In an important decision, U.S. District Judge Christopher Cooper today ordered the Federal Election Commission to reconsider its dismissal of a complaint filed by CREW against two tax-exempt advocacy organizations that have never registered with the FEC. CREW alleged that the two groups, American Action Network and Americans for Job Security, had as their “major purpose” influencing federal elections, and that they therefore should have registered as federal political committees, which would have meant disclosing their donors. The FEC split 3-3, with the three Republican Commissioners voting not to find “reason to believe” that a violation had occurred.
For years, campaign finance reform groups have sought to breathe life into the “major purpose” test, first enunciated in the seminal 1976 campaign finance law case, Buckley v. Valeo (a case that was litigated by Covington & Burling). There has been considerable uncertainty since Buckley as to the point at which expenditures related to federal elections would cause influencing federal elections to be an organization’s “major purpose.” Judge Cooper ruled that the FEC erred in two respects when it dismissed the cases against AAN and AJS. First, the Republican Commissioners had considered only “express advocacy” of the election or defeat of clearly identified federal candidates to count for purposes of the major purpose test. The Court held that electioneering communications should have also been taken into account, even though they do not include express advocacy. Second, the Court ruled that the Commissioners erred by considering the groups’ recent election related ads only in the context of their lifetime history of activities spanning many years, which tended to downplay the centrality of federal election activity to their missions. Accordingly, the Court remanded the case to the FEC for further proceedings.
For a variety of practical reasons, there is a good chance that the case will now die on the vine at the FEC. Because the Court did not define a specific standard that the FEC must adopt, limiting itself to rejecting the standards that the Republican Commissioners applied, ample room remains for the FEC to deadlock again on remand, even if the deadlock rests on different grounds. But the significance of the case has less to do with the final outcome of this particular case, and much more to do with the standard that will apply in future cases. Depending on whether the FEC appeals the Court’s decision, and if so, the outcome of the appeal, Judge Cooper’s decision may point the way to a more expansive conception of the major purpose test, validating campaign finance reform groups’ decades long crusade to use that test as a battering ram to force outside groups to register as reporting committees. In the short run, it is fair to assume that those filing complaints with the FEC will cite liberally to Judge Cooper’s decision.