In a decision that could force disclosure of some of the secret money flooding into elections, a federal judge ruled Tuesday that groups that run election-related ads must reveal their donors.
The Federal Election Commission overstepped when it wrote a 2007 rule that said such groups didn’t have to report the source of the money for certain types of political ads that mentioned the name of federal candidates, the decision by U.S. District Judge Amy Berman Jackson in Washington said.
That rule, combined with later court decisions such as the Supreme Court’s ruling in the Citizens United case in 2010, helped open the gates to a flood of so-called dark money spending by nonprofit organizations that don’t reveal the source of their funds. There was more than $140 million in such spending in the 2014 election.
Campaign reform groups welcomed Jackson’s decision, even as they said they expect an appeal.
“We are seeing a full-throated endorsement of disclosure by the lower courts,” said Tara Malloy, senior counsel for the Campaign Legal Center, one of the pro-transparency groups that intervened in the case. “We are enjoying the victory, though I am sure the fight will continue.”
The decision concerns a type of issue ads that became ubiquitous in recent elections. Typically, the ads suggest that voters call a senator or congressman and give an opinion about something. When those ads mention a candidate and are run close to elections, they’re known as “electioneering” communications, and the amount of spending has to be reported.
In the rule, the FEC said it was too much to ask that the groups report their donors, too. The divided agency narrowed the disclosure rules in a law called the Bipartisan Campaign Reform Act.
Because of the tangled state of federal campaign finance regulation, the practical effect of the ruling might be limited. Ads that explicitly say people should vote for or against a candidate are regulated differently; groups can also spend on those types of ads without revealing donors.
Conservative legal organizations argue it’s wrong for the government to force groups that take controversial opinions to reveal donor names. “Some people are fine with it, but others are not,” said David Keating, president of the Center for Competitive Politics, which argues for fewer restrictions on campaign spending. “It will be harder to speak out.”
The judge rejected that position. “The fact that some contributors “just don’t want their names known” does not provide grounds to override a clear congressional choice in favor of transparency,” Jackson’s decision said.
Rep. Chris Van Hollen (D-Md.), who sued the FEC over the rule, called the decision “a victory for democracy” and said it will help give voters the information they “deserve in determining who is trying to influence their votes.”
Jackson had struck down the rule once after Van Hollen sued; the FEC did not appeal, but two outside-spending groups did. The appeals court sent it back to Jackson for another review, saying the intent of the law wasn’t clear.
Jason Torchinsky, lawyer for Hispanic Leadership Fund, one of the groups opposing Van Hollen, said the group will review the decision and decide whether to appeal. “This would be a groundbreaking set of disclosure rules for speech – if it holds,” he said.