September 4, 2020; The Brennan Center for Justice
Sometimes a court case turns on the use of a word. NPQ has written about this in a number of cases, and, once again, in August 2020, the DC Circuit Court brought a ruling on undisclosed donations based on the use of one grammatical article over another.
The case, CREW v. FEC, was led by plaintiffs Citizens for Responsibility and Ethics in Washington, a DC nonprofit that works to hold government officials accountable to ethics rules, campaign finance laws, and the Constitution. The defendant, the Federal Elections Commission (FEC), is charged with managing federal campaign finance laws, including transparency rules. This is not CREW’s first dance with the FEC. It has litigated with the government often; NPQ wrote about its 2019 victory on donor disclosures. But these are victories by inches in a system that moves by miles.
After eight long years in court, this case was based on a complaint filed at the FEC against Crossroads GPS, a group that had spent money secretly during the 2012 election. When there was no action coming from the FEC, CREW sued them and won in federal district court in in August 2018. This 2020 case is the decision on the appeal of that lower court opinion.
And the difference between “an” and “the” is embedded in this decision. The use of “the” had created a loophole in campaign finance law that allowed for $1 billion in undisclosed donations spending in federal elections in the last 10 years. But the issue for the court came down to what is the actual “controlling statute” of the FEC. The 1979 version of the Federal Election Campaign Act (FECA) requires disclosing the identity of anyone who contributes more than $200 toward ads that promote or attack political candidates. The key language in that statute from subsection 30104(c)(2)(C) requires independent expenditure makers to disclose “each person who made a contribution in excess of $200…for the purpose of furthering an independent expenditure.” (Note the use of the word “an.”)
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Fast forward to 1980. The FEC used language disclosing the identity only of persons whose contributions were “made for the purpose of furthering the reported independent expenditure.” (Note the use of the word “the.”) What this did was allow election lawyers that represented these secretive groups to claim (successfully) that they only had to disclose their donors if they had earmarked their funds for a particular ad. The FEC incorporated this approach, supporting undisclosed donations, in its instructions for forms that were used by contributors.
The court ruling in CREW v. FEC goes back to the 1979 statute as the controlling document. This means that “an” triumphs over “the.” This also means that donors will now need to disclose their role in underwriting political ads that attack or support candidates that meet the independent expenditure definition. No more secret cash used for these purposes.
This is a nonpartisan ruling. Cash is spent secretly by both Republican and Democratic groups and PACs. Open Secrets, a nonpartisan research group that tracks these funds, has stated that “more than $116 million in political spending and 2020 contributions can be traced back to ‘dark money’ groups aligned with Democratic or Republican party leadership.” With less than two months until the election, there is a lot at stake.
But all is not joy with this court ruling. Like so many agencies within this administration, the FEC is without a quorum for the second time in the 2020 election cycle. This could mean that the FEC might be delayed in complying with the DC Circuit Court’s wonderful decision in CREW v. FEC. This could mean that “the” will continue to reign over “an” during this election period. And, once again, undisclosed donations can creep in to influence our elections in spite of the federal court ruling.—Carole Levine