Conservative Group Appeals Ruling on FEC Enforcement

Money & Politics Report provides comprehensive behind-the-scenes coverage of campaign finance, lobbying, and government ethics issues at the federal, state, and local levels.

By Kenneth P. Doyle

Oct. 19 — The conservative nonprofit American Action Network (AAN) is appealing a federal district court decision reviving a Federal Election Commission enforcement complaint charging the group violated campaign finance law by refusing to disclose its donors ( Citizens for Responsibility and Ethics in Washington v. FEC, D.D.C., No. 14-cv-1419, memorandum opinion 9/19/16

AAN filed a notice of appeal in the U.S. District Court for the District of Columbia after the six FEC commissioners apparently deadlocked in deciding how to respond to the court decision. The FEC commissioners, including three recommended by Democrats and three Republicans, have been deeply divided over how to handle disclosure matters.

The court remanded to the commission the AAN matter and another enforcement complaint involving another nondisclosing conservative group, Americans for Job Security. Judge Christopher Cooper set an Oct. 19 deadline for the FEC to reconsider the case, but no action was announced by the FEC late that day.

Earlier, the FEC commissioners had deadlocked 3-3 along party lines in a vote on whether to appeal Cooper's decision remanding the enforcement complaints, which were filed by the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) (4358 Money & Politics Report, 10/5/16).

CREW Filed Court Challenge

When the FEC dismissed its complaints following the deadlocked, party-line votes of the commissioners, CREW filed the court challenge to the FEC's failure to take enforcement action.

The conservative groups have spent millions of dollars on political ads favoring Republicans since 2010 without disclosing any of their donors. CREW charged that the groups violated FEC rules requiring any organization with a “major purpose” of influencing elections to register with the FEC and report its donors.

Cooper's Sept. 19 ruling remanded the enforcement complaints involving AAN and AJS to the FEC and required the commission to complete a new review of the matters within 30 days. The judge did not say the agency had to take enforcement action against the conservative groups, but he indicated the FEC commissioners had to at least come up with better reasons for not acting.

In a 28-page opinion, the judge said the FEC's three Republican commissioners who voted to dismiss enforcement action acted “contrary to law” by failing to consider whether ads sponsored by the conservative groups were campaign ads, rather than genuine issue ads.

Cooper's ruling cited $1 million worth of TV ads aired by AAN in 2010 targeting specific Democratic House incumbents for backing President Barack Obama's health-care legislation. The ads named the lawmakers and said the bill they voted for provided “free health care for illegal immigrants” and “Viagra for convicted sex offenders.” The ads ended with the call: “In November, fix the health care mess Congress made.”

The judge said it “blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race.”

After the district court ruling, Emily Davis, a spokeswoman for AAN, had suggested the group would wait to see what the FEC did before deciding whether to file an appeal.

“While we respectfully disagree with the judge’s opinion, this preliminary ruling does not conclusively resolve the case,” Davis told Bloomberg BNA in an e-mail last month. “We are confident that the FEC’s original ruling to dismiss this matter was correct and will be affirmed. AAN will continue to move forward as it always has: a social welfare organization primarily dedicated to center-right policy advocacy.”

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

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

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