Since the Supreme Court’s 2010 ruling in Citizens United, spending by outside groups and non-political organizations has increased in federal elections. Many of these groups are organized as 501(c)(4) social-welfare organizations and 501(c)(6) trade associations. Under current IRS rules, these groups are not required to disclose their donors and may engage in political activity, including making independent-expenditures, provided the political activity is not the organization’s primary purpose.
Previously, under FEC regulations, such groups and organizations were only required to identify donors who contributed over $200 for the purpose of influencing a federal election if the contribution was earmarked for a specific independent expenditure; general contributions were not required to be disclosed. Last month, in a case brought against the Federal Election Commission and Crossroads GPS by the Committee for Responsibility and Ethics in Washington, the U.S. District Court for the District of Columbia struck down the FEC regulation allowing 501(c)(4) and 501(c)(6) organizations to shield their donors, stating that the regulation was overly narrow and inconsistent with the Federal Election Campaign Act. Crossroads GPS appealed the decision, lost on appeal, and filed an application for a stay with the U.S. Supreme Court, which was denied.
The Supreme Court’s denial for a stay has important implications for 501(c)(4) and 501(c)(6) organizations. Going forward, nonprofit organizations that file independent expenditure reports with the FEC may be required to disclose ALL donors who contribute more than $200 toward influencing a federal election, regardless of whether that particular contribution was earmarked for a particular independent expenditure. The FEC has not issued any rules or guidance regarding this expanded disclosure requirement, but 501(c)(4) and 501 (c)(6) organizations should know that this new disclosure rule may require a change in their fundraising and disclosure processes.
Prior to the Supreme Court’s ruling, many donors felt comfort in giving to 501(c)(4) and 501(c)(6) organizations knowing they their identities would not be publicly disclosed. Now, with less than seven weeks until the 2018 Mid-Term Elections, this recent decision has these groups and their donors wondering what is next. At a minimum, groups considering running ads in connection with the 2018 Mid-Term Elections should evaluate their strategy to determine whether the ads fall within the category of independent expenditures (that would be subject to FEC reporting) or issue advocacy (that would be exempt from current reporting requirements). If disclosure is a concern, donors must also make sure that they fully understand whether a group to which they wish to make a donation plans to engage in independent expenditures.
While the finer details will not be known until the FEC issues temporary guidance or regulations, one thing is clear: the fact that the rules of the road have changed with less than two months before Mid-Term Elections means that many groups and donors may need to re-evaluate their strategy with respect to participation in the upcoming election. For more information on what this ruling means with respect to your plans for participating in the 2018 Mid-Term Elections, please contact Rebecca Moll Freed, Esq., Chair of the Corporate Political Activity Law Group, at firstname.lastname@example.org or 973-230-2075, Rajiv D. Parikh, Esq. at email@example.com or 973-535-4446, Avi D. Kelin, Esq. at firstname.lastname@example.org or 973-646-3267, or Paul M. Rozenberg, Esq. at email@example.com or 973-646-3283.