Van Hollen is mulling a second lawsuit that would target a separate set of FEC disclosure rules governing independent campaign ads by super PACs and other outside groups, which he said contain a similar loophole. “We are in the process of looking at our options” and will decide whether to proceed ‘‘very soon,’’ Van Hollen said.
Two conservative groups that intervened in the case, the Center for Individual Freedom and the Hispanic Leadership Fund, have requested a stay of Jackson’s decision and announced plans to appeal.
Lawyers for both groups have argued that the disclosure rules are a reasonable interpretation of the McCain-Feingold law, and that the Supreme Court’s Citizens United ruling, which deregulated corporate and union campaign spending, validates those regulations. The agency has 60 days to decide whether to appeal. No FEC commissioner responded to a request for comment.
The uncertainty has left interest groups unsure whether to follow FEC regulations as written or disclose more information about donors, in the spirit of Jackson’s decision. Some groups may wager that the FEC and the Justice Department, which also has jurisdiction over campaign finance, won’t prosecute violators without clear-cut federal standards.
Jason Torchinsky, an election lawyer representing the Hispanic Leadership Fund, said the mere fact the court invalidated the FEC disclosure rules will have a chilling effect and lead groups to pull issue ads. “It’s going to have the effect of stifling speech,” he said.
“To the degree that individuals view the election laws as murky, counterintuitive or the product of an Alice in Wonderland-like experience, the effect of this decision may serve to reinforce that view,” said a recent client memo circulated by Covington & Burling.
Paul Ryan, FEC program director and associate legal counsel at the nonpartisan Campaign Legal Center, said the agency should promptly update its rules instead of perpetuating confusion.
“Unfortunately, it’s highly unlikely that this dysfunctional commission will heed the court’s order anytime soon,” he said.
Frustration with the agency is mounting on and off Capitol Hill. Both reform advocates and House Democrats have called on President Barack Obama to replace several FEC commissioners whose terms have expired. Said Fred Wertheimer, president of the watchdog group Democracy 21: “We are finally reaching the breaking point with the Federal Election Commission.”