Last week, the appeals court panel rejected that request for a stay, handing Van Hollen and his allies their first decisive victory in the wake of Citizens United. The ruling applies only to electioneering communications, defined as ads that picture or name a candidate 30 days before a primary or 60 days before a general election.
The decision is a blow to politically active groups such as the U.S. Chamber of Commerce and the GOP-friendly nonprofit known as Crossroads Grassroots Policy Strategies. Both groups are already spending millions on ads that picture and name candidates but that don’t call for their election or defeat, allowing them to empty their coffers on “educating” voters without triggering disclosure rules that apply to campaign ads.
As of now, those ads don’t qualify as electioneering communications because it’s not yet the eve of a primary or a general election. But the presidential primaries — which for both nominees will be triggered by their major party nominating conventions — are not far off. Ads that run 30 days prior to those conventions will be subject to the strict disclosure rules triggered by the ruling. That window starts in late July for Republicans and early August for Democrats.
A Crossroads GPS spokesman declined to comment. A spokeswoman for the chamber, which has opposed disclosure legislation as partisan and politically motivated, said the ruling will not block the trade group from getting its message out.
“We’re disappointed by the court of appeals’ refusal to stay the lower court’s decision, thereby changing the rules of the road in the middle of an election cycle,” said chamber spokeswoman Blair Latoff, responding via email. “The decision, however, will not deter the chamber from educating voters on the issues important to the business community, which are economic growth and jobs.”
However they proceed, trade and advocacy groups face more risks ahead. Van Hollen is considering a second lawsuit challenging the FEC rules for independent campaign expenditures. Reform advocates will soon file a new round of complaints with the IRS against Crossroads GPS and other nonprofits, said Fred Wertheimer, president of Democracy 21. Disclosure legislation may also reach the Senate floor as early as June, he said.
The push for disclosure affects not just big-spending, controversial groups such as the chamber and Crossroads GPS, but smaller players who say they represent average citizens. All find themselves in uncertain new territory.
“I don’t expect that this is going to shut down political spending — not by far,” said Lawrence Norton, co-chairman of the political law practice at Venable LLP. “But I do think you’ll see groups trying to accommodate the ruling and structure their ads and their governance in a way that allows them to be on the airwaves and to get their message out.”