Summary Judgment Brief Filed in Van Hollen Suit Against FEC’s Ineffective Disclosure Rule

Last Friday, Representative Chris Van Hollen (D-MD) filed a summary judgment brief in his ongoing legal challenge to a FEC regulation that has improperly narrowed the scope of the McCain-Feingold law’s disclosure requirements and allowed nonprofit 501(c)(4) advocacy groups, 501(c)(6) business associations and others to spend millions on “electioneering communications” while keeping secret the donors who funded these ads. 

“In 2007, the FEC adopted a little-noticed regulation that gutted the McCain-Feingold disclosure requirements,” stated Tara Malloy, Campaign Legal Center Associate Counsel.  “The 2010 congressional elections made painfully clear exactly how damaging this new FEC rule was to political transparency.  In 2010, groups making electioneering communications disclosed the funders of less than10 percent of the $79.9 million spent on electioneering communications.”

As the summary judgment brief recounts, the McCain-Feingold Act requires persons, including corporations and other groups, that pay for “electioneering communications” to disclose “all contributors … of $1,000 or more,” or alternatively, to use a segregated account and to disclose all “all contributors … of $1,000 or more to that account.”  (Emphasis added.)  The challenged FEC rule, by contrast, requires corporations and labor organizations to disclose only those contributors who have affirmatively indicated that their contributions are “for the purpose of furthering electioneering communications.”  Because few contributors specifically designate their contributions for electioneering communications few, if any, contributors are subject to disclosure.  The regulation thus runs counter to the clear language and purpose of the statute, effectively allowing corporations and labor organizations to run “electioneering communications” without disclosing their contributors. 

Van Hollen challenges this FEC regulation as arbitrary, capricious and contrary to law under the Administrative Procedures Act.

“The disclosure loophole opened by the FEC has already allowed millions of secret dollars to influence our elections and the anonymous spending is only likely to increase in 2012.” Ms. Malloy said.  “But the American people deserve to have disclosure about the sources of the money being spent by corporations and other special interest groups to buy influence over government decisions.  We hope the court rules quickly in favor of Representative Van Hollen so that the McCain-Feingold disclosure requirements can be restored.”

The Campaign Legal Center is part of Representative Van Hollen’s pro bono legal team, led by Roger Witten of the law firm WilmerHale and Fred Wertheimer of Democracy 21.

To read the summary judgment brief and original complaint, click here.

To read further Legal Center commentary on the disclosure problems in the 2010 elections, click here.