Yet another wrinkle has developed in the fabric of campaign finance reform, this time favoring the non-disclosure of donor information by groups responsible for “electioneering communications.” In a per curiam decision, the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit recently reversed a lower court decision that could have forced some political groups to identify all contributors, regardless of whether their contributions were earmarked for campaign advertisements. The dispute arose when the Federal Election Commission seemed to narrow the requirements of the Bipartisan Campaign Reform Act (“BCRA”).

The BCRA, also known as McCain-Feingold, required every person who paid more than $10,000 annually for campaign ads to report the names and addresses of “all contributors who contributed an aggregate amount of $1,000 or more . . . .” 2 U.S.C. § 434(f)(1), (f)(2)(F). However, after the Supreme Court’s 2007 decision in FEC v. Wisconsin Right to Life, Inc. (“WRTL”), the FEC promulgated rules that required the above disclosure only when the donation was “made for the purpose of furthering electioneering communications.”

The current dispute arose in 2011 when Rep. Christopher Van Hollen (D-MD) challenged the FEC’s disclosure rules. Rep. Van Hollen argued that the FEC rule created a loophole, allowing political groups to avoid disclosure unless their donors specifically earmarked their contributions for the use of campaign ads. In response, the FEC noted that the disputed rule addressed an ambiguity in the BCRA created after the Supreme Court’s decision in WRTL. Ultimately, the Court of Appeals was persuaded that the changes wrought by WRTL and Citizens United rendered the BCRA ambiguous on this precise question, raising the question of whether to defer to the FEC’s interpretation of the disclosure rules.

Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., whether deference is owed to an agency’s interpretation of a statute it administers depends on: (1) whether the statute evinces the intent of Congress; and (2) whether the agency’s interpretation manifests a permissible construction of the statute, if the statute is ambiguous. Having found the statute to be ambiguous, the FEC’s disclosure rules have survived the first question. However, the FEC did not participate in the appeal, preventing further analysis under the second question.

Whether these disclosure regulations will survive the second part of Chevron analysis depends in part on how the FEC responds now that the matter has been remanded to the District Court. The Court of Appeals has instructed the FEC to promptly advise the District Court whether it will undertake additional rulemaking, or defend its current regulations and subject them to additional judicial review. Either choice will likely continue to attract the interest of political groups and invite further argument inside and out of court, but the question will likely not be resolved by November.