Challenge to FEC on Disclosure Continues in New Lawsuit

By Kenneth P. Doyle

A federal judge who questioned Federal Election Commission rulings on campaign finance disclosure issues dismissed a motion claiming the FEC hasn’t complied with his orders, but the judge said he will eye a new lawsuit challenging dismissal of enforcement action against conservative nonprofit groups ( Citizens for Responsibility and Ethics in Washington v. FEC, D.D.C., Civil No. 14-1419, memorandum opinion and order 4/6/17).

The latest ruling by Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia came in a case filed by the liberal watchdog group Citizens for Responsibility and Ethics in Washington. CREW challenged the FEC’s dismissal—due to a deadlocked, party-line vote of FEC commissiners—of enforcement action against two nonprofit groups that keep their donors secret and have spent millions of dollars to help elect Republican candidates

One of the nonprofits, American Action Network (AAN), remains active in congressional elections. The other group, Americans for Job Security, has been dormant in recent elections.

AAN sought to appeal Cooper’s ruling, but the U.S. Court of Appeals for the District of Columbia Circuit ruled earlier this month that the case wasn’t ready for an appeal and must be resolved by the district court.

CREW to Continue Challenge

CREW indicated it would continue the court battle over disclosure.

CREW’s “unprecedented victory against the FEC for three commissioners’ obstinate refusal to enforce federal disclosure laws put us in unchartered waters,” Jordan Libowitz, the watchdog organization’s spokesman, said in a statement emailed to Bloomberg BNA. The FEC Republican commissioners “responded to the court’s judicial rebuke by once again failing in their duties, leading us to bring a new challenge,” he wrote.

The latest ruling clarified the legal path that the challenge should take: a new lawsuit against the FEC, Libowitz said.

“Anticipating that possibility, we filed suit against the FEC in November,” Libowitz said. “We expect to present our arguments against the FEC’s continued failure in that forum.”

The three Republican FEC commissioners acted “contrary to law” by dismissing enforcement cases against AAN and AJS, Cooper said in a ruling last September.

Many of the political ads the groups sponsored didn’t expressly advocate for the election or defeat of a candidate, the FEC Republicans said.

The judge said, however, that the FEC can’t categorically exclude ad spending from disclosure rules because the ads don’t contain express advocacy.

FEC Republicans Reconsidered Groups’ Ads

Following the September ruling, the FEC commissioners deadlocked again in a new vote on whether to take enforcement action against AAN. The Republican commissioners wrote a new statement, however, explaining their votes in light of the issues raised by the court.

In his latest ruling handed down April 6, Cooper said the new statement showed the Republican commissioners tried to address the issues he raised in the previous court ruling.

The judge also addressed the FEC action regarding AJS, but this part of the ruling was redacted because of ongoing enforcement action against that group. Earlier court filings had indicated that FEC reconsideration of AJS activities led the commission to reverse course and initiate some type of enforcement action against the organization. Details of the latest FEC action remain under wraps, however, because of FEC confidentiality rules regarding ongoing enforcement matters.

‘Never Ordered Particular Result.’

Regarding AAN, the judge’s ruling said he “never ordered the FEC to reach a particular result” on whether to take enforcement action. Instead, he said, he called for the FEC to take into account whether some of the ads aired by the conservative groups might be campaign-related, even if they didn’t directly call for votes for or against a candidate.

“The FEC did just that,” the judge said. He noted that the Republican commissioners’ revised statement found some ads sponsored by AAN were intended to influence campaigns, even though they didn’t contain words of express advocacy, such as “support” or “oppose.” The FEC Republicans, concluded however, that most of the AAN spending was for genuine “issue ads” addressing policy matters. Thus, the commissioners still concluded the nonprofit was exempt from disclosure rules.

Cooper noted that CREW argued the Republican commissioner’s revised explanation of their votes still misapplies campaign finance laws. These arguments will have be addressed in the new lawsuit, which the judge noted CREW already has filed.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at phendrie@bna.com

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