Funders of Electioneering Communications Must be Revealed: Appeals Court Denies Stay

Late yesterday, a three-judge panel of the D.C. Circuit Court of Appeals denied a motion to stay a lower court ruling in Van Hollen v. FEC that requires comprehensive disclosure of funders for groups making “electioneering communications.”  Millions of dollars have already been spent this cycle on electioneering communications and those funding them will now have to be revealed.

“This is a huge victory for voters, for disclosure, and for democracy because Americans deserve to know who is trying to buy results in our  elections,” said Trevor Potter, Campaign Legal Center President.  “This decision is an important step towards fulfilling the Supreme Court's promise in Citizens United that all spending in our elections will be fully disclosed -- disclosure that has been frustrated until now by the FEC.”

The case was brought by Representative Chris Van Hollen (D-MD) to challenge a 2007 FEC regulation that narrowed the scope of federal disclosure requirements connected to electioneering communications. On March 30, 2012 the district court granted summary judgment for Van Hollen and struck down the regulation, holding that it was arbitrary, capricious and contrary to the federal campaign finance statute it purports to implement.

“Electioneering communications” are broadcast advertisements that name a candidate and air within 30 days of a primary election or 60 days of a general election.  Groups making electioneering communications are now required to disclose all their donors of more than $1,000 or establish and use a segregated fund for electioneering communications.

“The FEC gutted the law passed by Congress to the point that compliance with it became optional,” added Potter.  “Assuming these Court decisions hold, funding of many of these electioneering communication ads will no longer be secret.  That is not the end of the legal road--the FEC regulations of funding of "independent expenditure" advertising still contain loopholes that are contrary to the disclosure mandated by Congress--but this is an important step towards full disclosure."

On April 26, 2012, the FEC announced that it would not appeal the district court decision.  However, the two corporate funded non-profit groups that have intervened in the case appealed the decision to the D.C. Circuit Court of Appeals and moved both the district court and the Court of Appeals to stay the district court decision pending their appeal.  On April 27, 2012, the district court denied the motion for a stay.

The Legal Center and Democracy 21 are part of Rep. Van Hollen’s pro bono legal team, led by Roger Witten of the law firm WilmerHale.

To read the Circuit Court’s order, click here.

To read the District Court filings and decision, click here.