriguez defended the EAC, saying, "The expectations that we can insert ourselves into areas where the legislation doesn't allow it is something that I've encountered quite a bit…Everybody thinks that we can just solve all of the problems."

In her testimony before the committee, Wendy R. Weiser — Deputy Director of the Democracy Program at the Brennan Center for Justice— argued that more congressional oversight is needed to make sure the EAC operates in a more just and transparent manner. Weiser stated, "Although the EAC has taken steps to increase the transparency of its operations this year-especially by publicizing more information about the agency's operations on a regular basis-more can and should be done to foster public accountability and to regularize and standardize the agency's operations."

Also last week, the Office of the Inspector General released a "report assessing the EAC's program and financial management. Based on their analysis, the OIG made 3 recommendations:

• The EAC Executive Director should develop, document, and communicate short- and long-term strategic plans, performance, goals, and measures, to enable program offices to prioritize their tasks.
• Two standards of internal control — Risk Assessment and Control Environment — should be strengthened as soon as possible.
• Within each program office, the EAC needs to do a better job documenting governance and accountability standards.

A recent AP article highlights the issue of state voter lists and the problems these lists have caused during the presidential primaries. As required by the Help America Vote Act (HAVA), all states must develop a computerized database of registered voters. According to the article, Arizona, California, and New Mexico have all experienced problems with their voter lists.

According to the Brennan Center for Justice, voter rolls are being used to keep legitimate voters off the rolls because of states haphazard attempts to "match" voter information to information in other state databases, such as DMV records. When voter records do not match other state records, voters are often then improperly purged from the rolls, sometimes because of spelling mistakes, typos, or nicknames. States can avoid these mistakes, according to the Brennan Center, by adopting flexible standards for their matching process and technological safeguards.

For more information, see the Brennan Center's Policy Brief on Using Databases to Keep Eligible Voters Off the Rolls.

Posted by K Clabby, 09:54:29 AM

Wednesday, March 05, 2008