Skip to Main Content

U.S. Supreme Court Denies Request for Stay of Ruling Requiring Nonprofit Donor Disclosure

September 19, 2018

The U.S. Supreme Court has rejected a request to stay a prior federal district court opinion that vacated a key Federal Election Commission donor disclosure regulation. As noted in an earlier Client Alert, that district court ruling was issued last month by Judge Beryl Howell of the U.S. District Court for the District of Columbia, who held that an FEC disclosure regulation related to “independent expenditures” (i.e. public communications that expressly advocate a candidate’s election or defeat) was overly narrow and thus inconsistent with the underlying Federal Election Campaign Act provision. The Supreme Court’s denial of the request to stay the ruling marks the end of a tumultuous few weeks for the case, and will allow the ruling, with potentially significant consequences for 501(c)(4) and 501(c)(6) organizations, to go into effect. Going forward, nonprofits and other organizations required to file “independent expenditure” disclosure reports with the FEC will be required to disclose all contributors who donated more than $200 toward influencing federal elections, regardless of whether the donor had earmarked their donation for a particular independent expenditure.

The case was brought by Citizens for Responsibility and Ethics in Washington (CREW), who sued after the FEC dismissed an administrative complaint against Crossroads GPS, a 501(c)(4) organization, alleging that the group did not disclose the names of contributors to a 2012 effort to unseat Ohio Senator Sherrod Brown. The U.S. District Court for the District of Columbia sided with the plaintiffs, concluding that the challenged regulation “has permitted reporting non-political committees to evade the statutory disclosure requirements” by allowing donors to avoid identification on FEC reports provided that they not earmark their donations to be used on an independent expenditure. Crossroads GPS appealed, and the D.C. Circuit denied their appeal on September 15th. That same day, Crossroads GPS filed an emergency stay motion, which Chief Justice John Roberts of the U.S. Supreme Court, who oversees emergency petitions arising from the D.C. Circuit, granted.

On September 18th, the Supreme Court denied the request for a stay, in an order issued by Chief Justice Roberts. The practical effect of this decision is that, moving forward, 501(c)(4) and 501(c)(6) organizations that plan to make independent expenditures in federal races will need to disclose to the public any donor that gave money for the purpose of influencing federal elections, regardless of whether they wanted to earmark their funds towards a particular federal race or particular communication. In the past, these organizations had relied on the prior FEC rule that required them to disclose a donor’s name to the public only where the donor earmarked funds for a particular communication. The prior rule resulted in many organizations sponsoring advertisements using express-advocacy terms like “vote for,” “oppose,” and the like in federal races while reporting few (if any) donors on FEC reports.

The FEC has not yet issued rules or guidance on when a particular donor must be disclosed, but nonprofit organizations should be aware that the new disclosure rules may require significant changes in their fundraising and reporting approaches.

Caplin & Drysdale's Political Law and Exempt Organizations Groups are available to assist any potential sponsors of federal-level independent expenditures determine their disclosure obligations. If you have questions concerning this alert or for more information, please contact:

Trevor Potter 

Matthew T. Sanderson

Douglas N. Varley

Sharon P. Want

Bryson B. Morgan

Emma K. Lewis


About Caplin & Drysdale
Celebrating our 55th Anniversary in 2019, Caplin & Drysdale continues to be a leading provider of legal services to corporations, individuals, and nonprofits throughout the United States and around the world. We are also privileged to serve as legal advisors to accounting firms, financial institutions, law firms, and other professional services organizations.

The firm's reputation over the years has earned us the trust and respect of clients, industry peers, and government agencies. Moreover, clients rely on our broad knowledge of the law and our keen insights into their business concerns and personal interests. Our lawyers' strong tactical and problem-solving skills -- combined with substantial experience handling a variety of complex, high stakes, matters in a boutique environment -- make us one the nation's most distinctive law firms.

With offices in New York City and Washington, D.C., Caplin & Drysdale's core practice areas include:
For more information, please visit us at
Washington, DC Office:
One Thomas Circle NW
Suite 1100
Washington, DC 20005
New York, NY Office:
295 Madison Avenue
12th Floor
New York, NY 10017


This communication does not provide legal advice, nor does it create an attorney-client relationship with you or any other reader. If you require legal guidance in any specific situation, you should engage a qualified lawyer for that purpose. Prior results do not guarantee a similar outcome.

Attorney Advertising
It is possible that under the laws, rules, or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation.
© 2022 Caplin & Drysdale, Chartered
All Rights Reserved.