The Independent View: Court Paves Way for FEC to Reveal Anonymous super PAC Donor

An Anonymous Individual who Secretly funneled $1.7 Million to a super PAC in 2012 will soon be Revealed after a Lengthy Legal Fight, if a New Appeals Court Decision in Washington is Not put off for further Review by the Court.

The Person’s Identity has remained a Secret for years as the Federal Election Commission (FEC) Investigated a Complaint into how the Money was Routed through Intermediaries to a Missouri-based super PAC, Now or Never PAC. The Group spent close to $8 Million Promoting GOP Candidates in the 2012 Election, including Missouri Republican Senate Nominee Todd Akin.

Now or Never PAC is supposed to Reveal its Donors regularly under Federal Law but never Disclosed the Original Source of the Funds, instead filing a Disclosure that showed a $1.7 Million Contribution from the American Conservative Union, the Organizers of the Annual Conservative Political Action Conference (ACU).

But ACU was at least One step Removed from the Original Donor. While investigating a Complaint from the Watchdog group Citizens for Responsibility and Ethics in Washington, the FEC found the Money had originally come from a Donor and been routed through a Delaware-based LLC, and then the American Conservative Union, on its way to Now or Never PAC.

The FEC reached an Agreement in with ACU in 2017 over its Role in moving the Donation and the ACU paid the FEC a $350,000 Fine. But some Parties refused to Cooperate with the FEC in the Case, Commissioner Ellen Weintraub said in a Statement released in late 2017, making it difficult for the FEC to find the Original Source of the Funds.

The slow-moving Case has been a Major one for Transparency Advocates including Weintraub and CREW, who see Public Information about Big-Money Political Donors as a fundamental Anti-Corruption Resource. Super PACs are supposed to Disclose their Donors and are Not allowed to use Pass-Through Organizations, called “Straw Donors,” to Obscure their Identities.

Two Judges on the United States Court of Appeals for the District of Columbia joined an Opinion stating the Plaintiffs, a Trust and a Trustee named as “John Doe 1” and “John Doe 2” in the Case, should be named by the FEC. One Judge Dissented. It is Not entirely clear whether “John Doe 1 or “John Doe 2” are the Original Donor, or whether they, too, were Pass-Throughs for the $1.7 Million Contribution.

The Plaintiffs argued that the FEC did Not have the Authority under Federal Election Law to Disclose their Name as it Released Information on its Investigation into what happened at Now or Never PAC. But Circuit Court Judge A. Raymond Randolph Rejected that Argument on the Grounds that the Court has in the past recognized “deterring future violations and promoting Commission accountability may well justify releasing more information than the minimum disclosures required by” Law.

And the Plaintiffs did Not make enough of a case that Revealing their Identity would Harm their First Amendment Right to Participate in Campaign Giving without experiencing harm, Randolph said.

The Plaintiffs “did not allege that they would be subject to threats or reprisals,” wrote Randolph, who wrote the Opinion of the Court. “They did claim that disclosing their identity would ‘chill’ them from engaging in political activity. But this does not distinguish them from others who make campaign contributions.”

Weintraub, who now Chairs the FEC, said in a tweet on Friday that she plans to release the Names of the Donors “as soon as we know this decision won’t be reviewed.”