05/01/2012 04:15 pm ET Updated May 01, 2012

Conservative Group Seeks Guidance On Ads To Maximize Donor Secrecy

WASHINGTON -- The recent district court ruling in the case Van Hollen v. Federal Election Commission that requires groups spending money on certain election advertisements and communications to disclose their donors is already having an impact.

The conservative nonprofit group American Future Fund petitioned the FEC on April 18 to explain what kind of ads it could run without having to disclose its donors in light of the Van Hollen ruling.

The Van Hollen ruling on March 30, issued by Judge Amy Berman Jackson, found that the FEC had improperly interpreted part of the McCain-Feingold campaign finance reform law. That law requires disclosure of the names of anyone donating to groups involved in "electioneering communications" -- spending money on ads about a candidate -- not advocating his or her election or defeat -- 30 days before a primary and 60 days before a general election.

The FEC had ruled in 2007 that groups must disclose only those donors who specifically earmarked their contribution for a particular "electioneering communication." This allowed groups like American Future Fund to avoid disclosure by claiming that all donors gave to its general treasury fund and not for a specific communication. In March the district court found that the 2007 FEC rule negated the law's clear intent and must be scrapped.

Last month American Future Fund, which spent $2.2 million on "electioneering communications" in 2010, presented eight possible advertisement scripts to the FEC to find out which would be considered a straight issue ad rather than an "electioneering communication."

In its petition, just made public on Tuesday, American Future Fund said it asked for the FEC's input because it "does not, however, want to subject itself to the burden of filing electioneering communications reports for these advertisements, and does not want to risk being compelled to violate its donors' privacy expectations as the result of ongoing litigation in Van Hollen v. FEC."

The ads all attempt to avoid the "electioneering communication" label by steering clear of mentioning directly by name or implication presidential candidate Barack Obama. The group proposes slightly different changes to similar ads and asks whether certain actions would be permitted without invoking donor disclosure: Would exchanging a shot of the Washington Monument for the White House make the ad less likely to be perceived as about a particular candidate? Do the phrases "Obamacare" or "Romneycare" count as mentions of candidates? Can the voice of the president be used since "only those familiar with President Obama's voice will know that it is President Obama speaking"?

The advisory opinion will be vital in determining what kinds of ads can be run by groups concerned about donor secrecy if the Van Hollen ruling is upheld by an appeals court. The ruling by the FEC could be issued at its next meeting.

Groups that have already run "electioneering communications," without disclosing donors, include the Karl Rove-linked Crossroads GPS, the U.S. Chamber of Commerce, the Koch brothers' Americans for Prosperity and the American Future Fund, among others.