Two weeks ago we wrote about Rep. Van Hollen (D-MD) challenging the FEC’s electioneering communication disclosure provisions and the appellate court’s decision to refer the matter to the FEC. In response, the FEC yesterday filed a status report with the District Court for the District of Columbia, indicating that it would not pursue further rulemaking and instead defend its disclosure regulations. Those regulations currently allow political groups responsible for campaign ads to avoid disclosing donor information.

But of particular interest is what accompanied the FEC’s press release: three separate statements by the FEC Commissioners that represent a voting bloc favoring rulemaking and increased disclosure (Vice Chair Ellen L. Weintraub’s statement, Commissioner Steven T. Walther’s statement, and Commissioner Cynthia L. Bauerly’s statement). The statements not only reflect the FEC’s inability to reach the four votes needed to undertake further rulemaking on this question, but also the history of electioneering communication disclosure. Vice Chair Weintraub cited the decline in disclosure as evidence for the need to pursue rulemaking:

From the time the electioneering communication provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA) took effect until [FEC v. Wisconsin Right to Life (“WRTL”)], nearly 100% of groups that reported electioneering communications also disclosed their donors. Following WRTL and the Commission’s subsequent rulemaking, that number dropped to less than 50% in 2008. In the 2010 election cycle, nearly two-thirds of groups reporting electioneering communications failed to disclose their donors. (Emphasis in original)(citations omitted).

Moreover, a divide persists within the FEC that predates the Van Hollen decision. Commissioner Bauerly wrote:

We’ve been here before and this would appear to be our third strike. It seemed obvious to me after Citizens United and v. FEC, that we should have reevaluated several of our reporting rules. In January of 2011, the Commission considered two competing notices of proposed rulemakings (NPRMs) responding to Citizens United, neither of which received a majority of the Commission’s votes. (Citations omitted).

Commissioner Walther echoes the dismay:

Unfortunately, the third time is not “a charm” in this instance.

It will be interesting to see whether the three other FEC Commissioners disclose their thoughts on the matter. Regardless of their response, the question seems ready for more litigation at a time when political ads dominate the airwaves.