Author of Seen but not Heard: Strengthening Nonprofit Advocacy, and Executive Director of OMB Watch, Gary Bass has written an op-ed appearing in the Chronicle of Philanthropy addressing the importance of advocacy in the nonprofit sector. Research detailed in the book presents important findings, for example, while more than eight out of 10 charities surveyed say they have either lobbied or testified before a governmental body, most of them do so infrequently.

Lobbying has increasingly become a dirty word. It is associated with backroom deals negotiated by those with lots of money. It is unseemly, made all the more ugly by the likes of the disgraced lobbyist Jack Abramoff. Yet Americans have fought wars to defend our constitutional right to lobby. The First Amendment says it is "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It is among the most cherished of democratic principles: the right to organize and advocate for policy changes.

Read the op-ed for some vital cause as to why nonprofits should engage in advocacy, "and how it should become the ordinary instead of the extraordinary.

On Nov. 8 in Washington, DC, the Aspen Institute will host a panel discussion on the book, its implications, and its recommendations. The panel will include authors Gary D. Bass and Kay Guinane of OMB Watch and will feature responses from leaders in the nonprofit and philanthropic sector. RSVP to aspenevents@aspeninstitute.org by Friday, Nov. 2. For more information, contact Erin Taber at (202) 736-5855.

• summary of closing arguments by the prosecution
• summary of closing arguments by the defense

The Senate Judiciary Committee is scheduled to consider reforms to the Foreign Intelligence Surveilance Act (FISA) this Wednesday (Oct.31). This follows the Senate Intelligence Committee's passage of S.2248. The committee's report on the bill highlights what occurred during their closed door mark up hearing. The report states that telecommunications companies participating in the surveillance program received regular letters affirming that President Bush authorized the program. During the markup, Senator Bill Nelson (D-FL) offered an amendment to strip the provision granting immunity to telecommunications companies from the bill, but his amendment was rejected 3-12.

Scheduled to testify at the Judiciary hearing's is Assistant Attorney General Kenneth Wainstein of the Department of Justice's national security division. A second panel will hear from Edward Black, president and CEO of the Computer & Communications Industry Association; Patrick Philbin, partner at Kirkland & Ellis and former DOJ deputy assistant attorney general for national security; and Morton Halperin, director of U.S. advocacy at the Open Society Institute. Beforehand, the committee's leaders, Senator Patrick Leahy (D-VT) and Senator Arlen Specter (R-PA) will be able to review confidential documents that the White House Counsel's Office previously showed to members from the Senate Intelligence Committee.

For an excellent breakdown of the bills before Congress to amend FISA, read this from the Center for Democracy and Technology.

Act Now! Tell your Senators to reject efforts to grant retroactive immunity to telecom companies that assisted in the administration's illegal wiretapping.

Reportedly, a list of polling places in Pennsylvania will not be publicized because state officials are concerned that terrorists could disrupt elections. This decision was influenced by the terrorist bombings that occurred days before Spain's national elections in 2004. However, information on individual polling places will remain available on the state voter services web site. Many nonprofit organizations that conduct get-out-the-vote efforts will certainly face difficulties because of this.

Furthermore, the attacks in Spain before that country's national elections in 2004 did not target polling places, and the U.S. had a national election in 2004 as well which was plagued by a shortage of machines, disproportionate disenfranchisement of the poor and minorities, and machine irregularities, but there certainly were not any terrorist attacks that year on U.S. soil. And if someone did want to attack a polling location, they could still simply call the state or county elections bureaus.

The Federal Election Commission (FEC) will allow hearings for those accused of federal election law violations. According to CQ Politics;

The decision, which makes permanent a pilot hearing program that began in February, is an attempt to make the enforcement process more transparent and participatory. For the first time, candidates and other political groups and operatives will have the opportunity to argue their case directly before the commissioners. It will create what Commissioner Ellen Weintraub, whose office shepherded through the rule change, called "a dialogue." And it's what election lawyers and those regulated by the FEC have been calling for years.

Meanwhile, the Washington Post reports on the FEC nominees that are still in limbo. These conflicting blog posts discuss the ramifications here and here.

On Wednesday (Oct. 24) the Senate Homeland Security and Government Affairs Committee held a hearing titled, "Watching the Watch List: Building an Effective Terrorist Screening System." The hearing focused on the rapidly growing size of the Terrorist Screening Center (TSC) watch list, the centralized watch list that brings together all of the government lists of potential terrorists into one master list. A Government Accountability Office (GAO) report was released to coincide with the hearing, finding that in May 2007 the list has grown to include 755,000 names and has increased to an estimated size of 860,000 today. How can a list of this size even be functional? As Committee Chair Senator Lieberman (D-CT) said in his opening statement, "Some of the concerns stem from the sheer size of the watch list. . . . But if many of these names are mistakenly there, the credibility of the terrorism watch list and its usefulness will be compromised."

In May the Treasury Inspector General for Tax Administration (TIGTA) issued a report criticizing the Internal Revenue Service (IRS) for not using the TSC watch list to check nonprofit tax filings for possible matches to suspected terrorists. This becomes even more problematic with recent news.

Check out these two blogs covering the troubling watch list and its massive size; from the ACLU and Wired.

On October 18, Senators Charles Schumer (D-NY), Arlen Specter (R-PA), Thad Cochran (R-MS), and Tom Harkin (D-IA) introduced SJR 21, a proposed Constitutional amendment that would overturn the 1976 Supreme Court opinion in Buckley v. Valeo. The proposed amendment states, "Congress shall have power to regulate the raising and spending of money, including through setting limits, for campaigns for nomination for election to, or for election to, Federal office."

The Center for Competitive Politics refers to the resolution as the "anti-first amendment resolution," for allowing "further regulation of political speech by imposing restrictions on campaign spending."

Politico reports, "[t]he senators did not offer any plans for a new campaign finance system, but instead voiced their disapproval of the current, increasingly arcane regulatory scheme. . . . All in all, a real long shot."

With headlines mostly describing the confusion that befell the court room on Monday and a seeming defeat for the government, there are now many opportunities. For example, will more notice our concerns with the designation process of groups as terrorist organizations, and will more now pay attention to the problems with shutting down a charity before any criminal charges are brought and freezing all of its assets all with secret evidence? An opinion piece in the Washington Post by David Cole, a law professor at Georgetown University, identifies these concerns.

The president has asserted the power to designate any organization or individual he chooses, here or abroad, without formal charges, a trial or hearing of any kind; without a statement of reasons; and on the basis of secret evidence. While full-scale criminal protections are not necessary, surely groups should be afforded a meaningful opportunity to defend themselves before they are shut down.

Along the same lines, check out this blog entry from the Huffington Post, "Let's Reassess Material Support"

And this New York Times article marks Monday's events as "another in a series of missteps and setbacks" for the government's track record in terrorist convictions. Meanwhile, tomorrow (Oct.25) Tariq Ramadan, who was denied a work visa for a teaching position at the University of Notre Dame will face material support charges. After academic and literary groups sued the government, the reasoning for not giving him the visa changed.

After the suit was filed, the government changed its rationale for excluding Professor Ramadan, now saying that he had contributed about $1,300 to a charity in Switzerland from 1998 to 2002. That charity, later designated a terrorist organization by the Treasury Department, in turn made contributions to Hamas, which had already been designated one. Professor Ramadan's second-hand contribution amounted to material support for terrorism, the government said.

More news coverage on the Holy Land case includes: the LA Times and the Washington Post. And check out this recent Watcher story, "No Conviction, Mistrial for Holy Land Foundation".

Don't miss this hilarious video clip of Stephen Colbert doing a spoof of the Federal Election Campaign Act's (FECA) application to his campaign for presidency. He has signed papers to get on the Democratic and Republican primary ballots in South Carolina. Now many are asking whether Colbert risks violating election law with the show promoting the campaign. What would happen to the show as the election nears? Faced with a similar situation earlier this year, NBC decided to stop airing Law & Order reruns featuring Fred Thompson.

Bob Bauer at moresoftmoneyhardlaw.com describes Colbert's candidacy as it relates to campaign finance restrictions.

The split screen he used to make the point is about as good a jab at the inner contradictions and porous boundaries of the law as any found in standard anti-reform critiques. It might end here, or it might go farther. It appears that Colbert will flirt with violating the law, or build a piece or two around the flirtation, but since he has hired Wiley Rein, he seems also prepared to keep to the legal side of the line—mostly. If he just walks the line from time to time—as visible as the line can be—regulators will have little appetite for challenging Colbert.

Colbert's first-line of defense is to establish that his show is a news show, entitled to the protections of the "media exemption." Assuming that he is successful there—as he would be, most likely— then the question is whether his hosting of the show as a candidate presents any special issues, now and perhaps under the electioneering communication prohibition, effective within the 30 day period prior to the South Carolina primary.

The biggest terror finance trial in U.S. history was declared a mistrial. The federal case against the Holy Land Foundation, once one of the largest Muslim charities in the U.S., ended in a mistrial after jurors were unable to come to a unanimous decision on the 197 counts brought against the charity and five of its formers officers and supporters. There was a unanimous verdict only on one defendant, Mohammad El-Mezain, Holy Land's original chairman and endowments director who was acquitted on all but one count. All other counts the jury hung on, and subject to retrial, which the government will do.

Dallas Morning News reports; "When polled, some jurors told the judge that they did not agree with the verdicts on Mr. Abdulqader and Mr. Odeh. U.S. District Judge Joe Fish then ordered the jury to discuss whether further deliberations might allow them to reach a decision. But after deliberating for another 45 minutes Monday morning, 11 of 12 jurors agreed that further deliberations would not change their decisions. It was then that the judge declared a mistrial.

Read coverage from the New York Times here.

The Internal Revenue Service (IRS) has released this new pamphlet, Compliance Guide for 501(c)(3) Public Charities. The packet includes information on activities that may risk a group's exempt status, information on recordkeeping, changes to be reported to the IRS, required public disclosures, and more resources for charities. And also see this brochure for charities.

With a vote of 13-2, the Senate Intelligence Committee passed the bill to revise the Foreign Intelligence Surveillance Act (FISA). The measure does have retroactive legal immunity for telephone carriers and would not require the FISA court to issue a warrant for surveillance of a foreign suspect who might have communications with a U.S. resident, but the administration would have to submit its surveillance and minimization procedures to the court for approval. The bill would also sunset after six years.

CQ ($$) reports that the "FISA court would have to approve several aspects of warrantless surveillance of targets reasonably believed to be outside the United States, such as the targeting procedures used, according to Rockefeller and Bond." Senate floor debate of the bill might occur around mid-November.

Senator Ron Wyden (D-OR) offered an amendment that passed to require the government to obtain a warrant when targeting an American overseas for surveillance. Wyden and Senator Russ Feingold (D-WI) were the only Members who voted against the bill.

Reports say that some Members on the Senate Judiciary Committee, which has not yet scheduled a mark up, will give the bill much more resistance. A press release from Feingold stated; "I am deeply disappointed that it included retroactive immunity for anyone alleged to have cooperated with the Administration's illegal warrantless wiretapping program."

Read the story in the Washington Post, New York Times, and The Hill.

BNA Money and Politics ($$) reports that the Federal Election Commission (FEC) "hopes to approve 'within the next couple of weeks' a final regulation governing corporate and union funding of political advertising in line with the Supreme Court's decision in FEC v. Wisconsin Right to Life Inc. (WRTL)." It has not been decided if the regulation would be considered at an FEC open meeting or circulated in writing for commissioners to approve. Unfortunately, given the early primary season approaching, this time constraint should not produce a regulation considered hastily. For example, in Iowa the period that restricts ads related to the Republican presidential race begins Dec. 5. "Although there is no public comment period required for a final rule, its effective date will have to be delayed for a congressional review period, the chairman noted."

Svoboda [. . . ] told the FEC commissioners that preserving disclosure of those who fund ads referring to candidates was important to his clients at the DCCC--incumbent House members and challengers running for election. He said the candidates have an "urgent" political need to know who is funding ads in their races so that they effectively respond to such ads. Svoboda was challenged by the two Republican commissioners on the FEC, Mason and Hans von Spakovsky, who asked about the constitutional basis for requiring disclosure. Svoboda acknowledged that the courts have not yet established a clear standard in this area and indicated that an rule requiring disclosure based on the right of candidates and the public to know the identity of those paying for ads was likely to be challenged.

The Panel on the Nonprofit Sector, a committee appointed by Independent Sector, has released Principles for Good Governance and Ethical Practice: A Guide for Charities and Foundations. The document outlines 33 practices or principles that charities and foundations can use to evaluate their organization's policies to ensure that they are keeping with the law. A review of more than 50 self-regulation systems took place before this process was complete. The Chronicle of Philanthropy ($$) reports that "some nonprofit officials at the National Committee for Responsive Philanthropy and elsewhere questioned whether self-regulation was the best way to make organizations more accountable, as well as how the principles could be enforced. They suggested that the emphasis should be on shoring up existing legislation and regulations. For more information, click here and to download the guide, click here.

The Federal Election Commission (FEC) hearing on the electioneering communication rulemaking continued today. BNA Money and Politics ($$) reports that yesterday attorney James Bopp told the commissioners "they should exempt grass roots lobbying ads from regulatory requirements, including disclosure of who finances the ads. He also called on the FEC to repeal its current rule defining express advocacy, which he said was vague and inconsistent with the Supreme Court's decision in WRTL."

Jan Baran, representing the U.S. Chamber of Commerce, and Laurence Gold, Representing the AFL-CIO, said that the FEC should not require disclosure of funding for ads dealing with policy issues and should take the opportunity to repeal a provision of its regulations--11 CFR Section 100.22(b)--which says that express advocacy that does not rely entirely on use of certain "magic words" relating directly to elections. . . . Gold hinted that the federation might accept a rule that did not require the name of every dues-paying member of a union to be listed in an FEC report.

Considering its free speech week, this Washington Post opinion piece (Oct. 17) should be commended. The presidents of NARAL Pro-Choice America and the Christian Coalition of America wrote in support of the fundamental, nonpartisan issue of free speech and the right of citizens to participate in the political process. They reference the events that occurred last month between Verizon wireless and NARAL Pro-Choice America's application for a text-messaging program that enables people to voluntarily sign up to receive updates by texting a five-digit code. "Free speech shouldn't stop when you turn on your computer or pick up your cellphone." Only after vigorous public objection did Verizon change its mind.

This issue is broader than one organization, one company or one topic. The issue is how communications companies can believe they have the authority to block content in the first place. Both of our groups, with other organizations across the political spectrum, are working to raise our members' awareness of the potential for discrimination in communications and of the impact it could have on how we engage in political advocacy in an ever-evolving technological world.

Yesterday House Democratic leaders stopped floor action on HR 3773, the RESTORE Act, postponing a vote after a threatened Republican "motion-to-recommit" that could have destroyed the bill's chances. The motion would have taken the bill off the floor and sent it back to committee for an amendment ensuring the measure would not prohibit any form of surveillance of Osama bin Laden, al Qaeda or any other designated terrorist organization. They plan to put off further action on the bill until next week.

This blog described the events perfectly; "House Republicans ran procedural circles around the majority party, who was forced to remove their FISA reform bill from the House calendar. The House hoped to move in time to send a message to the Senate."

Meanwhile, today the Senate Select Committee on Intelligence is holding a closed hearing to mark up its version of a bill to amend the Foreign Intelligence Surveillance Act (FISA). Reportedly, the Senate version has a provision granting legal immunity for telephone carriers. According to the Washington Post; "Senate Democrats successfully pressed for a requirement that the Foreign Intelligence Surveillance Court review the government's procedures for deciding who is to be the subject of warrantless surveillance. They also insisted that the legislation be renewed in six years." With support of the White House, the Senate bill also does not include "basket" warrants, which would allow the FISA court to issue a single order that could include a large number of targets. We will provide more information on what is included in the Senate's bill once it is made public and reported out of committee.

Update:Senator Chris Dodd (D-CT) has placed a hold on the Senate FISA bill.

Today the Federal Election Commission (FEC) began its two day public hearing on the proposed electioneering communications rulemaking. Commissioner Ellen Weintraub's opening statement notes the questions that will challenge the FEC, looking for answers from the witnesses. The FEC hopes to have a complete rule by the end of November.

CQ Politics covered the story here. This article also picked up on a point that OMB Watched addressed in our comments; "Similar provisions to document grass-roots lobbying were proposed during debate of the recently passed lobbying disclosure bill but were voted down." Kay Guinane, director of nonprofit speech rights was quoted in the article.

But while many advocates from campaign finance watchdog groups are asking the FEC for more disclosure, at least one is advocating the exact opposite. Kay Guinane, director of nonprofit speech rights for OMB Watch, said she is against disclosure and other restrictions because it could infringe on First Amendment issues. "If you have to risk an FEC investigation when you put out your grass-roots lobbying message, you might think twice about doing it, and that would be a loss in terms to the quality of public dialog on legislation and public policy issues," she said.

As a result of more than 650 comments on the proposed changes to the Form 990, reportedly the Internal Revenue Service (IRS) has rewritten parts of the draft and continues to do so. The Chronicle of Philanthropy ($$) reports that the IRS is eliminating several questions, including one that would have required charities to tally the total compensation of their officers, directors, and other key employees, and calculate that total as a percentage of their total expenses. Also being removed is the requirement that nonprofits calculate their fund-raising expenses as a percentage of total contributions and questions comparing operating expenses to an organization's net assets.

OMB Watch submitted comments, saying the "IRS should take the time necessary to produce a useful and truly improved Form 990. We suggest that the IRS provide a new draft of the Form 990 based on comments the agency receives from this proposal. The second draft should allow for public comment before moving to finalize the form."

The Chronicle will host an online discussion of the 990 changes on Wednesday, October 24 to go over what the changes proposed could mean for nonprofit groups, how groups can influence the final version of the form, and how to prepare to meet the new reporting challenges. The discussion is open to everyone, not just subscribers. To find out more information and to submit your questions in advance, click here.

For 90 minutes this morning (Oct.17) the House will debate the RESTORE Act, HR 3773, the surveillance bill meant to fix some of the problems with the Protect America Act (PAA), amending the Foreign Intelligence Surveillance Act (FISA). Yesterday the Rules committee decided to go ahead with floor consideration of the bill without allowing lawmakers the chance to try to alter it. The only changes allowed have already occurred, with combining the two slightly different versions approved by the House Judiciary and Intelligence Committees last week. Additionally, an amendment will be included in the rule for floor debate that would allow a court to issue temporary surveillance orders when an application is under appeal. It would also require any administration request for assistance from telecommunications companies to cite the section of law with which it is in compliance.

During the Rules Committee numerous amendments were blocked much like those offered during the mark up hearings last week. One would have offered retroactive legal immunity to companies that participated in the National Security Agency's surveillance program. Unfortunately an amendment that would have required individual warrants for communications where one party is a U.S. citizen was also voted down.

The Bush administration has threatened to veto the bill if it passes in its current form. In a statement issued Oct.16; "The bill does not result in permanent FISA modernization and it contains no retroactive liability provision. H.R. 3773 therefore falls far short of providing the Intelligence Community with the tools it needs to collect foreign intelligence effectively from individuals located outside the United States."

Civil libertarian groups have split. The ACLU has come out in opposition to the RESTORE Act, while other groups though realizing that the bill is not perfect, support the bill for the improvements from current law. The Center for Democracy and Technology and the Center for National Security Studies are urging passage of the bill. Importantly, the RESTORE Act increases some oversight of the program absent in the PAA.

Did you know it is National Freedom of Speech Week? Nonprofits, schools, individuals, and communities nationwide should help celebrate the first amendment all week, and of course all year round.

Medea Benjamin, co-founder of the anti-war group Code Pink, and Ann Wright, a retired Army colonel, have been arrested in the U.S. while protesting the Iraq war which placed their names in an FBI-run database, the National Crime Information Center (NCIC). Canada relies on the database to screen visitors and when the two women visited the country in August, they were told they would have to apply for "criminal rehabilitation" and pay $200 if they wanted to visit again. Neither did, and when Benjamin and Wright walked into Canada at Niagara Falls, they were denied entry because of their anti-war-related arrests. Read the Associated Press article here. "Now, Benjamin and Wright are asking why the names of people arrested during peaceful protests would be included in an FBI-maintained database meant to track fugitives, potential terrorists, missing persons and violent felons." For more information, see the Code Pink website.

Code Pink now has a petition running calling "on the FBI to stop including minor non-violent offenses on a database meant for serious crimes. We call on the Canadian government to reverse its policy and extend a warm welcome to U.S. peacemakers and other social activists who use the time-honored tradition of engaging in civil disobedience as a way to change unjust policies."

The Federal Election Commission (FEC) will hold a hearing spanning two days and hear from 15 witnesses as part of a rulemaking to incorporate the Supreme Court's recent decision in Wisconsin Right to Life v. FEC. The FEC announced the agenda for the hearing yesterday. On Oct. 17-18 the FEC will consider the notice outlining a proposed rulemaking issued in August which put forth two alternatives to interpret the Court's decision. OMB Watch submitted comments, and for more information, see this article from the latest Watcher.

During the hearing, some witnesses will be calling on the FEC to not require disclosure of those who fund the ads and will hear from those who want the disclosure requirement left intact. For a list of those who will be testifying, see the FEC agenda.

Significant amendments were voted on yesterday during both the House Judiciary and Intelligence mark up hearings on HR 3773, the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (RESTORE Act) a bill to amend the Foreign Intelligence Surveillance Act (FISA). The passage of these measures ultimately improved the bill.

During the Intelligence Committee hearing, Representative Rush Holt (D-NJ) offered an amendment, which passed, with four provisions. The amendment would:

• reaffirm that FISA is the only basis for conducting domestic surveillance;
• require the administration to "fully inform" Congress on any surveillance programs put into place since the Sept. 11, 2001;
• increase the number of FISA court judges and personnel handling FISA warrants;
• and mandate the FISA court to examine and approve how guidelines are applied for surveillance targeting.

An amendment also passed that would require quarterly court reviews of the "minimization" procedures used to protect the privacy of U.S. citizens unintentionally covered in surveillance. Representative Jan Schakowsky (D-IL) introduced an amendment requiring the FISA court to approve guidelines for making sure that individual warrants are sought when "the significant purpose" of planned surveillance is to target people believed to be in the U.S. Click here to read Holt's statement on yesterday's hearing. And be sure to read this blog posting which with the accurate headline, correctly says, "Thank you, Jerry Nadler."

Similar amendments passed during the Judiciary hearing. These include an amendment offered by Representative Jerrold Nadler (D-NY) to direct federal judges to assess government compliance with the procedures and guidelines of the court orders. Representative Sheila Jackson-Lee (D-TX) introduced an amendment requiring the minimization of surveillance of U.S. citizens when a "significant purpose" of the government's acquisition of information is to obtain the communications of a person reasonably believed to be located in the U.S. Robert Scott (D-VA) offered an amendment that would require the attorney general and director of national intelligence to submit to the appropriate committees of Congress a copy of the application to acquire communications of non-American citizens outside of the U.S.

Also to note are the amendments introduced in both committees that were fortunately voted down, such as an amendment to make the Protect America Act permanent, an amendment to remove all provisions requiring authorization to conduct surveillance of non-U.S. citizens located outside the U.S., and an amendment to provide retroactive legal immunity to communications companies who might have cooperated with administration surveillance efforts.

Staffers are now working on reconciling these amendments, and this base bill is expected to be brought to the House floor for a vote next week.

Democracy 21 President Fred Wertheimer has asked the Federal Election Commission (FEC) to issue a clear notice so that 527 groups understand that the organization and its funders could face penalties in the future. The message from the FEC has been that the recent settlements will provide sufficient guidance to others thinking of carrying out similar activities in the future.

The Democracy 21 letter states; "We strongly urge the FEC to issue a Statement of Policy that provides clear notice that 527 groups that engage in the kind of illegal activities the FEC found to have occurred in the 2004 election, and the individuals who organize and manage these groups, including major donors who play such a role, will face substantial penalties, commensurate with the size of the violations, and that such violations face being treated by the FEC as 'knowing and willful' violations."

According to BNA Money and Politics ($$), the Wisconsin Right to Life (WRTL) case has been refered to in ongoing litigation challenging a regulation that the FEC has relied upon in its settlements with Section 527 groups. The rule says the FEC can regulate organizations if they solicit money based on an appeal to support or oppose particular federal candidates, and groups with a federal political action committee (PAC) must finance their activities with at least 50 percent FEC-regulated "hard money." The rule was challenged by Emily's List, a federal PAC that also has a 527 geared towards state and local elections. In recent court filings, Emily's List attorney said the WRTL ruling prevents the FEC from regulating the organization's state and local activities just because its messages included references to federal candidates.

A filing by the FEC said the commission has wide latitude to regulate organizations involved in federal elections and that the WRTL case had nothing to do with Emily's List. The Supreme Court ruling involved corporate and labor union funding of "grass roots lobbying" messages that referred to candidates but were intended to influence legislation or policy, not elections.

Last week the Washington State Supreme Court ruled in a 5-4 decision that a state law intended to punish political candidates for false advertising is an unconstitutional infringement on free speech. The Seattle Post-Intelligencer reported; "the majority said that under that ruling, only defamatory statements are not constitutionally protected speech, and that the new law did not require proof of the defamatory nature of the prohibited statements. Thus, the current law 'extends to protected political speech and strict scrutiny must apply.'"

In August the American Civil Liberties Union (ACLU) of Louisiana asked that payments to churches totaling $120,000, approved by the legislature as part of a general appropriations bill were stopped. In response, on Oct. 5, a federal judge in Louisiana issued an order stating that "non-neutral, direct money grants of taxpayer funds to favored houses of worship are clearly unconstitutional." The ACLU argued that the legislative earmarks violated the First Amendment's Establishment Clause. The grants were not subject to oversight or competitive bidding and the appropriations bill offered no justification for them. The judge found that the grants lacked any specified secular purpose, as required by First Amendment protections prohibiting the government from endorsing religion.

Click here to read the court order blocking payments and here to read the judge's decision regarding the ACLU's standing to sue.

Both the House Judiciary and the House Intelligence Committee passed HR 3773, the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (RESTORE Act). The bill is meant to reform the Protect America Act (PAA) which passed hastily in August to amend the Foreign Intelligence Surveillance Act (FISA). The bill is expected to be sent to the House floor for a vote next week.

The RESTORE Act would require more judicial and congressional oversight of foreign intelligence surveillance. The director of national intelligence and the attorney general would have to certify that the surveillance targets are not U.S. citizens, permanent residents or businesses incorporated in the U.S., and that a significant purpose of the surveillance is to obtain foreign intelligence information. CQ ($$) reports that the "application to the court also would have to describe the so-called minimization procedures the government employed to lessen the aggregation and retention of sensitive information about U.S. citizens. It would bar the dissemination of non-public information gleaned from Americans that was not necessary to foreign intelligence-gathering or law enforcement." For a comparison between the PAA and the HR 3773, click here.

Many civil liberties organizations are concerned that the RESTORE Act does not have a requirement for individual warrants to monitor the telephone calls or e-mails of U.S. citizens who come into contact with suspected foreign terrorists. Some groups would like this to be amended so individual court orders are required when surveillance targeted at people abroad intrudes on Americans who are communicating with people overseas.

Meanwhile, Representative Rush Holt (D-NJ) a member of the Intelligence Committee also introduced a measure to reform the PAA, HR 3782, the Foreign Intelligence Surveillance Modernization Act of 2007.

The American Civil Liberties Union (ACLU) supports Holt's bill and is most concerned with the lack of individual warrants in the RESTORE Act. An ACLU statement on the RESTORE Act can be read here.

The New York Times today discusses the issue of whether telecommunications companies should have legal immunity for helping the government with their surveillance, which is not currently in either House bill, but offered as an amendment during mark up and voted down.

Changes to the House bill were occurring rapidly today and more changes could be made before it is brought to the floor. Check back for more information, and read this article from the latest Watcher.

BNA Money and Politics ($$) reported on a Heritage Foundation event that focused on the Federal Election Commission's (FEC) proposed electioneering communication rulemaking and the Wisconsin Right to Life Supreme Court ruling. "The June Supreme Court decision that struck down restrictions on corporate and labor union funding of political advertisements said nothing about disclosure of who is paying for ads, but disclosure is shaping up as the key question confronting the Federal Election Commission in the wake of the Court's ruling, according to experts debating the issue at an Oct. 4 roundtable discussion." One of the alternative proposals the FEC put forth would remove the disclosure requirements for exempt ads, which OMB Watch supports. However, some say that because the Supreme Court did not address the disclosure issue, the FEC should not either.

Click here to see all of the comments the FEC received.

In response to the Protect America Act (PAA) signed into law in August which temporarily reformed the Foreign Intelligence Surveillance Act (FISA), Democrats are now working on a new, hopefully more conscious piece of legislation to revise FISA. The House Select Intelligence Committee is scheduled to mark up a bill next Wednesday and according to CQ ($$), Majority Leader Steny Hoyer (D-MD) has postponed plans to brief reporters on the bill, originally planned for today (Oct.5). Reportedly the bill would not grant retroactive liability protection to telecommunications firms that cooperated with government surveillance, a top priority for the administration, because the White House has not provided Congress with documents about those activities. House Intelligence Committee Chair Silvestre Reyes (D-TX), "said he favors a requirement that intelligence agencies secure a warrant for monitoring communications involving U.S. citizens in the United States beyond a short emergency period, even if the target of the surveillance is a foreigner located outside the country."

Reyes said the administration should be required to decide within 72 hours whether someone inside the U.S. is involved in a terrorist activity, and if so, the administration must get a warrant to continue monitoring their communications. If they are not, the monitoring activity must stop. However, it is not clear if those provisions will be in the new bill.

Civil liberties advocates are concerned that House Democrats will introduce a bill that hews too closely to the administration's desires. The Congressional Progressive Caucus, which includes 71 House Democrats, issued a statement calling for greater involvement by the Foreign Intelligence Surveillance Court in overseeing government anti-terrorism surveillance, and no "amnesty" for telecommunications companies.

Click here to read the Congressional Progressive Caucus' position on revising FISA.

Roll Call ($$) reports that Senator Barack Obama (D-Ill.) "derailed a plan blessed by Senate leaders to vote on controversial Federal Election Commission White House nominee Hans von Spakovsky, a move giving Democrats time to breathe in the ongoing Senate stalemate on FEC nominees." Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) agreed to a deal that included having a voice vote on the commission nominees only if no Senators objected to von Spakovsky's nomination. However, Obama and others expressed concern that von Spakovsky's nomination was too controversial and should therefore go through regular proceedings. The latest news is that there still is no agreement regarding an individual vote for von Spakovsky. If he is not confirmed the other three FEC nominees would remain pending, but if von Spakovsky is confirmed, the Senate would then vote on the remaining nominees. The Hill reports that "Von Spakovsky's opponents agreed to the deal because it would allow senators to vote against his appointment while voting in favor of the other nominees."

This comes as organizations continue to pressure Congress to oppose von Spakovsky. Read letters from the Campaign Legal Center, the Brennan Center, and the Lawyers Committee for Civil Rights Under, and Public Citizen. Click here to read the letter from the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG urging that there are separate votes on the nominees.

Comments were due yesterday (Oct.1) on the Federal Election Commission's (FEC) proposed rulemaking to make its regulations consistent with the U.S. Supreme Court decision in FEC v. Wisconsin Right to Life. An FEC hearing on proposed rulemaking is scheduled for Oct. 17, with the goal of having a final regulation in place by the end of the year. BNA Money and Politics ($$) reports that the comments focused on the main difference between the two alternatives the FEC proposed, whether to require disclosure of the funding sources for the exempt grassroots lobbying ads.

James Bopp, the attorney who represented WRTL before the Supreme Court, filed comments with the FEC arguing that the logic of the Court's decision was to exempt all grass-roots lobbying messages from BCRA's requirements, including reporting requirements. But, other comments called on the FEC to leave in place its existing rules on disclosure and express advocacy, while implementing the WRTL decision with a narrow exception regarding funding sources.

OMB Watch submitted comments opposing the reporting requirement (alternative 1) for being inconsistent with the Supreme Court ruling.

The OMB Watch comments also addressed the FEC question regarding proposed safe harbors. "The proposed general rule would exempt communications that are 'susceptible of a reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate.' We do not believe this is the best approach, since the proposed general rule is too vague, and the proposed safe harbors are overly restrictive. In the absence of concrete guidance in regulations, safe harbors have a tendency to become de facto rules.

For more information on the FEC proposed rulemaking, click here.

In July we reported that the Congressional Management Foundation (CMF) is working on a project to attempt to solve a problem facing Members and their staff, excessive amounts of e-mail that often causes their systems to crash. Congressional staffers are frustrated with the amount of email while advocates are upset and worried that the correspondence they send to Members might not be getting any attention. Participants in online action campaigns often rely on organizations to research the issues, track legislation, and write correspondence, making participating quick and easy.

CMF hosted a forum bringing together advocacy groups and congressional offices. The forum will result in a report with recommendations for Congressional offices and advice to advocacy groups and vendors trying to get messages to Congress.

Technical barriers such as logic puzzles, misperceptions that vendors send out spam, confusing user experiences and a lack of universal standards (keep in mind Members' offices basically are 540 small businesses) contribute to the problem, according to Mike Panetta, assistant vice president of public affairs and emerging media for the consultant group Grassroots Enterprise. "It's an arms race," said Panetta, also D.C.'s shadow representative. "And at the end of the day, an arms race really hurts the people."

The United States Supreme Court has declined a request to review the case Velazquez/Dobbins v. Legal Services Corporation which challenged the constitutionality of a federal rule that restricts access to lawyers for low-income people. Under the rule, the only way for a legal aid office to use non-federal dollars on certain work, such as representing clients in class action lawsuits or providing assistance to certain categories of legal immigrants, would be to establish a physically separate facility, with separate staff.

The Brennan Center represents the plaintiffs and issued a press release which states; "Complying with this 'physical separation requirement' is so expensive that virtually none of the 138 LSC grantees around the country — which are already so under-funded that they can only represent a small fraction of eligible clients — have been able to comply. For example, plaintiff South Brooklyn Legal Services would have to turn away 500 more people each year if it set up a separate office."

A federal district court in Brooklyn issued a preliminary injunction against the physical separation requirement in December 2004. After an appeal by the government defendants, the U.S. Court of Appeals for the Second Circuit held in December 2006 that the district court had used the wrong legal standard, and lifted the preliminary injunction. It is that decision that the Supreme Court today declined to review. The case now returns to the District Court for the court to apply the new legal standard described by the Court of Appeals.

For background from OMB Watch, click here.