The Van Hollen decision handed down yesterday, on a disclosure issue, is remarkable on a number of levels, none of which involve the precise issue before the court.  The United States Court Appeals for the District of Columia did narrow the disclosure required in connection with so-called “electioneering communications,” but as a practical matter, the damage done to transparency is probably of middling consequence.  As matters now stand, anyone wanting to spend substantial money to influence elections and keep much of it from detailed public view has a number of options.  The option that the appeals court ratified yesterday is just one, and probably not all that high on the list.

More important is the way the panel moved, to a new plane, the political case that critics of campaign finance reform have been building against disclosure.  The panel gave the Supreme Court a failing grade on its disclosure jurisprudence. It faulted the Justice for failing to weigh seriously the trade-offs between speech and disclosure, and it believes that it has launched them on an “ineluctable collision course.”  It also thinks the Court has compared constitutional apples and oranges. Speech is a right, and transparency is an “extra-constitutional value”: the appeals court panel evidently believes that, in locating the right constitutional balance, the Supreme has overvalued the extra-constitutional value.

The panel also strikes hard at the notion favoring regulation broad enough to block obvious cases of “circumvention”—cheating. On the issue before the Court, the FEC had concluded that a donation to an organization funding “electioneering ads” was reportable only if made for the precise purpose of paying for these communications. The plaintiff Van Hollen objected to the ease with which this rule can be evaded.  A donation can be made with no specific statement about its use; or maybe the trick is done with a “wink and a nod.”  Unless the regulators can implement a more sweeping requirement without attention to stated, demonstrated purpose, the statutes’ purpose can be “frustrated.”  The court is unimpressed: maybe so, it replies, but the likelihood that a rule will be ineffective is not enough to weaken the force of the constitutional concerns provoked by more muscular alternatives.

McCain Feingold (as the Court notes) rested on the very different notion that a regulator’s hand has to be strengthened to deal with “circumvention.”  But the Van Hollen panel disagreed that anti-circumvention measures may be successfully defended by “nothing more than highly generalized overtures” to a statutory purpose and the risk that it will be frustrated.  As this court sees it, there is always the risk that stopping circumvention of one purpose will result in damage to another—in this case, “conflicting privacy interests.”

For a few years now, the case against the 1970’s reforms has turned from spending restrictions eliminated or weakened by other developments—e.g. Supreme Court rulings—to disclosure.  The Supreme Court seemed to hold out on disclosure, offering it up as the backstop as other rules fell.  This appeals court suggests that the Court got it wrong, and that its disclosure jurisprudence will eventually collapse as the speech-transparency conflict becomes inescapable.  Van Hollen is significant primarily as a sharp challenge to the Court majority on these issues, but from an unusual direction—judges critical of what remains of the Buckley framework for campaign finance regulation who believe that the Roberts majority is not critical enough.

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