September 18, 2018; Washington Post
“We’re about to know a lot more about who is funding our elections,” says Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington (CREW). Yesterday, the Supreme Court decided it would not intercede in a ruling by a federal judge to eliminate a Federal Election Commission (FEC) regulation that allows donor money to be kept secret. CREW, which brought the case, called it “a great day for democracy.” The original ruling will be appealed, but this will take time, and probably won’t happen before midterms.
The ruling closes a 40-year-old loophole that let individual donors to aggressive political ad campaigns remain anonymous. This means, according to FEC Chair Caroline Hunter, that for the first time in decades large donors to political campaigns through 501c4s (social welfare nonprofits) and 501c6s (association-based nonprofits) will need to be disclosed. It is anticipated that the measure may curtail major donor giving to candidates’ campaigns in the upcoming midterm elections, with the greater effect in the short term falling on conservative groups. The ruling applies to contributors of more than $200 a year to nonprofit advocacy groups.
CREW filed the complaint leading to this decision in 2012, asking that Crossroads GPS, a major conservative nonprofit, be required to disclose the names of donors behind a campaign run against Sen. Sherrod Brown (D-OH). The complaint was eventually dismissed three years later and CREW then sued the FEC in court. Federal Judge Beryl A. Howell ruled for CREW this year, writing that the FEC’s regulation “blatantly undercuts the congressional goal of fully disclosing the sources of money flowing into federal political campaigns, and thereby suppresses the benefits intended to accrue from disclosure.” She gave the FEC a month and a half to prepare to comply, during which time Crossroads GPS tried to get the Supreme Court to issue an emergency stay until an appeal can be heard.
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Meanwhile, no new rule has been written by the FEC, and advocacy nonprofits are left attempting to interpret what it may include so they can inform donors in the runup to the midterms. Some, like the Koch network, have established sister super-PACs as a workaround.
Still, Jessica Levinson, an election law professor at Loyola Law School, calls the original decision and the Supreme Court’s refusal to intervene a “huge win for the public.”
“[It] was a huge gaping hole in our system and it allowed for so much undisclosed money to be pumped through our electoral system. Disclosure is really all there is left,” Levinson says.—Ruth McCambridge