Yesterday once again efforts were blocked to take up the Campaign Disclosure Parity Act (S.223) by unanimous consent. Watch it happen here. The Sunlight Foundation is still leading an effort to try and uncover why this no nonsense, good government bill, is being blocked. Read the story in the Washington Post.

This article from the New York Times highlights an upcoming vote in the Nebraska state legislature to regulate robocalls. The pending bill in Nebraska would limit the number of automated political calls any household could receive in one day to two, restrict calling to 8 a.m. to 9 p.m., who is responsible for the call would have to be disclosed at the beginning, and indicate whether a candidate approved the message.

Several Nebraska state lawmakers were so outraged by the shenanigans that they are pushing legislation that would impose some of the country's most restrictive regulations on prerecorded campaign calls, both bogus and legitimate ones. Similar bills are in the works in Florida, Michigan, Missouri, Wisconsin and at least a dozen other states, prompted in large part by telephone calls authorized by campaigns during last year's elections.

According to a survey conducted by the Pew Internet and American Life Project, during the 2006 election campaign robocalls were the second most popular form of political communication and nearly two-thirds of registered voters nationwide received the recorded telephone messages.

So far, only a few states, including Indiana, Minnesota and New Jersey, have laws restricting the calls, but more than 20 states have bills now pending. In Missouri and Rhode Island, lawmakers want to establish a political no-call list. In Florida, the existing commercial no-call list would be extended to include the political calls. A bill in Michigan would prohibit early morning and late-night conjunction calls.

Yesterday's oral argument before the Supreme Court in Wisconsin Right to Life, suggests that the grassroots lobbying rights of 501(c)(3) organizations may get greater protection in the court's upcoming decision. In the oral arguments the attorney for the Federal Election Commission (FEC), Paul Clement, admitted that 501(c)(3) organizations would have an "inspirational" challenge to the electioneering communications rule because we cannot establish political action committees (PAC). (The FEC's defense to the rule has been that it does not ban broadcasts that mention federal candidates, but only requires them to be paid for with funds raised separately by a PAC.)

The amicus brief from charities clearly had an impact on the Court.

Early in the oral argument Chief Justice John Roberts asked Clement, "Can I understand you to suggest we ought to draw a distinction in as-applied challenges between a 501(c)(3) organization and a corporation?" To which Clement replied, "I think a 501(c)(3) corporation has a much better as-applied challenge if they can bring it. And that's the as-applied challenge that's sort of been discussed in some of the amicus briefs. The problem is Appellee (WRTL) is not in a position to do that, because they are a 501(c)(4) corporation."

OMB Watch will post a summary of the oral argument on our website in the next few days. In the meantime, the complete transcript of the oral argument is here.

The charities' amicus brief was written by attorneys Robert F. Bauer, Karl J. Sandstrom and Ezra W. Reese of the firm Perkins Coie. Charities that signed the brief are:

National organizations:

• Alliance for Healthy Homes
• American Conservative Union Foundation
• Center for Lobbying in the Public Interest
• Independence Institute
• Independent Sector
• NARAL Pro-Choice America Foundation
• National Council of Jewish Women
• National Council of Nonprofit Associations
• National Legal and Policy Center
• National Low Income Housing Coalition
• OMB Watch
• Violence Policy Center

State organizations:

• California Association of Nonprofits
• The Housing Alliance of Pennsylvania
• Nonprofit Coordinating Committee of New York, Inc.
• The North Carolina Center for Nonprofits
• Pennsylvania Association of Nonprofit Organizations

This morning the Supreme Court heard oral arguments in the Wisconsin Right to Life case, and this morning's news had an abundant number of stories for those who needed to catch up on the intricacies of the case. (A few include; The Appleton Post-Crescent, The New York Sun, Portland Herald) There is good reason why the case is in the limelight, as many say it is one of the most important campaign finance cases in years. The issue at the heart of the debate is quite important considering the relevance to nonprofit organizations, which must be able to engage in grassroots lobbying whenever issues come up, even during the period right before an election. The "electioneering communications" rule in the Bipartisan Campaign Reform Act of 2002 (BCRA) is too broad, and does not allow for an advocacy group to put out ads that purely try to address an issue of concern, or policy stance of a candidate while at the same time not asking the viewer to vote for a particular candidate.

Many are unduly anxious what will result without the electioneering communications rule, for example; "groups warn the justices in the case to be argued today that campaign advertising could take a nastier, more negative turn if the court enhances the ability of corporations and unions to finance ads that influence federal elections." However, a distinction must be made since there are specific circumstances for nonprofits, which can not set up a separate PAC to address genuine issue advocacy that occurs at all times. This was stated in an amicus brief OMB Watch filed along with other charities that strongly urges the court to "take the occasion to grant both clarity and relief to section 501(c)(3) organizations."

Editorials in the New York Times and the Washington Post adamantly express their opinions. For example, the New York Times writes that the case "could determine whether a major new leak opens up, one that would allow corporations and unions to pour unprecedented amounts of money into political campaigns. It is important that the court continue to keep this money out."

The Washington Post comments more realistically that "[law] should not require judges to blind themselves to the obvious context in which these ads are run, but neither should it invite open-ended judicial inquiry into the motives of those who want to speak on public issues. If it finds that the ad in this case does not amount to "the functional equivalent of express advocacy" of a candidate's election or defeat, it needs to do so in a way that will not open the floodgates for a new wave of sham ads."

And Bradley A. Smith and Stephen M. Hoersting in the Washington Times point out that "McCain-Feingold freezes many groups out of the process at the most critical time. For one thing, it's not as if Congress stops voting close to an election. . . . In recent years, within blackout periods, the House and Senate have voted on such high-profile issues as abortion, impeachment, homeland security and appropriations."

The electionlawblog has a run down of the oral arguments which encouragingly notes, "Clement [for the FEC] would like the Court to put the question off, noting that 501(c)(3)s may have a plausible case for an as applied challenge because they can't create a PAC, and running ads against an unopposed candidate might entitle a corporation to an exemption from the PAC requirement." The blog Skeptic's Eye also has observations.

Senate minority leader Mitch McConnell (R-KY) has this op-ed in the Wall Street Journal. He writes:

The freedom to engage in this [grassroots] political speech is set out clearly in the First Amendment, and BCRA's strict limitation on issue advocacy of any kind during campaign season is a fundamental assault on its spirit and intent. Those who agree with me have reason to hope that the Supreme Court will overturn this restrictive provision. One reason is that the court already acknowledged its potential harm in McConnell v. FEC; another is that the number of groups wrongly swept up by the blackout provision will only multiply as the primary season becomes longer. The prospect of so many appeals would itself be a sign of the law's instability.

According to a McClatchy Newspapers story; "Last week's ruling banning partial-birth abortions, revealed it. Coming up next, campaign reform will further clarify how President Bush's conservative appointments and the departure of former Associate Justice Sandra Day O'Connor have reshaped the court." Oral arguments in the Wisconsin Right to Life (WRTL) case will be heard this week, and expectantly, many are attempting predictions in light of the new court in Justice O'Conner's absence. And somehow last week's partial birth abortion ban foretells this changing court that may benefit WRTL. Yet, observers are unsure of the two new justices' views on campaign finance law. Roll Call ($$) has an article today with a run down of the case. And from a New York Times article:

If Alito takes the position of the dissenters" in the 2003 case, said Richard H. Pildes, a law professor at New York University, "that would represent a profound transformation in the power of Congress to reach campaign finance practices. The betting line is that he's likely to go that way.

The Senate Campaign Disclosure Parity Act, S.223, was all set for quick passage with approval out of committee and bipartisan support, until yesterday when a secret hold was placed on the bill. Senator Feinstein has commented; "This is exactly the type of good-government law that the Senate could adopt as a stand alone measure." And yet Senator Lamar Alexander (R-TN) requested the block on behalf of an unidentified Republican senator. The bill in question would require electronic filing of financial disclosure reports by Senate campaigns. This would save time and money, all while making it easier for the public to seek such information. The Federal Elections Commission (FEC) has listed this action as its number one legislative priority. The Sunlight Foundation is trying to find out who placed the hold by encouraging constituents to make phone calls to senate offices asking if they are the one with the secret hold. Afterward, reporting back and the findings will be incorporated in their contact form.

Update: What occurred on the senate floor was actually a secret hold on an expedited vote without debate. Senator Feinstein requested bringing up the bill by unanimous consent, without floor debate. Read the beltway blogroll for a rundown of the events. Sunlight is still urging you to call your senators to find out who is blocking the bill, because after all, "a hold is a hold is a hold, unless you want to debate what the definition of 'is' is."

To participate, click here.

The Federal Election Commission (FEC) has approved five legislative recommendations. One recommendation is to increase the registration threshold for individuals and small groups involved in political campaigns. The FEC suggests the new threshold for requiring small groups to register as a political committee be raised to $5,000. Currently, individuals can volunteer time and their own travel expenses up to $1,000 before it counts as a contribution, now with a suggested increase to $2,000. Another, recommendation is for the Senate to require electronic filing of campaign finance reports, which has already passed committee (S.223). Read the rest of the recommendations here.

The New York Times reports that the Election Assistance Commission (EAC), responsible for conducting nonpartisan election research, down played the findings of experts that there was modest voter fraud around the nation. The EAC instead issued a report that concluded "there is a great deal of debate on the pervasiveness of fraud in elections as well as what constitute the most common acts of fraud or intimidation." The released report endorses justifications for voter identification laws and the assertion made by Republican politicians that voter fraud is pervasive.

The original report on fraud cites "evidence of some continued outright intimidation and suppression" of voters by local officials, especially in some American Indian communities, while the final report says only that voter "intimidation is also a topic of some debate because there is little agreement concerning what constitutes actionable voter intimidation." The original report said most experts believe that "false registration forms have not resulted in polling place fraud," but the final report cites "registration drives by nongovernmental groups as a source of fraud."

This is an interesting contrast in findings; considering the impression that nonprofits producing faulty registration forms were a source of fraud, inviting dangerous consequences for the sector as a whole and hurt organizations who partake in successful registration drives. Additionally two weeks ago the EAC faced criticism for refusing to release another report on voter identification laws. That report found that voter identification laws designed to fight fraud can reduce turnout, particularly among minorities. The commission didn't endorse these findings because of methodological concerns.

Roll Call ($$) reports that the group Club for Growth has switched its tax status from a 527 to a 501(c)(4), a section of the tax code used by social welfare organizations. In defending the change, the organization's president, former Representative Pat Toomey (R-PA), cited increased scrutiny on 527s by the Federal Election Commission (FEC). The group will now be allowed to spend an unlimited amount on lobbying expenditures. Club for Growth is also waiting for a federal judge's decision on whether or not the group, as a 527, should be required to file with the FEC as a political action committee for their activity in the 2000, 2002, and 2004 campaigns. However, a 501(c)(4) tax status does not eliminate any chances of running into trouble with the FEC. For example, if the group engages in prohibited political activities such as running an ad that "expressly advocates" the election or defeat of a candidate.

Toomey wrote to the club's members in a February e-mail. "Such groups proved so effective at highlighting the harmful policies of Members of Congress and presidential candidates like John Kerry that the political class made it practically impossible to continue in that type of structure. Because of the outrageously anti-First Amendment regulatory schemes of the Federal Election Commission," Toomey continued. "And because the self-serving career politicians in Congress are now on the verge of banning the old Club's structure.

Coinciding with a report released yesterday by the Campaign Finance Institute, "Soft Money in the 2006 Election and the Outlook for 2008 The Changing Nonprofits Landscape," the Club for Growth change reaffirms a prediction that during the upcoming election there will be an increased use of 501(c)'s. "There's a growing recognition that 501(c)'s are the vehicles of choice in this legal and political environment."

Representatives Christopher Shays (R-CT) and Martin Meehan (D-MA) have asked the D.C. district court in Shays & Meehan v. FEC (Shays II) to order, yet once again, the Federal Election Commission (FEC) to issue a regulation on when 527 groups must register as a political committee. Senators John McCain (R-AZ) and Russ Feingold (D-WI), represented by the Campaign Legal Center, filed an amicus brief supporting Shays and Meehan. In February the FEC issued a Supplemental Explanation and Justification to explain why it will not issue a rule regarding the political committee status of 527 groups. McCain and Feingold want the court to again find that the FEC has violated the Administrative Procedures Act by not providing the public with a sufficient explanation. They also argue that the FEC's current approach of examining each 527 on a case-by-case system is not working, with particular concern as the 2008 election nears.

Senator Mitch McConnell (R-KY) filed an amicus in the Wisconsin Right to Life (WRTL) case. Bob Bauer at moresoftmoneyhardlaw.com contends it is "the first and so far most significant major constitutional test of McCain-Feingold, and while this engagement was won by his adversaries, he has yet to disarm." McConnell argues that grassroots lobbying broadcasts should not be limited, but also charges that ads without any reference to a candidate or the purpose of influencing an election will not in the end have any influence on the election. As Bauer comments, "he goes one step farther than necessary" because there is not point to agree with the argument that there would be no influence. A candidate's current legislative behavior is bound to have an indirect influence on the voter, but that is not corrupting, as long as the information accurately portrays the candidate's legislative actions.

As already noted, the moresoftmoneyhardlaw blog will be posting analysis of the briefs filed in the case. From today:

No finer brief, none more trenchant nor more constructive, has been filed with the Court in the Wisconsin Right to Life case than the one submitted by Kathleen Sullivan and colleagues at the Stanford Constitutional Law Center on behalf of the Family Research Council (FRC) and other nonprofit advocacy organizations. Here is a presentation that sticks to the point and then brings to the Court's attention a mistake in its McConnell jurisprudence that, if corrected, would go a long way toward settling the issue advertising wars.

The FRC brief considers the decision to not allow nonprofit corporations from funding "electioneering communications" even if funded only from individual contributions. Nonprofit corporations that would like to have such communications can set up PACs, but as this brief correctly states, there are valid reasons why a nonprofit would not want to do so. Some, such as 501(c)(3) organizations, legally can not do so. "The mission of many nonprofit advocacy groups like Amici is not to influence elections, but to advocate on issues. They therefore should not be required to operate as if they are essentially partisan, political committees."

FRC makes a very impressionable distinction between small grassroots organizations and large scare corporations that can afford to look into the intricate Federal Election Commission (FEC) regulations, and more apt to take risk of violations.

Likewise, mega-corporations like General Electric, Time Warner, Viacom, and Disney that happen to own broadcast stations, even while operating them in the economic realm for profit, can promote their political views, and others they may see fit to license, over the airwaves in the form of "news stor[ies], commentar[ies], or editorial[s]" that remain uncurbed in pre-election time periods.

A federal district court ruled that a North Carolina law requiring any association of two or more people to be a PAC and therefore subject to reporting requirements of its communications, to be unconstitutional. The case, involving North Carolina Right to Life (North Carolina Right to Life, Inc. et al. v. Leake) came before the Supreme Court in 2004 but was sent back to the lower courts. The Supreme Court instructed the district court to take into account the ruling in McConnell v. FEC. The McConnell ruling found that "express advocacy" for or against candidates was not a requirement for campaign finance regulation. The press release from the North Carolina Right to Life attorney James Bopp, the same attorney for Wisconsin Right to Life, states;

North Carolina Right to Life has won the right to make communications to the general public discussing state office candidates' positions and record on issues without being forced to shoulder the burdens of forming and maintaining a political action committee.

The state law which requires groups to report based on how the general public may understand the "essential nature" of its communications considering contextual factors, in the new ruling was deemed "vague, chilling would-be speakers who cannot know how a hearer might perceive their message. Judge Boyle also ruled that the statute 'sweeps in speech that is unquestionably protected by the First Amendment as pure issue advocacy,' a move 'that cannot possibly combat electoral corruption."

Catholics for a Free Choice (CFFC) have filed a complaint with the Internal Revenue Service (IRS) against Priests for Life charging that they have engaged in inappropriate campaign intervention that violates their status as a 501(c)(3). CFFC focused on two videos on the Priests for Life website that implicitly supports the presidential campaign of Senator Sam Brownback (R-KS). The candidates are starting campaigning earlier than ever, and apparently exempt organizations are also engaged early in the 2008 campaign.