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Van Hollen v. FEC

The Brennan Center and other amici argued that FEC exceeded its statutory authority by creating a loophole allowing outside groups to circumvent federal disclosure requirements.

Published: August 1, 2012

Summary of the Case: The Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold, tightened campaign finance disclosure requirements by requiring all groups that spend more than $10,000 per year on electioneering communications to disclose “all contributors who contributed an aggregate amount of $1,000 or more.”

Despite the unambiguous language of the statute, in 2007, the Federal Election Commission (FEC), which is charged with enforcing campaign finance law, interpreted the disclosure requirement to apply only to donors who specifically designate their contributions “for the purpose of furthering electioneering communications.” By adding an additional “purpose” requirement regarding what donors had to be disclosed, the FEC’s rule opened a large loophole in the federal disclosure requirements, allowing donors to outside groups to avoid disclosure requirements simply by refraining from earmarking their donations for a specific electioneering purpose.

Congressman Christopher Van Hollen (D-MD) sued the FEC, arguing that the agency exceeded its statutory authority by opening this loophole and narrowing the scope of McCain-Feingold’s disclosure requirements. The D.C. District Court found that the FEC had erred, ruling that “[t]he agency cannot unilaterally decide to take on a quintessentially legislative function.”

The FEC declined to appeal the ruling that struck down its loophole-riddled rule, but Defendant-Intervenors Hispanic Leadership Fund and Center for Individual Freedom appealed the decision to the D.C. Court of Appeals.

Summary of Brennan Center’s Amicus Argument: The Brennan Center for Justice joined amici AARP, Center for Media and Democracy, Citizens for Responsibility and Ethics in Washington (CREW), Common Cause, League of Women Voters, Progressives United, and the Sunlight Foundation, arguing that the FEC exceeded its statutory authority in narrowing McCain-Feingold’s disclosure requirement.

The brief dismisses the appellants’ argument that the FEC acted in order to ensure the constitutionality of the disclosure regulations, arguing that the Supreme Court emphatically upheld the disclosure provisions by an 8–1 vote in Citizens United v. FEC, only the most recent in a long line of decisions upholding the constitutionality of campaign finance disclosure.

Finally, the brief demonstrates that the FEC has had a meaningful and deleterious policy effect, finding that only 15 percent of electioneering communications reports filed with the FEC disclosed the names of donors in 2010, after promulgation of the rule, compared to 71 percent in 2004, before its adoption.

The District Court’s decision can be found here.

The amicus brief joined by the Brennan Center can be found here.