On March 30th, D.C. District Court Judge Amy Berman Jackson ordered the Federal Election Commission (FEC) back to the drawing board with instructions to rewrite disclosure regulations enacted after 2010’s Citizens United decision. According to Eliza Newlin Carney of Roll Call, “At issue is whether trade associations or tax-exempt advocacy groups must report the donors behind the issue ads known as electioneering communications. Such ads picture or name a candidate on the eve of an election but stop short of urging for a vote for or against the individual.”
The decision has led to confusion about what happens now in terms of disclosure regulation compliance while awaiting response from the FEC, a bi-partisan commission given to deadlock. However there are some actors who are quite clear in their next steps: Rep. Chris Van Hollen (D-Md), who brought the suit to the District Court, is, according to Carney, considering a second suit targeting other FEC rules dealing with independent campaign ads by super PACs and other outside groups. There are also those fighting to remind the Court that the recently jettisoned regulations were a reasonable interpretation of the Citizens United decision. From Roll Call:
Two conservative groups that intervened in the case, the Center for Individual Freedom and the Hispanic Leadership Fund, have requested a stay of Jackson’s decision and announced plans to appeal.
Lawyers for both groups have argued that the disclosure rules are a reasonable interpretation of the McCain-Feingold law, and that the Supreme Court’s Citizens United ruling, which deregulated corporate and union campaign spending, validates those regulations. The agency has 60 days to decide whether to appeal. No FEC commissioner responded to a request for comment.
The uncertainty has left interest groups unsure whether to follow FEC regulations as written or disclose more information about donors, in the spirit of Jackson’s decision. Some groups may wager that the FEC and the Justice Department, which also has jurisdiction over campaign finance, won’t prosecute violators without clear-cut federal standards.
Jason Torchinsky, an election lawyer representing the Hispanic Leadership Fund, said the mere fact the court invalidated the FEC disclosure rules will have a chilling effect and lead groups to pull issue ads. “It’s going to have the effect of stifling speech,” he said.
The Center for Competitive Politics has released a statement on the issue, noting that the ruling would require disclosure of contributions from those who may not have given specifically to fund campaign ads.
“After it lost the Wisconsin Right to Life case, the FEC faced a difficult job drafting these regulations and struck a reasonable balance,” said Chairman Brad Smith. “There’s a reason why judges typically grant deference to the agency which administers a statute. Under Judge Jackson’s interpretation, it appears that persons who specifically gave for reasons other than to support ads will now be associated with having given for particular ads. And in some cases persons who give for communications that are unrelated to elections will face more disclosure than persons who give to groups that specifically advocate the election or defeat of candidates.”
