Tuesday, September 18, 2012

Christopher Van Hollen, Jr. v. FEC

Sep 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5117. Appealed from the United States District Court for the District of Columbia. Appellee, Representative Christopher Van Hollen, Jr., brought a lawsuit challenging 11 C.F.R. § 104.20(c)(9), a regulation promulgated by the Federal Election Commission ("FEC"), that purports to implement § 201(f)(2)(F) of the Bipartisan Campaign Reform Act (BCRA), to require disclosure of "disbursement for the direct costs of producing and airing electioneering communications."
    The District Court granted summary judgment in favor of Appellee, because, in its view, in enacting 2 U.S.C. § 434(f)(2)(F), "Congress spoke plainly [and] did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking." Van Hollen, 851 F. Supp. 2d at 89. The Appeals Court said, "We disagree and reverse."
    The Appeals Court said, "After reviewing the record with care, we conclude that the District Court erred in holding that Congress spoke plainly when it enacted 2 U.S.C. § 434(f), thus foreclosing any regulatory construction of the statute by the FEC. The statute is anything but clear, especially when viewed in the light of the Supreme Court's decisions in Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 449 (2007). Furthermore, we do not agree with the District Court that the words 'contributors' and 'contributed' in 2 U.S.C § 434(f)(2)(F) cannot be construed to include a 'purpose' requirement, especially when it is clear that subsection (F) only applies to 'disbursement[s] for the direct costs of producing and airing electioneering communications.'"
    Common Cause President Bob Edgar issued a statement on the decision saying, "American voters are the big losers in today's federal appeals court decision permitting 'independent' groups to withhold the identities of the multi-millionaires and corporations investing in the 2012 elections. This decision dooms voters' last chang[c]e of finding out who is intent on pumping millions of dollars into the elections. With 49 days to go, there's still no sheriff in town, it's the wild, wild west. People and companies making six- and seven-figure investments in candidates and causes will want something in return for their money, and the candidates who benefit from their generosity will have a powerful incentive to deliver it. That's why disclosure is so important; before we go to the polls, voters should know to whom the candidates we choose will be beholden."
    Access the complete 5-page ruling (click here). [#All] [Editor's Note: This is obviously not an environmental case; it may impact environmental policy making.]
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