Full Court Won’t Review FEC Disclosure Decision

Posted September 15, 2003 at 6:41pm

A federal appeals court has decided against reviewing a decision that bars the Federal Election Commission from releasing detailed information from closed cases that the agency has investigated.

The FEC had asked the full U.S. Court of Appeals for the D.C. Circuit to revisit a June decision by a three-judge panel that curtailed a 25-year-old FEC practice of virtually unlimited disclosure for enforcement records.

The full court unanimously denied the FEC request without comment in an order dated Sept. 5 but not publicly disclosed until Sept. 12.

The FEC has not yet decided whether to take the next step in the appeals process and ask the Justice Department to appeal the ruling to the Supreme Court, according to an agency spokesman.

The AFL-CIO challenged the policy in a lawsuit after the FEC began to publicly release portions of a lengthy investigation into the union’s political operation during the 1996 election.

In June, U.S. Circuit Judge David Tatel held that “the regulation, though not contrary to the plain language of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups’ strategic documents and other internal materials.”

Tatel’s decision, which was supported by the two other panel members, left open the possibility that the FEC could revise its disclosure rules to account for First Amendment concerns.

The Campaign Legal Center, a group headed by former FEC Chairman Trevor Potter, is leading an effort to draft a set of new disclosure rules for the FEC’s consideration.

The group, along with the National Voting Rights Institute and the Center for Responsive Politics, argued that the court’s ruling would dramatically undermine Congress’ interest in close public oversight of FEC actions.

In a legal brief, the groups contend that by cloaking in secrecy the factual record on which the commission bases its enforcement decisions, the June decision would cripple attempts to ensure that the agency is properly enforcing the law.