Statement of Democracy 21 President Fred Wertheimer on D.C. Court of Appeals Ruling in Van Hollen Case

A three-judge panel of the D.C. Circuit Court of Appeals today overturned the federal district court ruling in Van Hollen v. Federal Election Commission which had struck down an FEC regulation that resulted in an almost complete failure by groups making “electioneering communications” to disclose any of their contributors to the public.

The District Court had ruled that the law enacted by Congress in 2002 was clear and unambiguous in requiring groups making “electioneering communications” to disclose their donors. The district court also ruled that the FEC had created a huge loophole in the disclosure requirement by issuing a regulation in 2007 that required disclosure only of donors who had given “for the purpose of” funding “electioneering communications.” No “for the purpose” requirement is stated in the statute.

The FEC regulations have allowed massive evasion of the contribution disclosure requirement by allowing donors to make their contributions that fund “electioneering communications” simply without stating any purpose for the contribution. As a result, groups have spent hundreds of millions of dollars on “electioneering communications” while the big-money donors funding these expenditures are hidden from the American people.

The decision today by the Court of Appeals panel wrongly reinstates the flawed FEC regulation, pending further proceedings before the district court. The Court of Appeals also said the FEC should have an opportunity to revise the regulations by rulemaking. If the FEC chooses not to issue a new rule then the district court is to decide whether the existing rule is arbitrary and capricious, as Representative Van Hollen has argued.

Representative Chris Van Hollen (D-MD) is represented in the case by the Democracy 21 legal team, led by Roger Witten of WilmerHale, and including lawyers from WilmerHale, Democracy 21 and Public Citizen.  Lawyers from the Campaign Legal Center also participated in the case.