Electioneering communications, perhaps unsurprisingly, have reemerged on the airwaves following the U.S. Court of Appeals for the D.C. Circuit’s September 18th reversal of a district court decision in Van Hollen v. FEC that required entities paying for electioneering communications to disclose all of their donors.
As we’ve previously noted, in the wake of the district court’s March 2012 decision requiring broad disclosure, the number of reported electioneering communications over roughly the next six months shrank to three. But since the D.C. Circuit’s ruling, Americans for Prosperity made the switch from independent expenditures to electioneering communications with an initial $200,000 radio ad buy. Set It Straight and the Republican Senate Campaign Committee followed suit by funding their own electioneering communications. While these disclosures may be first signs of a growing trend back toward electioneering communications, only time will tell how large the trend grows. The U.S. Chamber of Commerce, which had previously stated its intention to run independent expenditures in the wake of the district court’s ruling, has continued to do so even following the D.C. Circuit’s reversal, according to its disclosure reports.
Another variable may be that the battle is far from over in the federal courts. The D.C. Circuit’s ruling sent the case back to the district court with instructions to refer the matter to the FEC for a possible rulemaking—a decision the agency must make by October 12th. If the FEC initiates a rulemaking, the notice-and-comment procedures mandated by federal law would likely take us beyond the Presidential Election, ensuring that the electioneering communications disclosure law will stabilize for this election cycle. If the FEC declines, the district court will be left to decide the remaining legal question: whether the agency’s interpretation of the ambiguous term “contribution” is reasonable. How quickly the district court chooses to do this is entirely within its discretion.