A federal judge ruled today that the FEC’s dismissal of Citizens for Responsibility and Ethics in Washington (CREW)’s complaints against American Action Network (AAN) and Americans for Job Security (AJS) was “arbitrary and capricious” and “contrary to law” and directed the FEC to reconsider the cases using a greatly expanded standard of what counts as a political ad. This will have a major impact on disclosure by dark money groups, as the FEC can no longer only consider ads that expressly advocate for or against candidates when deciding whether a group is a “political committee” that must reveal its donors to the public. United States District Judge Christopher R. Cooper wrote, “CREW’s citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose.
Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race.” This decision marks a major victory not just for CREW but for believers in an open and transparent political process. The court found that campaign related spending is not limited to express advocacy, that the FECA’s political committee provisions impose only “modest” burdens that serve the same important campaign-transparency interests as one-time event disclosures, and that the FEC needs to accept that an organization’s major purpose can change with time—specifically that if a once non-political organization starts acting like a political organization, then it is now one.
“This is a huge victory on many important grounds,” CREW Executive Director Noah Bookbinder said. “From now on, we hope to see a major change in the way the FEC approaches investigations of non-profit organizations engaged in politics. This could be the beginning of meaningful enforcement of rules meant to ensure transparency and restrict the ability of powerful interests to influence politics without disclosure.”
CREW initially filed complaints against AJS and AAN in 2012 alleging that due to their extensive political advertising campaigns, the groups’ major purposes were to impact elections, meaning they should have had to register as political committees under federal law and reveal their donors.
This is not the first major victory this year for CREW involving AJS and the FEC. In July, AJS was fined $43,000 by the FEC as part of a record post-Citizens United fine against Koch brothers network groups stemming from a CREW complaint.