Supreme Court Again Comes Down On Side of Donor Disclosure, Denies Cert in Real Truth About Abortion

Today, the U.S. Supreme Court declined to grant certiorari in The Real Truth About Abortion v. FEC and left standing a lower court ruling upholding FEC rules governing donor disclosure.  The suit specifically challenged the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the FEC’s methodology for determining when a group has campaign activity as its “major purpose.” Both are key measures to ensure effective determinations of federal “political committee” status, and by extension, to implement the comprehensive disclosure requirements applicable to such political committees.

“The Supreme Court has once again come down in favor of transparency, recognizing the vital importance of the public’s right to know who is paying for the political advertising geared toward swaying elections,” Legal Center Senior Counsel Tara Malloy stated.  “Even in the highly controversial Citizens United case, the Supreme Court by an 8-1 vote was clear that disclosure of political spending is critically important to our democratic process.  The Real Truth case was part of an extensive nationwide litigation campaign seeking to undermine state and federal disclosure laws, but those attempts have repeatedly been beaten back in the courts.”

Today’s denial marks the end of the long-running proceedings which began as The Real Truth About Obama (RTAO) v. FEC in 2008.  The group originally challenged a number of FEC rules, including the rule implementing the electioneering communications funding restriction that was adopted after the Supreme Court’s 2007 decision in Wisconsin Right to Life v. FEC (11 C.F.R. § 114.15).   The district court and Court of Appeals upheld all of the challenged rules in 2008 and 2009.  Subsequent judicial decisions, most notably Citizens United, mooted much of the case, however.  Consequently, in April 2010, the Supreme Court vacated the 2009 Court of Appeals’ decision, and remanded the case for further consideration in light of Citizens United and “the Solicitor General’s suggestion of mootness.”  Upon remand, the district court again considered and rejected the two remaining claims relating to the “subpart (b)” definition of “expressly advocating” and the FEC’s “major purpose” methodology in June 2011.