On March 30, 2012, the U.S. District Court for the District of Columbia issued a decision in Van Hollen v. FEC striking down the Federal Election Commission (“FEC”) regulation that limited disclosure of donors to those who gave specifically for the purpose of funding “electioneering communications.” Electioneering communications are broadcast ads that reference a clearly identified federal candidate in the candidate’s district and air within 30 days of a primary or within 60 days of the general election.
Since the Van Hollen decision, reported electioneering communications have dramatically decreased, with only three electioneering communications reported after the decision. Of those three reports, one was filed by Freedom Path, which reported that it had received no donations during the reporting period. The other two reports were filed by the Mayors Against Illegal Guns Action Fund and disclosed the Fund’s donors since January of 2011.
By contrast, there were reports of around 350 electioneering communications in 2010, the last federal election year.
FEC data shows that between March 30 and September 11 of 2010, there were over ninety electioneering communications, with total disbursements of $14.74 million, versus just three reports for slightly more than $200,000 in spending between March 30, 2012, and yesterday. This, despite heated congressional and presidential races this year.
While one can debate whether disclosure is good or bad, the practical reality is inescapable: Van Hollen has ended electioneering communications as a weapon in this year’s campaign.
For now, ironically, the action has shifted decisively to “independent expenditures,” which include stronger words of “express advocacy” than do electioneering communications, but which are subject to more relaxed disclosure requirements.