The Alliance Defense Fund (ADF), an Arizona nonprofit, has started an effort to encourage ministers to "use their pulpits to preach about election candidates this September." 501(c)(3) nonprofits, including churches, are prohibited from endorsing or publicly opposing political candidates or intervening in candidates' elections. The group would like if one sermon prompts an Internal Revenue Service (IRS) investigation that becomes a court battle, leading towards an outcome ruling the tax provision unconstitutional.

The ADF press release states; "The new initiative will equip, protect, and defend pastors who wish to exercise their First Amendment right to openly discuss the positions of political candidates and other moral and social issues from the pulpit. Participating pastors across the country will deliver a sermon along these lines in their own churches Sept. 28."

The Wall Street Journal reports; "Alliance fund staff hopes 40 or 50 houses of worship will take part in the action, including clerics from liberal-leaning congregations. About 80 ministers have expressed interest, including one Catholic priest, says Erik Stanley, the Alliance's senior legal counsel."

Americans United for Separation of Church and State (AU) responded with a press release denouncing the initiative, saying the "Religious Right group's plan to ask churches to violate federal tax law on electioneering is deplorable."

Indiana's primary was Tuesday May 6 and news reports detailed accounts of nuns and students who were unable to vote.

The effects of the Supreme Court decision were also felt outside of Indiana in various state legislatures. In Kansas, lawmakers approved a voter ID measure similar to Indiana's law. It would not go into effect until 2010, and some expect a veto from Governor Kathleen Sebelius. And in Missouri under a proposed constitutional amendment, voters could decide whether to enact a similar photo ID requirement for voting.

These events illustrate why voter education and poll-worker training should be expanded under the Help America Vote Act (HAVA). Voting should be made easier rather than harder. A compelling editorial in the New York Times titled, "Voting Rights Are Too Important to Leave to the States," recommends that Congress "set minimum voting rights standards that would apply nationwide and ensure that all eligible Americans could vote."

Congress should also regulate voter challenges at the polls. Parties and candidates often use bad-faith challenges as a dirty trick — to intimidate voters or to slow down voting in certain neighborhoods. Senator Sheldon Whitehouse, Democrat of Rhode Island, has a good bill that would require challengers who are not election officials to sign an affidavit stating why they believe a specific voter is not eligible.

"Yet, the congressional officials in charge of implementing the new disclosure system have provided no guidance, forms, or even computer passwords that thousands of lobbyists will need to comply with the new disclosure system required by the Honest Leadership and Open Government Act of 2007."

This reporting will apply not only to lobbying firms and organizations with in-house lobbyists; individual lobbyists also will have to report their campaign contributions and payments to charities linked to officials. Lobbying organizations and individual lobbyists will use the new forms to report their contributions, as well as payments for events honoring government officials, or charitable contributions to entities linked to members of Congress.

President Bush announced the nomination of three new members for the Federal Election Commission (FEC) which could possibly resolve the current impasse facing the six member agency. An inability to confirm nominees has left the FEC without a quorum, and with only two commissioners, "the agency [is] paralyzed in the midst of a heated presidential campaign."

And the nominees include Democrat Cynthia Bauerly and Republicans Donald McGahn and Caroline Hunter. Ellen Weintraub would remain on the commission as a holdover and the nomination of Steven Walther also is pending before the Senate. Opposition to the controversial nomination of Hans von Spakovsky, a former Justice Department official, has continued the FEC stalemate and President Bush refuses to remove his nomination. However, according to the New York Times, "Republican officials were now willing to allow each of the nominees to be voted upon separately"

David Mason, the current Republican chairman, was not renominated. A spokesman for Senate Majority Leader Harry Reid (D-NV) said; "A full commission was virtually assured if the White House maintained its own Republican nomination of David Mason, who was cleared for confirmation. By abandoning Mr. Mason and instead sticking by Mr. von Spakovsky, the White House has abandoned experience and independence for partisan loyalty. That is the White House's choice. It is a regrettable one. Nonetheless, we will work towards the confirmation of the remaining nominees and expect to defeat Mr. von Spakovsky."

As Bob Bauer notes, "It is not hard, on these facts, to make out the politics." Mason indicated previously that John McCain may not be eligible to withdraw from the presidential primary public financing system. The situation is described with this blog's title, "Throwing FEC Commissioner Mason Under the Bus to Help Senator McCain?" which predicts, "that Republicans ultimately allow separate votes. They need the FEC to approve Sen. McCain's expected request for public financing in the general election portion of the campaign. They need that more than the Democrats now need a functioning FEC."

On May 1, 2008, in a 2-1 decision the Court of Appeals for the Fourth Circuit ruled a North Carolina law prohibiting political action committees from accepting individual contributions of more than $4,000 to be unconstitutional.

In North Carolina Right to Life v. Leake, the Court of Appeals found that the contribution limit as applied to committees making only independent expenditures did not further the state's interest in preventing corruption, therefore burdening the right of political association. As in the Supreme Court's Wisconsin Right to Life decision, the Fourth Circuit Court also found that it was unconstitutional to rely on contextual factors to determine whether a communication "supported" or "opposed" a candidate. The opinion states such "standards typically lead to disputes over their meaning and therefore litigation."

[A]ny attempt to identify communications as election-related without focusing on words that explicitly label them as such threatens to infringe on protected First Amendment liberties. . . . Therefore, . . . a communication can be deemed the "functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The purpose of this requirement is to avoid chilling political expression by forcing a speaker to have to defend his communication from regulation.

Some consider the case to be an "issue that is surely headed to the Supreme Court either in this case or in another case, such as the SpeechNow.org case." SpeechNow.org is challenging federal campaign finance law as too restrictive of independent political groups and as a violation of the First Amendment.

An article in BNA Money and Politics ($$) reports that the new Form 990 requires organizations to provide more information to the Internal Revenue Service (IRS) on their political activities.

Referencing a recent court decision that determined that the IRS should not have revoked the tax exempt status of a 501(c)(4), Craig Engle of the law firm Arent Fox, commented that the "IRS has a mixed record in being able to back up its efforts in court. . . . [the decision] might encourage similar [501(c)(4)]groups to increase their political involvement."

The four-page Schedule C of the new Form 990 requires filers to describe their "direct and indirect political campaign activities." It also asks for detailed information about Section 527 political organizations to which a filer has contributed. Another part of the schedule asks for detailed information about a filer's lobbying activities, including direct lobbying to influence legislation, as well as "grass roots" lobbying to influence public opinion.

When the draft Form 990 was released OMB Watch submitted comments on the political activities section, Schedule C.

Last week the Democratic Congressional Campaign Committee (DCCC) filed a second complaint with the Federal Election Commission (FEC) against the organization Freedom's Watch. Now the DCCC has asked the Internal Revenue Service (IRS) to investigate whether the group should lose its tax-exempt status. The DCCC believes the group should instead file as a 527 political organization rather than a 501(c)(4).

Freedom's Watch spokesman Ed Patru was quoted in the Politico, describing the IRS filing as a "massive case of selective indignation.' Patru said the DCCC is suffering from both a 'fundamental misunderstanding of the regulations governing 501(c)(4) communications' and an agenda that isn't popular with voters."

"The IRS, on the other hand, has signaled that it is closely monitoring the political activities of nonprofit groups this year, which means there may be more traction for the DCCC's charges there [as opposed to the FEC]."

On Apr. 28, 2008, the League of Women Voters of Florida and several voting rights advocates filed a new lawsuit challenging a Florida voter registration law that imposes prohibitive fines on voter registration groups and risks preventing eligible Florida citizens from registering and voting in the 2008 elections.

Under Florida law, fines are levied against charities for each voter registration not submitted within ten days of its completion. For each late registration, a nonprofit conducting a voter registration drive would be fined $50, posing a tremendous financial burden on nonprofits seeking to legally conduct voter registration drives.

As quoted in a press release by her organization, Dianne Wheatley-Giliotti, president of the League of Women Voters of Florida and a plaintiff in the suit, said,

"This law makes it extremely risky for our volunteers and for our organization to conduct voter registration drives in Florida… The escalating fines make voter registration drives prohibitively expensive, even for individuals who just want to help once a month. The threat of paying costly fees will chill registration efforts and keep eligible voters from the voter rolls."

To learn more, read the League of Women Voter's press release on the suit here and check out OMB Watch's Sept. 2007 article on the Florida voter registration rules Nonprofits Challenge Two Florida Laws Regulating Voter Registration.

Update:
The Brennan Center for Justice issued a press release announcing that the third-party voter registration law will not be enforced until July. "As a result, groups and individuals who conduct voter registration drives in Florida can proceed with their voter registration activities without fear of being fined under the law, until at least early July 2008."

The 501(c)(4) organization, U.S. Term Limits, now has some more trouble. The Democratic Senatorial Campaign Committee (DSCC) has filed a complaint with the Internal Revenue Service (IRS) claiming that the group violated the law by not disclosing on its Web site that contributions made to the group are not tax-deductible.

Roll Call ($$) reports that the "complaint against U.S. Term Limits comes as the Internal Revenue Service is stepping up its enforcement of nonprofit organizations that engage in political activity, particularly 527s and 'social welfare' groups that register under section 501(c)(4) of the tax code. The DSCC's complaint to the IRS is the first time that the committee has sought to strip an outside political group of its tax-free status."

Meanwhile, the Democratic Congressional Campaign Committee (DCCC) filed a second complaint with the Federal Election Commission (FEC) against the organization Freedom's Watch. The DCCC complaint alleges that Freedom's Watch ran a television "attack ad that directly and illegally advocates the defeat of a Democratic candidate and also for failing to disclose the names of the donors funding that ad."

1 - Under Trained and Not Enough Poll Workers: In each primary covered by Election Protection, the dedicated cadre of poll workers misapplied many election rules — from what ballot to give which voter, to what to do when election equipment broke down — causing voters to unnecessarily cast provisional ballots or, worse, to leave the polling place without voting.
2 - Election Machinery Breakdowns : Last-minute changes in voting equipment and new procedures at the polls caused confusion among voters, poll workers and election administrators often leading to disenfranchisement. But it was not only human error and confusion; ballot scanners jammed, electronic voting machines broke down and new electronic poll books malfunctioned.
3 - Registration Roll Problems: From state to state, eligible voters who submitted timely registration applications failed to appear on the registration rolls. Other voters showed up on the rolls registered with a political party other than the one with which they intended to register.
4 - Confusion Over Voter Identification Requirements: Voters across the country were improperly asked for identification. Some poll workers, apparently confused about the requirements in their state, were implementing illegal and restrictive voter identification requirements, turning away eligible voters who did not have identification.

On Wednesday, voting-rights advocate ACORN (Association of Community Organizations for Reform Now) filed suit against the state of Missouri for failing to implement a key provision of the National Voter Registration Act ("NVRA") of 1993 in failing to provide voter registration opportunities at state public assistance agencies. According to ACORN's press release on the lawsuit, ACORN is seeking a preliminary injunction that would require Missouri's Department of Social Services (DSS) to come into compliance with the NVRA as soon as the court can set a hearing date.

ACORN is represented by lawyers from national groups Project Vote, Demos, and the Lawyers' Committee for Civil Rights Under Law.

The official complaint filed by ACORN is available online through votelaw.com.

For more information on state enforcement of the NVRA provision designed to enable low-income Americans to register to vote more easily, read OMB Watch's recent article "States Failing to Implement Critical Voting Rights Laws"

An article in the St. Louis Dispatch also provides more information on the lawsuit.

Representative Jeb Hensarling (R-TX) has introduced the Blogger Protection Act of 2008, HR5699. The bill would amend the Federal Election Campaign Act to exempt bloggers and their internet activity from being considered as a contribution to or expenditure of a campaign. The bill would "cover blogs and other Internet and electronic publications under the general media exemption pertaining to expenditures." Therefore bloggers would be able to write about the positions of federal candidates without their material being considered a contribution to any campaign. What about bloggers at nonprofits?

The Center for Competitive Politics (CCP) supports this bill. A posting from CCP details chairman Bradley A. Smith's remarks; "The FEC eventually issued regulations two years ago preventing bloggers from being hampered by campaign finance laws. But the blogger protections are regulatory and bloggers do not enjoy statutory protection. 'Without this law, there is no guarantee that a future Commission won't regulate the blogosphere,' Smith observed. 'Congress doesn't need to act for regulations to change.'"

The Chronicle of Philanthropy has put together a new section of their website that has information about the presidential candidates and where they stand on the issues that matter to nonprofit causes. The Chronicle also invites readers to send in suggestions and additional information. Click here to go to the Chronicle's Special Report on the Campaign 2008.

The Internal Revenue Service (IRS) has announced that its Political Activities Compliance Initiative (PACI) will be in effect for the 2008 election season. "The PACI program seeks to educate section 501(c)(3) organizations such as charities and churches about the federal law concerning political campaign activity and to enforce the law in this area." The IRS press release reports that letters are being sent to the national political party committees, and have asked candidates that their contacts with charitable organizations do not unintentionally put the group's tax-exemption at risk.

The IRS has also posted a program letter to its Exempt Organizations employees from Lois Lerner, the director of exempt organizations. The letter explains the PACI objectives, to provide information on the prohibition on political campaign activity and to "maintain a meaningful enforcement presence in this area."

The letter notes two areas where past experience has proven the need fore more attention; issue advocacy and internet cases. The memo emphasizes that the facts and circumstances test will still be used, for example, "instances involving issue advocacy carried out through single issue pamphlets described as 'voter guides'."

While these single-issue pamphlets do not on their face provide information on specific candidates or elections, that should not end the inquiry. . . . consideration must be given to the context in which it is distributed, and to whether the manner of distribution and other facts and circumstances surrounding the communication tips the scale in one direction or another. Distribution of a communication that on its face appears to satisfy the requirements of a permitted issue advocacy communication may become impermissible campaign intervention if it is accompanied by a statement, or an action, that ties a position articulated in the communication to a particular candidate or election.

The letter warns; "EO must be prepared to face taxpayer challenges, which may lead to court, regarding IRS published positions on issue advocacy, whether the fact patterns involved match the examples provided in the Revenue Ruling or present novel facts and circumstances."

Meanwhile, earlier this week, Roll Call ($$) reported that "[t]ax regulators are hinting at an imminent crackdown of outside political outfits masquerading as nonprofit organizations [. . .] Lerner [. . . ] recently told Roll Call that the agency is taking a 'close look' at allegations involving excessive political activity, particularly by 'social welfare' organizations that register under section 501(c)(4) of the federal tax code."

Robert Lenhard, one of the Democratic nominees for the Federal Election Commission (FEC), has withdrawn his name from consideration. This latest news means it could be even longer until the FEC is up and running with six commissioners.

However, this editorial from RollCall ($$) suggests that "the way out would be for the White House to nominate - and the Senate quickly confirm - two new commissioners, giving the panel four members, two from each party, and the ability to get work done this election year."

Senate Majority Leader Harry Reid (D-NV) sent White House Chief of Staff Joshua Bolten a letter saying Lenhard made this decision because of the Senate's delay in confirming the nominees. Reid's letter stated that "given the complete unwillingness among Republicans to constitute a functional FEC, I could not assure him of timely confirmation. This development now makes a resolution of this conflict more difficult because I have lost an exceptional leader for the FEC who will need to be replaced. That will necessitate a search for a new Democratic nominee and a new nomination process. That process typically takes at the least several months. "