Rep. Van Hollen Files Brief in Court of Appeals in Support of Rule Requiring Immediate Disclosure of Donors to Groups Making Electioneering Communications

Rep. Chris Van Hollen (D-MD) today filed a brief in the Court of Appeals for the D.C. Circuit, arguing that the Court should not “stay” a district court ruling that struck down and vacated a Federal Election Commission regulation that improperly limited the disclosure of donors who fund “electioneering communications.” 

The Van Hollen brief was filed in opposition to a motion for a stay by two intervening parties in the case, the Hispanic Leadership Fund and the Center for Individual Freedom.

The Federal Election Commission is not appealing the March 30 district court ruling that struck down the FEC regulation.  The FEC has taken no position on the intervening parties’ requests for a stay.

Donald Simon, counsel to Democracy 21 and a member of the legal team representing Rep. Van Hollen, said, “The brief filed today by Rep. Van Hollen sets forth a strong argument for why the Court of Appeals should deny a stay and allow the district court ruling to take effect.  Under that ruling, groups funding electioneering communications will have to disclose the sources of funds they use to pay for their campaign ads.  That kind of transparency was required by Congress in the 2002 McCain-Feingold law, and upheld by the Supreme Court in both the McConnell case and the Citizens United case.  But full disclosure has been frustrated for years by an illegal FEC regulation.  The district court’s correct invalidation of that rule should be allowed to go into effect immediately.”

On Friday, the district court denied a similar motion for a stay filed by the same two groups.  In its ruling on Friday, the district court said that the intervenors have not demonstrated a likelihood of success on the merits and that “the public interest also favors a denial of the requested stay.”  The court said, “The public has a strong interest in the full disclosure mandated by the [statute].”

In the brief filed today, Rep. Van Hollen urged the Court of Appeals also to deny the request for a stay:

The public interest is a “uniquely important consideration” in evaluating a request for the extraordinary remedy of a stay pending appeal. . . . As the District Court recognized, the stricken regulation “does not comport with the Congressional purpose and intent behind campaign finance legislation:  to expose the parties behind the communications to the light.”  Van Hollen, 2012 WL 1066717, at *15 n.13.  Granting a stay and allowing the unlawful regulation to remain in place would thwart Congress’s plain intent in enacting BCRA § 201, thereby depriving the public of crucial information to which it is entitled under the law.  See Order Denying Stay 4 (“The public has a strong interest in the full disclosure mandated by the BCRA.” (citing Citizens United, 130 S. Ct. at 914-16)).

A ruling by the Court of Appeals on the motions for a stay is expected shortly.

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.  Other members of the Legal Team include attorneys for Democracy 21 and the Campaign Legal Center.

A copy of the brief filed today by Rep. Van Hollen can be found here.