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On the other hand, political players may be emboldened by the FEC’s growing reputation as a stalemated agency that fails to aggressively enforce election laws, said Tara Malloy, senior counsel for the Campaign Legal Center, which along with Democracy 21 has worked with Van Hollen on his legal challenge.
“The statute is pretty clear that all donors have to be disclosed,” Malloy said. But she added that some politically active groups might be prepared to play what she called “FEC Russian roulette,” wagering that the agency will fail to act if outside players don’t fully report who’s paying for their electioneering communications.
The appeals court’s ruling is “not the end of the legal road,” Campaign Legal Center President Trevor Potter noted. Van Hollen is planning another legal challenge to the FEC’s disclosure regulations for independent campaign expenditures, which he argues are also too narrow and contain similar loopholes. Such expenditures take the form of explicit campaign ads run by groups such as unrestricted super PACs.
Van Hollen’s first victory over electioneering communications came on March 30, when U.S. District Court Judge Amy Berman Jackson upheld his challenge and ordered the FEC to rewrite its disclosure rules.
The FEC did not appeal, but a pair of conservative nonprofits that had intervened in the case — the Center for Individual Freedom and the Hispanic Leadership Fund — filed their own appeal and requested a stay.
The appeals court’s three-judge panel rejected that stay, signaling that the more stringent rules that Van Hollen had defended now stand. The two groups requesting the stay “provided no evidence that their contributors ‘would face threats, harassment, or reprisals if their names were disclosed,’ and thus they fail to demonstrate how the disclosure requirements ‘prevent [them] from speaking,’” wrote Court of Appeals Judges Judith Rogers and Thomas Griffith.
The judges also cited arguments in favor of disclosure that the Supreme Court made in both the McConnell v. FEC ruling that upheld the Bipartisan Campaign Reform Act and in the Citizens United ruling that rolled back restrictions on independent corporate and labor spending.
A final decision on the Van Hollen challenge is not expected for several months, and some speculate that the case will eventually make its way to the Supreme Court.
“I expect this stay request to now end up before the Supreme Court, where the outcome may be different,” wrote Richard Hasen, a professor of law at the University of California, Irvine, on his election law blog.