D.C. Circuit Lets Political Donors Stay Secret

By Robyn Hagan Cain on September 19, 2012 | Last updated on March 21, 2019

A D.C. Circuit Court of Appeals panel ruled on Tuesday that 501(c)(4) organizations don't have to disclose the contributors who fund their "issue ads" during election cycles, reports CNN.

The decision upholds a Federal Elections Commission (FEC) rule providing that only those contributors who assent, in some reasonable way, to support an organization's electioneering must be disclosed to the public, National Review explains.

The challenge grew out of FEC rules promulgated under the Bipartisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act.

The BCRA requires that every person who "makes a disbursement" for the costs to produce and air more than $10,000 of "electioneering communications" file certain disclosures with the FEC. The challenged rule, 11 C.F.R. § 104.20(c)(9), states if the disbursements were made by a corporation or labor organization, the disburser must disclose the name and address of each person who donated $1,000 or more to the corporation or labor organization for the purpose of furthering electioneering communications in a calendar year.

Rep. Chris Van Hollen argued that the rule violated the BCRA, which plainly requires every "person" who funds "electioneering communications" to disclose "all contributors." Van Hollen claimed that there were no terms limiting that requirement to the names of those who transmitted funds accompanied by an express statement that the contribution was intended for the purpose of funding electioneering contributions.

A district judge agreed with Van Hollen in March, concluding the McCain-Feingold Act "spoke plainly" in preventing the agency from limiting the disclosure requirement.

Tuesday, the D.C. Circuit reversed that ruling, finding that the BCRA language wasn't so plain after all. The appellate court concluded, "The statute is anything but clear, especially when viewed in the light of the Supreme Court's decisions in Citizens United v. FEC and FEC v. Wis. Right to Life, Inc.

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