The case centers on FEC rules that state that restricted campaign donor disclosures are not valid and must be changed to provide for disclosure. Those rules require that any donors giving to groups spending money on “electioneering communications” or issue ads must only be disclosed if they specifically earmark their donation to that particular expenditure.
Donors rarely if ever mark their gifts for a specific election expense which means no meaningful disclosure exists.
The FEC rule was challenged as being outside the scope of the agency’s authority and in contravention to its charter from Congress.
Judge Amy Berman Jackson ruled that, “there is no question that the regulation promulgated by the FEC directly contravenes the Congressional goal of increasing transparency and disclosure in electioneering communications.”
“In sum, the Court finds that Congress spoke plainly, that Congress did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking, and that a change in the reach of the statute brought about by a Supreme Court ruling did not render plain language, which is broad enough to cover the new circumstances, to be ambiguous,” the ruling continued. “The agency cannot unilaterally decide to take on a quintessentially legislative function; if sound policy suggests that the statute needs tailoring in the wake of WRTL or Citizens United, it is up to Congress to do it.”
Election law advocates hope the ruling is the beginning of the end of a trend, started by the FEC rules and aggravated by the Citizens United decision, of an explosion of undisclosed election contributions and spending, though it is not entirely clear what happens next. An appeal is almost a given since any ruling that would result in real transparency will be fought as long as possible. But that puts the FEC in the awkward position of having to endorse the SuperPAC regime at a time when it’s politically difficult to do so. The FEC needs at least 4 of its 6 commissioners to vote for appeal.
The FEC also has the possibility of passing new rules here that put some teeth into disclosure, which would be the best choice for our democracy.
Whatever the course it will be years before this case is resolved, which means that while the move for election reform is very real, permanent, lasting change takes time.
Photo from Tom Lohdan via flickr.