How did the FEC weaken disclosure rules for tax-exempt groups?
When the FEC wrote new regulations to comply with Wisconsin Right to Life v. FEC, it narrowed the scope of its disclosure rules. Under the rules it had issued after BCRA, a group spending $10,000 or more on electioneering communications had to disclose all of its $i,000-plus donors. Under the 2007 rules they now had to disclose only those donors who gave "for the purpose of furthering electioneering communications."31
The FEC had a superficially plausible explanation for this ruling. Officially, tax-exempt groups are not primarily engaged in politics, so requiring them to disclose all their donors would violate the privacy of people who gave to support the groups' nonpolitical purposes. Privacy is an important public interest, one the FEC is obliged to protect; but neither BCRA nor Wisconsin Right to Life required the disclosure of donations to nonpolitical groups. What they did require was the disclosure of donations to pay for those groups' electioneering communications. The FEC could have protected both privacy and disclosure, even for groups that really were primarily nonpolitical, by requiring them to make separate solicitations for their political and nonpolitical expenditures. What it did instead was use its obligation to protect privacy as a cover for not protecting the public's interest in disclosure.32
The ruling set off a round of challenges to the new regulation in the federal courts. In 2011, Representative Chris Van Hollen (D-MD) filed suit to reverse the FEC regulation, claiming the agency had read BCRA and WRTL too narrowly. As of this writing, the most recent event in the back- and forth- between the federal district and circuit courts in Washington, D.C., was the circuit court's January 2016 rejection of Van Hollen's challenge. By then, Citizens United had made 501(c)s, and particularly 501(c)(4)s, immensely more valuable as conduits for political money.33