The decision acknowledged the murkiness of federal election laws governing advertising. Court: Group donors can be secret

A federal appeals court on Tuesday overturned a lower court decision that could have forced the disclosure of the donors behind some of the secret money groups flooding the airwaves with attack ads.

In a decision that acknowledged the murkiness of federal election laws governing campaign advertising, the United States Court of Appeals for the District of Columbia Circuit ordered the Federal Election Commission to either clarify its rules or to defend the existing ones.


“The statute is anything but clear,” Tuesday’s decision reads, particularly given the Supreme Court’s decisions in the Citizens United case in 2010 and a 2007 decision that prompted the FEC to write the rules in question. The rules require the disclosure of the donors behind such ads only when they give for the express purpose of airing electioneering communications, which mention candidates’ names, but don’t expressly urge a vote for or against them.

Rep. Chris Van Hollen (D-Md.) in a 2011 lawsuit against the FEC alleged the rules were too lax when it came to mandating the disclosure of the donors behind such ads. They created a giant loophole through which non-profit groups registered under section 501(c) of the tax code could air attack ads in the weeks leading up to Election Day without disclosing their donors’ names, Van Hollen contended.

The District Court ruled in Van Hollen’s favor in March, but the decision was appealed by a pair of conservative groups, the Center for Individual Freedom and the Hispanic Leadership Fund intervened.

“We’re very pleased with the outcome of the decision and we’re looking forward to further proceedings to resolve the outstanding issues,” said Jason Torchinsky, a lawyer for the Hispanic Leadership Fund.

The FEC did not immediately respond to questions about whether they would appeal the decision. Van Hollen issued a statement saying he would “continue to examine all of our options as we move forward,” and asserting the decision “will keep the American people, for the time being, in the dark about who is attempting to influence their vote with secret money.”

Fred Wertheimer, president of Democracy 21, the non-profit group that represented Van Hollen in the case and pushes for stricter regulations on money in politics, issued a statement decrying Tuesday’s ruling.

“The FEC regulations have allowed massive evasion of the contribution disclosure requirement by allowing donors to make their contributions that fund ‘electioneering communications’ simply without stating any purpose for the contribution,” read the statement from Wertheimer.”As a result, groups have spent hundreds of millions of dollars on ‘electioneering communications’ while the big-money donors funding these expenditures are hidden from the American people.”