Chief Justice John Roberts stepped in Saturday to halt a federal judge’s order that a conservative political group said threatened to discourage so-called independent expenditures by broadening the circumstances in which anonymous donors could be exposed.
Roberts acted Saturday after a three-judge D.C. Circuit panel turned down the same arguments for a stay earlier in the day.
U.S. District Court Chief Judge Beryl A. Howell in August issued a rulinginvalidating a Federal Election Commission regulation that has allowed donors to so-called dark-money groups to remain anonymous.
The 38-year-old FEC regulation in dispute requires disclosure only when a donor designates his or her money for a specific independent expenditure, but does not require donors’ identities be made public under other conditions, including when they seek to support or oppose an individual candidate.
After Karl Rove’s Crossroads GPS failed to disclose the names of contributors behind its effort to defeat Democratic Sen. Sherrod Brown in 2012, Citizens for Responsibility and Ethics in Washington filed a complaint and then a lawsuit challenging the regulation for not implementing what the law requires.
Howell, an appointee of President Barack Obama, ruled that the regulation allowed too many donors to escape scrutiny.
“The challenged regulation … blatantly undercuts the congressional goal of fully disclosing the sources of money flowing into federal political campaigns, and thereby suppresses the benefits intended to accrue from disclosure, including informing the electorate, deterring corruption, and enforcing bans on foreign contributions being used to buy access and influence to American political officials,” wrote the judge.
The district court’s ruling was set to take effect on Sept. 17, until Roberts intervened Saturday. It is not clear whether Roberts’ order is a short-term measure intended to allow further consideration of the issue by the justices, or whether it will remain in place through this fall’s midterm elections.
Crossroads also sought an emergency stay from the D.C. Circuit, which declined to forestall Howell’s order.
“The regulation squeezes the Act’s explicit disclosure obligation beyond what the plain statutory text can bear,” the three-judge appeals court panel wrote. “Crossroads, fairly enough, emphasizes the age of the regulation. But unlike fine wines, regulations that so materially rewrite and recast plain statutory text do not improve with age.”
The judges turning down the request were Karen LeCraft Henderson, an appointee of President George H.W. Bush, as well as Patricia Millett and Robert Wilkins, both appointees of President Barack Obama.
FEC Commissioner Ellen Weintraub on Saturday promoted the news of the D.C. Circuit’s decision to deny Crossroads’ emergency stay appeal. But following Roberts’ granting of the group’s request, she quipped on Twitter: “Nice while it lasted.”
Attorney Robert Kelner described the D.C. Circuit’s denial of the stay as a “significant decision” on Twitter.
“This case isn’t getting a lot of attention,” Kelner wrote in another post. “But it’s potentially consequential for outside groups (not FEC registered) running election related ads. It impacts how they raise funds right now. Past fundraising may impact future reporting, including donor disclosure.”
