Tuesday, September 18, 2012

D.C. Circuit Reverses Disclosure Ruling, Passes to FEC

A three-judge panel of the D.C. Circuit today vacated the district court ruling in favor of plaintiff-Representative Chris Van Hollen over the FEC's disclosure regulation in Van Hollen v. FEC.  The ruling sends the case back to the FEC either to reissue its regs or to reargue that its current reg is a permissible construction of the statute, the Bipartisan Campaign Finance Reform Act.  The district court retains jurisdiction.

Recall that Representative Van Hollen sued the FEC over its reg, which required disclosure of corporate and labor union contributors as follows:

If the disbursement were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.

11 CFR Sec. 104.20(c)(9).  The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which requires disclosure as follows:

(E) If the disbursement were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . .; or

(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.

2 USC Sec. 434(f)(2).   

Van Hollen argued that BCRA's (E) and (F) required disclosure of "all contributors," but the FEC reg limited that to only contributions "made for the purpose of furthering electioneering communication."

The district court ruled that the FEC reg violated the plain language of the BCRA.  FEC's amici, but not the FEC itself, appealed.  The D.C. Circuit denied an emergency stay of the district court ruling pending appeal.  And finally today the D.C. Circuit vacated the district court ruling and remanded the case.

The court ordered the district court to retain jurisdiction while the FEC decides whether to re-write its regulation or to re-argue its case--this time focusing on whether its regulation was a permissible construction of the statute. 

(The district court originally ruled that the statute violated the plain language of BCRA--at Chevron's step 1.  It didn't even get to Chevron's step 2.  Because the D.C. Circuit ruled that the district court got it wrong on Chevron's step 2, the FEC may, if it chooses, reargue at the district court that the reg satisfies Chevron's step 2--that it's a permissible interpretation of the statutory language.)

SDS

http://lawprofessors.typepad.com/conlaw/2012/09/dc-circuit-reverses-disclosure-ruling-passes-to-fec.html

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