HARMON CURRAN NONPROFIT LAW BLOG
Chief Justice Temporarily Stays Increased Disclosure of 501(c)(4) Contributors
A federal court decision that would require 501(c)(4) organizations making independent expenditures (“IEs”) in federal elections to disclose more of their donors than they have previously been required to do under Federal Election Commission (FEC) regulations is on hold after Chief Justice John Roberts of the Supreme Court issued a temporary stay of the decision.
The August 3, 2018 decision in Citizens for Responsibility and Ethics in Washington (CREW) v. FEC was the subject of an earlier e-update. That decision struck down an FEC regulation that limited the scope of donor disclosure to only those contributions made with the purpose of furthering a specific IE. Judge Beryl A. Howell stayed her order for 45 days, meaning that it would not take effect until today (September 17, 2018).
On Saturday, September 15, the Court of Appeals for the DC Circuit denied a motion for an emergency stay of the court’s decision, agreeing with Judge Howell’s conclusion that the FEC regulation “squeezes the [statute’s] explicit disclosure obligation beyond what the plain statutory text can bear.”
However, later on Saturday, Chief Justice Roberts issued a brief order staying Judge Howell’s decision pending further order of the Supreme Court. This action, referred to as an “administrative stay,” will prevent Judge Howell’s order from going into effect until the full Supreme Court has time to review the matter and possibly issue a more permanent stay, which would require the affirmative votes of five Justices.
Unless and until the Chief Justice or the Supreme Court issues a further order on the matter, 501(c)(4) organizations making IEs in support of or opposition to federal candidates can continue to report those expenditures in the same way they have done so previously. 501(c)(4) organizations and their donors should remain aware of the pending rule change, which still yet may take effect in time to apply to contributions received now and reports filed in the waning days of the current election cycle.
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