FEC Disclosure Regulation Declared Invalid - State and Federal Communications

April 2, 2012  •  

FEC Disclosure Regulation Declared Invalid

U.S. Disctrict Court and FECA US District Court has declared a Federal Election Commission (FEC) regulation regarding disclosure for “electioneering communications” invalid.

The US District Court for the District of Columbia found FEC regulation 11 CFR §104.20(c)(9), which requires disclosure only of those making contributions over $1,000 to an entity for the purpose of furthering electioneering communications, contradicts the statute which requires disclosure of all donors making contributions over $1,000.

Concluding the FEC does not have the authority to narrow the disclosure requirement required by law, the Court declared the regulation invalid by granting the plaintiff, U.S. Representative Chris Van Hollen, summary judgment.

The FEC had argued for the need for the regulation after FEC v. Wisconsin Right to Life, Inc. (WRTL), which concluded corporations and labor organizations were permitted to make expenditures for electioneering communications that did not constitute express advocacy or its functional equivalent. The commission believed requiring only disclosure of funds earmarked for the purpose of furthering electioneering communications appropriately provided the public with adequate disclosure information.

Addressing this argument in the decision, District Judge Amy Berman Jackson wrote, “The [FEC] cannot unilaterally decide to take on a quintessentially legislative function; if sound policy suggests that the statute needs tailoring in the wake of WRTL or Citizens United, it is up to Congress to do it.”

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