CREW Urges D.C. Circuit to Act in `Dark Money’ Case

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By Kenneth P. Doyle

A long-running challenge to the Federal Election Commission’s lack of enforcement action against a conservative campaign spending organization that received millions of dollars from undisclosed donors is set for a November argument in the (CREW v. FEC, D.C. Cir. No. 17-5049, order 9/12/17).

The watchdog group Citizens for Responsibility and Ethics in Washington contends that, if the U.S. Court of Appeals for the District of Columbia Circuit can’t force action in this case involving the now-defunct nonprofit called the Commission on Hope, Growth and Opportunity (CHGO), there’s no hope for enforcing disclosure requirements against any of the numerous “dark money” groups that have intervened in U.S. elections since 2010.

“The FEC claims that in this case—where CHGO committed wanton and obvious violations of the [Federal Election Campaign Act] and obstructed the FEC’s investigation, the FEC already possesses all necessary information to enforce the law yet won’t to preserve agency resources, and CREW stands ready to take legal action to vindicate its rights—a citizen suit is still barred,” said a plaintiff’s reply brief filed last month.

“One is left to wonder,” CREW added, “if the FECA does not permit a citizen suit here, when would it?”

First Amendment Concerns

The FEC has said in earlier court filings that it was justified in refusing to release the identities of donors to the conservative nonprofit group. Disclosing the group’s donor list, which was uncovered in an agency investigation, “would implicate serious First Amendment concerns,” according to a court brief filed by FEC lawyers.

A clerk’s order issued by the D.C. Circuit said the case involving disclosure of CHGO’s donors would be argued Nov. 15 before a panel of three appellate judges. The panel will not be named until next month.

The court argument will focus on CREW’s claims that the FEC acted “contrary to law” by deadlocking on the issue of whether CHGO was subject to disclosure rules. At the time the six-member FEC, which was equally divided between three commissioners recommended by Democrats and three by Republicans, deadlocked along party lines on a enforcement complaint against CHGO. The deadlock stymied enforcement action against the conservative group.

FEC lawyers are now in court, essentially to defend the position of the three Republican FEC commissioners, who voted against pursuing enforcement action.

FEC Has Donor List

CREW has argued that, even if the FEC Republicans were correct in arguing that further enforcement action against CHGO would waste resources and risk costly litigation to go after a defunct organization, the FEC could partially remedy the disclosure violation in this case without spending anything else. The FEC could simply release the names of CHGO’s donors that it already possesses, CREW said in an earlier court brief.

The FEC has acknowledged that it conducted an investigation of the conservative group and found out who funded CHGO. The agency has refused to release this information, however. A request for the identity of the conservative group’s funders, filed by Bloomberg BNA under the Freedom of Information Act, was denied by the FEC, citing privacy concerns.

The FEC’s latest court brief defended the agency’s stance against disclosure by citing a 2003 ruling by the D.C. Circuit in a case brought by the AFL-CIO. The labor federation challenged the FEC’s then-routine policy of publicly releasing virtually all information uncovered in each agency investigation. The AFL-CIO argued, and the appeals court agreed, that releasing too much information about those targeted in FEC probes could violate their First Amendment rights to free speech.

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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