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September 18, 2012  •  

Back to the FEC

Federal Election Commission

A federal appellate court has reversed a district court’s electioneering reporting decision, sending the issue back to the FEC.

The significance of today’s decision, pending further possible rule changes or court decisions, is that political contributors giving to an organization making an electioneering communication will not have to be disclosed to the FEC unless the donor specifically earmarks his or her contributions to fund electioneering communications.

This was the rule from 2007 until this spring when a district court ruled that all contributors giving over $1,000, regardless of whether they gave for the specific purpose of electioneering communications, had to be disclosed to the FEC.

In the initial lawsuit, Van Hollen v. FEC, the plaintiff,  U.S. Representative Van Hollen, claimed the FEC regulation 11 C.F.R. §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 requiring disclosure of all donors making contributions over $1,000.

In the spring, a U.S. district court agreed and declared 11 C.F.R. §104.20(c)(9) invalid and vacated the regulation. The court reinstated the FEC’s prior regulation, which was promulgated on December 17, 2002 and was in effect until December 25, 2007. The FEC had formally reiterated the district court’s requirement on July 27, 2012, retroactively applying the disclosure of donors to March 30, 2012.

Today, in Center for Individual Freedom v. Van Hollen, the U.S. Court of Appeals for the District of Columbia Circuit reversed Van Hollen v. FEC, vacated the district court’s prior judgment, and remanded the case to the district court. Presently, under the jurisdiction of the district court, the FEC must pursue rulemaking to address the issues brought by the lawsuit or defend 11 C.F.R. §104.20(c)(9) in court against the parties bringing the action.

This is a signature issue for Representative Van Hollen who will probably continue to vigorously litigate this issue.

The FEC has not publicly declared its next course of action.


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