Windsor Brief: DOMA Affects Campaign Finance Laws

Mar 01, 2013, 13:00 ET from Caplin & Drysdale

WASHINGTON, March 1, 2013 /PRNewswire-USNewswire/ -- Members of Caplin & Drysdale's Political Law Group filed today a friend-of-the-court brief for a bipartisan group of former Federal Election Commission officials in U.S. v. Windsor, the high-profile U.S. Supreme Court case that challenges the Defense of Marriage Act's (DOMA) constitutionality.

The Brief describes how DOMA, when superimposed on to federal campaign finance law, legally bars married gays and lesbians from political expression and association opportunities that are afforded to other married citizens.  Specifically, DOMA has the following discriminatory effects on First Amendment rights:

  • Married gay and lesbian candidates who run for federal office may not fund their campaigns using personal resources that are available to other married candidates.  This is important, since over 40% of the 3,061 congressional candidates during the 2012 election cycle relied on personal resources to fund their campaigns.
  • Individuals in same-sex marriages may not attend certain political meetings or interact with certain political groups that are open to other married citizens.

Trevor Potter, who leads the firm's Political Law Group and signed the amicus brief as a former FEC Chair, remarked: "Sexual orientation should never affect any American's First Amendment right to free speech and association. Because of DOMA, though, discrimination is embedded in the very rules that shape political involvement.  The Brief informs the Court of this fact to aid its deliberations on the constitutionality of DOMA."  Windsor is scheduled to be heard before the Supreme Court on March 27, 2013. 

All amici signed in their individual capacities and not on behalf of any client or group.  Organizational names are listed for identification purposes only.  The six former Federal Election Commission officials who signed the friend-of-the-court brief are:

  • Craig Engle, former FEC legal counsel and current head of the Political Law Group at Arent Fox;
  • Kenneth Gross, former FEC legal counsel and current head of current head of the Political Law Group at Skadden, Arps, Slate, Meagher & Flom;
  • Robert Lenhard, former FEC Chair/Commissioner and current Political Law attorney at Covington & Burling;
  • Lawrence Noble, former long-time FEC General Counsel and current president of Americans for Campaign Reform;
  • Trevor Potter, former FEC Chair/Commissioner and current head of the Political Law Group at Caplin & Drysdale; and
  • Scott Thomas, former FEC Chair/Commissioner and current head of the Political Law Group at Dickstein Shapiro.

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