September 7 marked the beginning of the 60-day window during which disclosure reports must be filed for electioneering communications referring to a clearly identified candidate. While that period ends on Election Day, the dynamic disclosure debate will continue. A legal victory for Representative Chris Van Hollen (D-MD) and disclosure advocates (Van Hollen v. FEC) earlier this year was short-lived. On September 18, a federal appeals court reversed the lower-court ruling, which had required increased disclosure by groups that sponsor electioneering communications. A panel of the US Court of Appeals for the District of Columbia reversed the ruling of federal district judge Amy Berman Jackson, who had held that FEC rules governing disclosure requirements for electioneering communications are too ambiguous. The regulations had been challenged by Van Hollen and reform groups who argued that the regulations protecting the anonymity of those providing donations for the purpose of making electioneering communications were in violation of the Bipartisan Campaign Reform Act (BCRA).

The FEC did not appeal the federal district judge's March 30 holding. A majority vote of the six commissioners was required to defend the disclosure rules on appeal, and the commissioners predictably deadlocked on the question. The appeal came from two 501(c)(4) groups, the Center for Individual Freedom (CFIF) and the Hispanic Leadership Fund (HLF). The three-judge DC Circuit panel said jurisdiction for clarifying and rewriting the rules lies with the FEC, though the FEC has said it will not issue new disclosure regulations before the November elections. This was reaffirmed on October 4, when the FEC deadlocked again on whether to issue new disclosure rules for electioneering communications and notified the district court that the Commission would not pursue rulemaking. The case was remanded back to the district court, which means the FEC may still appear in court to defend their rules, and Van Hollen and other challengers may still argue that the current regulations are arbitrary and should be overturned.

Public FEC data indicate that only one group filed an electioneering communications report for the general election before the federal appeals court issued its reversal, though several groups filed reports with the FEC listing donors for the primary election period.