September 18, 2012; Source: Washington Post (AP)

Welcome to the most secretive and most moneyed election in American history, thanks to a decision yesterday by the U.S. Court of Appeals for the District of Columbia. Remember our coverage of a U.S. District Court ruling this past spring about the Federal Election Commission overstepping its authority in allowing 501(c)(4) social welfare organizations to keep their donors secret? That was a case brought by Congressman Chris Van Hollen (D-MD). It seemed like it might be possible, if the ruling held, to stanch the flow of unrestricted secret money into “independent” election organizations.

But no, the Appeals Court said that the District Court’s argument – that the McCain-Feingold campaign finance law was clear that requiring donors to these organizations to be identified not just for their specific support of attack ads, but for their donations of unrestricted moneys – was wrong. The Appeals Court ruled that the law was not at all clear on that point and that the FEC ruling to allow the sources of unrestricted funds to be kept secret was filling a gap in the law.

Making the situation worse was that two organizations, the Center for Individual Freedom and the Hispanic Leadership Fund, appealed the lower court decision, but the Federal Election Commission didn’t. That gave the appeals court the opening to say that without the FEC weighing in on some of the issues raised by the appellants, it couldn’t understand what the FEC intended.

Let’s be clear about what just happened. Using the hoary excuse that disclosure of donors would be an administrative burden, groups like the two appellants convinced the FEC to rule that disclosure should be limited only to those donors whose moneys were specifically targeted to election attack ads. So, “administrative burden” trumped the needs of the democratic process for disclosure of who is buying and selling elections. The slight chance that the District court ruling might have tamped down the secret money torrent with some possible effect even in this election cycle is out the window because of “administrative burden.”

Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington, issued a statement that sums up everything you need to know: “Today’s decision by the D.C. Circuit Court overturned one of the few glimmers of hope in campaign finance disclosure law,” Sloan said. “Voters are being pummeled by campaign ads with no way to discover who is really trying to influence our elections.” The CREW statement added an even more distressing observation: “Given the feckless nature of the FEC, CREW is highly skeptical that the agency will revise the regulations in any meaningful way to provide voters with the disclosure they deserve.”

Last week the NPQ Newswire wrote about the dysfunctional dynamic in Congress as members of both houses skipped town rather than acting on issues of critical public importance. We wouldn’t be surprised if the commissioners of the FEC and the three judges on the appeals court panel that issued this ruling in Van Hollen v. FEC weren’t on the same planes and trains with them. –Rick Cohen