Today a D.C. federal appeals court temporarily reinstated a Federal Election Commission rule concerning when advocacy groups and others must disclose their donors, but has directed the FEC to clarify the rule or return to the courts for more litigation. The effect of the ruling is to put in limbo a key disclosure rule less than 50 days before the November election.

A lower federal court concluded in March (Van Hollen v. FEC, Civ. No. 11-0766 (ABJ)) that the FEC’s “electioneering communications” rule was drawn too narrowly by requiring groups airing pre-election ads to disclose only those donors who contribute for the purpose of “furthering” so-called “electioneering communications” – that is, ads that air in the 30 days before a primary or 60 days before a general election and refer to a federal candidate.  The appeals court determined that the FEC rule does not conflict with the plain language of the McCain-Feingold law, which requires that groups funding such electioneering communications file reports within 24 hours, listing the names and addresses of the group’s contributors.

The court refused, however, to resolve the dispute entirely, noting that through a strange quirk of procedure the FEC did not participate in the appeal, making it impossible to resolve issues such as the intended reach of the FEC rule and the effect of recent Supreme Court rulings.

Instead, under the appeals court ruling, the FEC must “promptly” tell the court whether it intends to clarify its disclosure rule or defend the rule in court.  While the FEC must decide “promptly” what to do, the court gives no indication as to whether it expects a rulemaking to be completed before the November election – a daunting task for any federal agency.  If more litigation is the chosen route, then the rules could well change again before the November election, with another appeal likely -- and potentially more changes. 

For the moment, the FEC rule is again in effect – disclosure of only those donors who contribute for the purpose of furthering electioneering communications.  We will be monitoring the situation closely over the coming days and weeks.