Appeals Court Panel Overturns Van Hollen v. FEC, Disclosure Laws on Hold for 2012 Cycle: Statement of J. Gerald Hebert, Executive Director


Today’s decision by the DC Court of Appeals is disappointing in that it will allow the continuing wholesale evasion of disclosure laws passed by Congress and upheld by the courts. At issue in this case is an FEC regulation that resulted in an almost complete failure by groups making “electioneering communications” to publicly disclose their contributors. 

The district court had found that the FEC had created a gaping loophole in the disclosure requirement when it issued a regulation in 2007 that required disclosure only of donors who had given “for the purpose of” funding “electioneering communications.”  Today’s decision sends the case back to the trial court, which had overturned the FEC regulation. The Court of Appeals has directed the lower court to provide the FEC an opportunity to revise the regulation in a rulemaking proceeding.  If the FEC fails to issue a new rule, then district court will decide whether the existing rule is arbitrary and capricious, as Representative Van Hollen has argued.

This order effectively means that there will be no disclosure of the donors funding the tens of millions of dollars being spent on political advertising by 501(c)(4) groups like Crossroads GPS and Priorities USA in the 2012 election cycle.  In the wake of this decision we are once again left with all of the unlimited spending unleashed by the Supreme Court’s Citizens United decision, but with virtually none of the disclosure promised by the narrow five Justice majority in the case. 

The Campaign Legal Center is part of the legal team representing Rep. Van Hollen in this case, which is led by Roger Witten of WilmerHale.  The legal team also includes lawyers from WilmerHale, Democracy 21 and Public Citizen. 

To read the order issued today, click here.