One Step Forward Two Steps Back

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Transparency advocates suffered a setback today, when the US Court of Appeals for the D.C. Circuit in Van Hollen v. FEC overturned an earlier ruling that favored transparency.

At issue is a provision of the Bipartisan Campaign Reform Act (also known as McCain/Feingold) that required disclosure of the names and addresses of every individual who contributed $1,000 or more to an individual or group that made an electioneering communication.

When it drafted its regulations on that provision of the law, the FEC took what was, to us anyway, clear disclosure language and narrowed it so that only the names and addresses of donors who specifically made contributions to the organization “for the purpose of furthering electioneering communications” would have to be disclosed. That opened a gaping loophole that prevented any disclosure of dark money contributions to groups airing political ads.

A lower court agreed that the language in BICRA was unambiguous and held that the FEC was wrong when it narrowed the situations to which disclosure applied. Unfortunately, the appellate court overturned the lower court’s ruling. It held that the statute’s language was less than clear, opening up the possibility that the FEC’s regulations might have been reasonable. The issue isn’t over, as the appellate court remanded the case back to the district court for further consideration.

The district court ruled in favor of transparency once, and we hope it will do so again. Congress made clear that the public deserves to know who is paying for its elections and it is not up to the FEC to obfuscate that information.

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