Statement of Democracy 21 Counsel Donald J. Simon on the Status of the Van Hollen Disclosure Litigation

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On March 30, 2012, the district court in Washington DC struck down an FEC regulation adopted in 2007 that limits disclosure of donors to groups that make “electioneering communications” – broadcast ads that refer to federal candidates in the pre-election period.  The ruling came in a lawsuit brought last year by Rep. Chris Van Hollen (D-MD), challenging the FEC rule as contrary to law. 

The 2002 Bipartisan Campaign Reform Act (BCRA) requires groups making electioneering communications to disclose “all contributors” of $1,000 or more.  But the FEC in 2007 adopted a regulation that required disclosure only of contributors who gave “for the purpose of furthering” an electioneering communication.  Under the FEC regulation, there has been little or no donor disclosure of the money used to pay for electioneering communications.

In its March 30 ruling, the district court found the FEC regulation was contrary to law, and invalidated it.  On April 26, the FEC announced that it would not appeal the district court decision. 

However, two non-profit groups which had intervened in the case – the Center for Individual Freedom and the Hispanic Leadership Fund – have appealed the district court ruling to the Court of Appeals for the D.C. Circuit.  Those groups have also asked both the district court and the Court of Appeals to “stay” the district court ruling until their appeal is resolved.

Today, the district court denied the motion for a stay.  In the court’s view, it’s decision is effective immediately.  The court said that the FEC’s current rule is invalidated, or vacated, and that the FEC’s pre-2007 disclosure regulation is now back in effect.  Under that rule, any group making an electioneering communication must report “the name and address of each donor who donated an amount aggregating $1,000 or more to the person making the disbursement” since the first day of the preceding calendar year.

The motion for a stay made to the Court of Appeals is still pending.

If the Court of Appeals denies the stay, it will mean that the donor disclosure rule requiring the disclosure “each donor” who donates $1,000 or more to a group making an electioneering communication will be immediately  in effect.

Rep. Van Hollen is represented in this case by the  Democracy 21 Legal Team, headed by Roger Witten, a partner at the law firm of WilmerHale.