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While Van Hollen failed to convince the appeals court that the FEC rules clearly contradict the law, he still has an opening to argue that the FEC regulations are "arbitrary and capricious," a standard established by a Supreme Court case known as Chevron USA v. Natural Resources Defense Council Inc.
The appeals court has now ordered the district court to require the FEC to "promptly" take one of two actions: either rewrite its disclosure regulations or come before the court to defend them. An FEC spokeswoman said only that "the commission is reviewing the decision."
"The court is affirming our view that the statute is not as clear as Congressman Van Hollen said it was," said Jason Torchinsky, a partner with Holtzman Vogel Josefiak who is representing the Hispanic Leadership Fund.
Van Hollen called the appeals court ruling a "blow to transparency." He said he and other disclosure advocates will continue to examine their options, and he expressed hope that the FEC will issue a new disclosure rule in line with the law.
"The Court of Appeals' decision today will keep the American people, for some time being, in the dark about who is attempting to influence their vote with secret money," Van Hollen said in a statement.
"It's a disappointment," said Paul Ryan, senior counsel with the Campaign Legal Center, which sided with Van Hollen in the challenge. "The Campaign Legal Center has found fault with this FEC regulation from day one."
But in practical terms, Ryan added, the appeals court ruling may not dramatically affect disclosure in the weeks that remain before Election Day.
"The bottom line here is that outside spenders have shown a willingness to bend over backwards to hide their supporters from the American voters," he said. "And there is no reason to think they won't continue doing the same thing."