FEC Wins Case, But D.C. Circuit Decision Promises More Disclosure Battles To Come

The FEC was the winner yesterday in the D.C. Circuit’s decision in Stop This Insanity Inc. Employee Leadership Fund v. FEC, and the connected PAC (SSF) rules survived intact, even as the court referred to those rules as a “statutory artifact,” and labeled SSFs “functionally obsolete,” “idiosyncratic and outmoded,” and an “oddity … in the wake of” Citizens United.

Much of the press coverage focused on the decision’s Rolling Stones references, and those who commented on the actual opinion generally reported a sweeping FEC victory.

 

But what the court actually had to say about disclosure will almost certainly fuel future challenges to the FEC’s defense of existing regulations:

“Although McCutcheon intimates disclosure is an obvious antidote to corruption and so appropriately included within the anticorruption rationale, the correlation is not self-evident and disclosure cannot be reflexively substituted as the Commission’s raison d’etre. Not every intrusion into the First Amendment can be justified by hoisting the standard of disclosure.”

– D.C. Circuit, August 5, 2014, Stop This Insanity Inc. Employee Leadership Fund v. FEC

 

This language is especially interesting in light of what three Commissioners wrote less than a week before:

“[T]he entire purpose of the political committee status test boils down to a single, compelling policy interest: disclosure. Disclosure of donors and political spending is crucial. . . . Dark money is an increasing problem. The FEC’s mission is to ensure that voters receive the information they need – the information that the Supreme Court has said they are entitled to – in order to make informed decisions.”

– Three FEC Commissioners, MUR 6538/6589, July 30, 2014