Trade associations, 501(c)(4) social welfare organizations, other outside groups that pay for
political advertisements, and their donors now have more answers to long-running questions
regarding when donations to these groups are publicly reportable. After postponing
consideration of the issue during its previous meeting, the Federal Election Commission (“FEC”)
approved Wednesday an interim final rule on donor disclosure. The interim rule amends the
federal regulations that describe when outside groups that pay for independent expenditures–
advertisements that expressly advocate the election or defeat of a clearly identified candidate–
must publicly disclose on FEC reports the names of their donors. The amended rule will take
effect 30 legislative days after the FEC transmits the new rule to Congress, which the FEC
anticipates will be September 30, 2022.
The interim rule brings the FEC’s regulations into harmony with a 2018 court decision that
invalidated a long-standing regulation, 11 C.F.R. § 109.10(e)(1)(vi), requiring outside groups to
disclose only those donors who contributed at least $200 to the outside group “for the purpose
of furthering the reported independent expenditure.” The interim final rule strikes the regulation
entirely. However, the FEC added a note to 11 C.F.R. § 109.10(e)(1) that clarifies the remaining
portions of the regulation and the relevant statute are still in effect.
In the wake of the 2018 decision, many questions remained about when these groups must
disclose donor names. The revised regulation itself was not meant to answer those questions; it
was simply meant to harmonize regulations on the books with existing court decisions. Some of
these questions were answered by an unusual guidance document the Commission posted to
its website after the 2018 decision. That guidance, which remains in effect, provides that groups
(other than political committees) that pay for independent expenditures must disclose the names
of donors of over $200 who made contributions “earmarked for political purposes” during the
reporting period.