District Court Grants Summary Judgment Striking Down FEC Disclosure Rules That Spurred ‘Dark Money’ Abuses


Today in Van Hollen v. FEC, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia held that a Federal Election Commission (FEC) rule improperly narrowed the scope of the McCain-Feingold law’s disclosure requirements and allowed nonprofit 501(c)(4) advocacy groups, 501(c)(6) business associations, and others to spend millions on “electioneering communications” without disclosing their donors.

The suit was brought by Representative Chris Van Hollen (D-MD) in an effort to ensure that the “dark money” outside groups that have become increasingly active in federal elections are required to disclose their donors to the public.  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 and also includes lawyers from WilmerHale, Democracy 21 and Public Citizen. 

“The loophole opened by the FEC gutted the law passed by Congress and encouraged widespread abuse in the form of hundreds of millions of dollars of undisclosed ‘dark money’ ads,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “Neither Supreme Court precedent nor the underlying statute provided any justification for the FEC to adopt a rule narrowing disclosure.”

In a 46-page opinion, Judge Amy Berman Jackson deemed the rule promulgated by the FEC “arbitrary, capricious, and contrary to law” and an “unreasonable interpretation” of the McCain-Feingold law.  

On March 30, 2012, the district court ruled in favor of Rep. Van Hollen, holding that the FEC regulation was contrary to the clear language of the federal campaign finance statue it purported to implement.  On September 18, 2012, however, the D.C. Circuit Court of Appeals overturned the lower court decision, disagreeing that the federal statute was clear and holding that the district court should have instead analyzed whether the rule was a reasonable interpretation of the statute under a more deferential mode of judicial review.  The case was remanded back to the district court.

To read the opinion issued today, click here.