A Win for Transparency: Judge Holds Campaign Spending Doesn’t Just Mean “Express Advocacy”

Gavel resting on stack of money

In big news, a federal judge has ordered the Federal Election Commission (FEC) to do its job, and ensure that our political process is more open and transparent. 

The FEC had previously dismissed complaints against American Action Network (AAN) and Americans for Job Security (AJS), two tax-exempt 501(c) groups that ran millions of dollars of political ads in the 2010 election. In response to a complaint filed by Citizens for Responsibility and Ethics in Washington (CREW) against the groups, the FEC deadlocked on whether to start an investigation, with three commissioners finding that neither group had run enough “expressly advocacy” ads to be considered a “political committee” subject to federal requirements to reveal their donors.

Today, U.S. District Court Judge Christopher R. Cooper strongly rejected this decision.  He found that campaign-related spending is not limited to express advocacy, and returned the case to the FEC for further consideration of whether AAN and AJS are indeed political committees.

This is a huge victory for transparency and hopefully a wake-up call for the FEC to more fairly analyze complaints calling for disclosure of 501(c) groups’ election-related communications. Campaign Legal Center’s federal regulatory program has filed almost a dozen complaints calling for better disclosure by groups active in federal elections, and we are litigating a case in the D.C Circuit Court of Appeals, Van Hollen v. FEC, arguing that a 2007 FEC regulation has improperly narrowed the scope of federal disclosure requirements connected to electioneering communications.

The one concern raised by Judge Cooper’s decision, however, is how exactly the FEC will analyze CREW’s case on remand. The court rejected the FEC’s narrow “express advocacy” standard, but unfortunately refrained from “replacing the Commissioners’ bright-line rule with one of its own.” One can hope that the FEC will adopt a more reasonable standard now that it has a second chance to enforce the law. But given the Commission’s woeful track record of enforcement, it will likely be necessary for watchdog groups to stay vigilant to ensure that the FEC demands the disclosure that the federal campaign finance laws clearly require. 

Tara is CLC's Senior Director, Appellate Litigation & Strategy.