The Supreme Court agreed to hear arguments in the Citizens United case at the end of February. The court will review the Jan. decision of a three-judge panel of the U.S. District Court for the District of Columbia in Citizen United v. FEC. The panel in Jan. rejected Citizens United's motion for a preliminary injunction, and in July, the court granted the Federal Election Commission's (FEC) motion for summary judgment on the merits. The group is challenging the federal "electioneering communications" disclosure requirements in the Bipartisan Campaign Reform Act (BCRA) as applied to its film entitled Hillary: The Movie and its advertisements promoting the film. The law prohibits corporations and nonprofits from airing broadcast ads which refer to a federal candidate 30 days before a primary election; Citizens United is a 501(c)(4).

Using the Wisconsin Right to Life v. FEC Court decision which exempted genuine issue advocacy from the electioneering communications prohibition, the group argues that the ads should be exempt as constitutionally protected for their discussion of issues. The appeal also challenges the disclosure requirement for broadcast ads.

The film was released when Clinton was a candidate for the Democratic presidential nomination. The panel in Jan. said the film was an electioneering communication, "susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office."

After an unprecedented turnout during early voting in Georgia, state GOP leaders are seeking to shorten the early voting period.

According to the Associated Press, "Republican lawmakers are considering proposals for next year's legislative session that would shorten Georgia's early voting season."

State Rep. Austin Scott said he is "considering whether to draft a measure that would shorten Georgia's 45-day advance voting period." More than 2 million people voted during early voting in the recent presidential election. Scott also said that the six week early voting period can expose the system to voter fraud.

There is no evidence that longer early voter periods result in voter fraud.

Georgia Secretary of State Karen Handel, a Republican, acknowledged that voters like having the option to vote early, but also said a "thorough conversation is needed before deciding whether to revive the policy."

Cathy Cox, her predecessor and a Democrat, said that more resources should be devoted to early voting due to its popularity. Lines for early voting were 8 hours long in some polling places.

An article from onPhilanthropy provides information on how certain requirements included in the Honest Leadership and Open Government Act (HLOGA) effect 501(c)(3) groups. The article covers reporting requirements, gift rules, and much more. "Charitable and other section 501(c)(3) organizations are not exempt from federal lobbying laws, so it is vitally important that your organization understands its new obligations."

And this article from Wiley Rein LLP details some issues that are likely to arise soon; "questions under the congressional gift rules about providing tickets to Members or staff to inaugural events and about sponsoring parties in honor of Members or staff coming to or leaving the Congress."

New rules on lobbying have been announced for those working on President-elect Barack Obama's transition team. For example, lobbyists can serve in the transition as long as their activities do not involve areas of policy they have tried to influence in the past year. Federal lobbyists will be prohibited from any lobbying while they are at work on the transition. The rules also prohibit people from lobbying the Obama administration for a year on any matters in which they worked while on the transition team.

And the New York Times details that lobbyists will not be allowed to help "pay the costs of his transition to power or working for it in any area in which they have represented clients in the last year." The transition team is also implementing a gift ban similar to what now exists in Congress.

To read the new rules that detail how lobbyists can participate in the transition, click here.

CNN reports that Chai Feldblum, a Georgetown University professor, "said nonprofit groups are likely to have a stronger voice under the restrictions that Obama's transition staff issued this week. 'I think that lobbyists for a broader range of the American public -- lobbyists for Catholic Charities USA, lobbyists for the Epilepsy Foundation, lobbyists for domestic violence groups -- people trying to bring those positions forward will have an easier time being heard,' Feldblum said."

Last week the the New York Times reported that there are "a growing number of philanthropists whose foundations are spending increasing amounts and raising their voices to influence public policy — a marked shift from their traditional position." The article opens by highlighting the Peter G. Peterson Foundation's efforts to address fiscal responsibility. The foundation financed a documentary examining the United States' addiction to debt titled "I.O.U.S.A."

Take, for example, the efforts by the Rockefeller Brothers Fund to persuade Exxon Mobil, the oil company and descendant of John D. Rockefeller's Standard Oil Trust, to increase its investments in alternative energy. Rather than simply trying to sway corporate executives behind the scenes, the Rockefeller Brothers Fund courted news media coverage, and Rockefeller family members spoke out against Exxon Mobil's leadership, as did the foundation's president, Stephen B. Heintz.

Joel L. Fleishman, author of The Foundation: A Great American Secret, cited three reasons for foundation' interest in influencing public policy: (1) greater ambition to tackle big and seemingly intractable problems, (2) growing frustration over government gridlock caused by partisanship and, (3) an increasing number of foundations that plan to spend down their assets by a specific date, making them eager to make a mark upon the world.

The Atlantic Philanthropies recently published a report, Investing in Change: Why Supporting Advocacy Makes Sense for Foundations, that urges increased foundation support for advocacy.

This year's presidential election has come and gone with minimal controversy, but many argue that doesn't mean there isn't room for improvement. The Alliance for Justice worked on the Election Protection hotline run by Lawyers Committee for Civil Rights and has some examples of the problems on Election day. And in response, suggest some ways to alleviate such issues in the future such as nationwide early voting, same day voter registration, increased penalties for voter suppression efforts, and provide more money to state and local authorities to conduct voter registration efforts.

The Brennan Center for Justice has recently released a policy paper advocating universal voting registration, which would have the government take the initiative on voter registration and ultimately help eliminate accusations of voter registration fraud. And reportedly, the Brennan Center is working with Senator Hillary Clinton (D-NY) on legislation that would ensure all eligible Americans are registered to vote automatically.

The New York Times reports that President-elect Barack Obama "is trying to fulfill campaign promises of sweeping ethics restrictions that could deter some potential appointees." According to Obama's website, political appointees will be prohibited from working on regulations or contracts directly and substantially related to their prior employer for two years. And no political appointee will be able to lobby the executive branch after leaving government service during the remainder of the administration. He has also promised to post online all appointees' employment histories and personal financial disclosures, along with meetings or conversations they hold with registered lobbyists. CQ Politics details that some expect that there will soon be new disclosure requirements for lobbyists trying to influence executive branch officials.

Yet, until further improvements to ethics and lobbying rules are made, numerous issues remain. For example, according to RollCall ($$) a loophole in the Honest Leadership and Open Government Act allows members who are either retiring or who lost en election to avoid filing notice if they are in job negotiations because their "successor has been elected."

"The loophole theoretically will permit retiring — and defeated — Members of Congress to negotiate corporate and K Street jobs without public scrutiny while at the same time playing an integral role in the upcoming lame-duck session."

For more information on the transition, visit, www.change.gov and from the Government Accountability Office (GAO), www.gao.gov/transition_2009. Change.gov has a blog and a suggestion form.

The American Constitution Society hosted a call on Nov. 6 in which voting rights experts discussed voting issues that occurred before and during the election, as well as what happens now that the election is over.

The panelists were Allison Hayward, a George Mason Law Professor and former Chief of Staff and Counsel for Federal Election Commissioner Bradley Smith, Pamela Karlan, a Stanford Law Professor and voting expert, and Daniel Tokaji, an Ohio State Law Professor and Associate Director of OSU's Election Law Project.

Tokaji discussed election administration issues, such as voter registration and voter suppression. Tokaji said that the big issue surrounding voter registration is not voter fraud, but rather the amount of voters who omitted from voter lists. He also discussed the role that Election Day voter registration has in the reduction of the use of provisional ballots. Tokaji said that he would like to see more Election Day registration because it increases turnout and decreases the use of provisional ballots. He added that there is no proof that Election Day registration results in voter fraud.

Haywood discussed various topics including how this election illustrated that a well-designed website can raise money and how the election will impact the possibility of new rules surrounding publicly and privately funded campaigns. In responding to a question about how the role of the Justice Department and Federal Election Commission will change under a new administration, she said that Justice Department will probably be more aggressive in voter registration at DMV and social service agencies.

Karlan, responding to a question about how the role of the Justice Department and Federal Election Commission will change under a new administration, said that the Inspector General is still investigating voter fraud and there has been little effort to help those who have been erroneously excluded from voting. She said that a new administration would probably focus more on those excluded from voting. She also discussed the impact that small donations may have on federal election law.

According to BNA Money and Politics ($$), contributors to 527 groups active in the 2004 presidential campaign have been subpoenaed by the Federal Election Commission (FEC) to provide evidence in the SpeechNow.org case challenging FEC restrictions on independent political groups. Reportedly, "the involvement of donors in investigations of the groups' activities was seen as a factor in curbing some donations to similar groups active in subsequent campaigns, including this year's presidential race."

"The FEC wants information from donors to bolster its rules for groups that seek to influence federal elections. Such organizations can be designated 'political committees' by the agency and can be subject to FEC rules including an annual $5,000 limit on contributions received from each contributor." According to the BNA article several large donors have agreed to provide documents about how they were solicited for contributions as long the documents remain confidential.

Last July SpeechNow.org was denied a preliminary injunction, and subsequently, their lawyers requested to have the case decided on its merits. "Under an unusual provision in campaign finance law, Judge Robertson is expected to make factual findings, then pass the case on to the U.S. Court of Appeals for the District of Columbia Circuit for a decision on the constitutional issues involved."

On Nov. 7 Judge Garr King of the United States District Court in Oregon ruled that the Department of Treasury's action in shutting down Al Haramain Islamic Foundation, Inc. in 2004 violated basic due process rights. The judge also ruled that the definition of "material support" of terrorists is constitutionally vague. A press release from Al Haramain's attorneys said the decision is "the first successful challenge by a designated entity to a legal scheme that empowers the federal government to blacklist and shut down charities and even individuals without virtually any procedural or substantive safeguards." The judge ordered further proceedings on the consequences of the due process violation.

The decision comes only a month after another federal judge ruled that Treasury violated the due process rights of KindHearts for Charitable Humanitarian Development by shutting them down "pending an investigation."

The court's opinion in the Al-Haramain case is online here.

Posted by Kay Guinane, 04:52:50 PM



Groups Release Agenda to Overhaul the Presidential Public Financing System Along with New Ethics and Lobbying Reforms

Democracy 21, the Brennan Center for Justice, the Campaign Legal Center, Common Cause, the League of Women Voters, Public Citizen, and U.S. PIRG have released a reform agenda for the 111th Congress. Their top priority is to reform the presidential campaign financing system and create a new public financing system for congressional elections. According to BNA Money and Politics ($$) the presidential public financing system could be overhauled "by providing greater amounts of public money, raising campaign spending limits to $500 million or more, and providing incentives—or even new, lower contribution limits—to promote smaller dollar campaign contributions."

"While emphasizing the small-donor aspect of Obama's fundraising, the new system envisioned by reformers would attempt to curb the kind of high-dollar fundraising at which Obama also excelled during this year's campaign."

The agenda also includes a list of other campaign finance, lobbying, and ethics issues that the groups will focus on. For example;

• Ensure that independent groups making expenditures for political television ads and other public communications are complying with federal campaign finance laws.
• Strengthen existing bundling disclosure rules to require federal candidates to disclose the total amount raised by each bundler, not just registered lobbyists.
• Make sure that congressional ethics and lobbying disclosures rules enacted in the Honest Leadership and Open Government Act are effectively enforced.
• Enact new reforms of the executive branch Office of Government Ethics.

Craig Holman of Public Citizen told BNA; "We'll get most of it."

The Chronicle of Philanthropy has a special page dedicated to Barack Obama's (D-IL) positions on issues of importance to nonprofits, such as education, the arts, international aid, the estate tax, and much more. For example, Obama has "pledged to create a Social Investment Fund Network, which would distribute government and private money to charities working on innovative projects that focus on issues that have been identified by cities as priorities — crime prevention or education, for example — and help expand successful ones to other regions."

And US. News & World Report details that "Obama's win may also provide a windfall to nonprofits." In his speech Tuesday night Obama said, "[Change] can't happen without you, without a new spirit of service, a new spirit of sacrifice."

The Chronicle of Philanthropy ($$) reports that numerous states had measures on the ballot that could have resulted in harmful cuts for charitable organizations that rely on state aid. "While the tax proposals on several state ballots were not aimed specifically at nonprofit organizations, the reductions in state revenue they would have prompted could have harmed charities that receive state and local grants and contracts to run arts, education, social-services, and other programs." An example of one of the failed proposals was in Oregon, which would have allowed residents to deduct federal taxes from their state income-tax returns, reducing the state's budget by about $1 billion.

However, one proposal that we noted before on the ballot in Oregon would prohibit automatic deductions from the paychecks of government employees. "Nonprofit groups generally opposed the effort, fearing that donations to charities from government employees also could be prohibited. The measure passed by a very narrow margin. Oregon voters defeated three similar measures in recent years."

On Oct. 30, Americans United for Separation of Church and State (AU) filed an IRS complaint against the General Baptist State Convention of North Carolina for engaging in partisan electioneering. The Convention hosted Michelle Obama, wife of then Democratic presidential nominee Barack Obama, at an event on Oct. 29.

According to AU, Michelle Obama praised her husband and told the group about the type of president that her husband would be. AU also stated in its IRS complaint that Ms. Obama's "appearance took on the trappings of a campaign rally, and during it Ms. Obama promoted her husband's candidacy and appealed for votes."

In his letter to the IRS, Rev. Barry Lynn, Executive Director of AU, said that the "appearance by Ms. Obama before this religious group raises a host of issues, and I urge the IRS to investigate the matter."

The Council on American-Islamic Relations (CAIR) filed an IRS complaint on Sept. 30 against the Clarion Fund, a nonprofit organization that distributed an anti-Muslim film to 28 million households in swing states during the presidential election season. The DVD, "Obsession: Radical Islam's War Against the West," was distributed in papers in at least 10 states.

CAIR wrote to Steven T. Miller, commissioner of the IRS's Tax Exempt and Government Entities Division, that, "[I]ndependent observers have suggested that the distribution of the DVD was an obvious attempt by the Clarion Fund to participate in campaign activities and intervene in the 2008 presidential election."

According to a CAIR press release quoting the Springfield News-Leader, "Those interviewed in "Obsession" constitute a veritable who's who of Muslim-bashers. Speakers include Walid Shoebat, who once told a Missouri newspaper that he sees 'many parallels between the Antichrist and Islam' and 'Islam is not the religion of God -- Islam is the devil'."