BNA Money and Politics ($$) reports that yes, the Federal Election Commission (FEC) is considering how to respond to the Supreme Court ruling in the Wisconsin Right to Life case. Commission Chairman Robert Lenhard said that he and his fellow commissioners did not have anything to say yet about the decision, but they expect to have an announcement soon.

The FEC has struggled in the past with the question of whether and how to write a regulation protecting grass roots lobbying messages from BCRA restrictions, but has been unable to reach a consensus. The new Supreme Court opinion, which provides guidance about which ads the Court views as constitutionally protected, could provide an impetus for a new effort to write an FEC regulation on the issue. It remains far from clear, however, whether the five current FEC commissioners will be able to agree on what such a rule should look like. The FEC tried to tackle the issue last year in response to a request for a rulemaking from a wide range of politically active organizations, including the Chamber of Commerce, the AFL-CIO, and several others. But the commission put off final action, as Democratic commissioners argued that the FEC should wait to see how the courts ruled.

The article notes the FEC's actions last August denying an exemption for certain ads that address specific legislation or policy. Last year's FEC proposal was put forward by Republican FEC commissioner Hans von Spakovsky who is now facing a controversial Senate confirmation. Von Spakovsky argued that the exemption would preserve First Amendment rights to petition the government, while ensuring that messages were not express electoral advocacy.

The House passed the Deceptive Practices and Voter Intimidation Prevention Act of 2007, (H.R. 1281) to prohibit deceptive practices in federal elections, making it a felony to knowingly communicate false election information to prevent another person from voting. BNA Money and Politics ($$) reports that "the new House bill did not reflect GOP concerns about voter fraud, no one voiced opposition to the measure during a brief debate on the House floor June 25. The bill was passed by voice vote under a special procedure for noncontroversial measures, known as suspension of the rules." A similar bill has been introduced in the Senate (S. 453) by Senator Barack Obama (D-IL).

Roll Call ($$) offers insights as to what the Federal Election Commission (FEC) may now do after the Supreme Court ruling in the WRTL case. An option for the FEC would be an emergency rulemaking process which circumvents the public comment period, but would inevitably bring criticism. The more probable scenario would be for the FEC to do nothing and continue to address possible issue ad violations on a case-by-case basis, as the agency does with complaints made on 527 groups.

Despite being a prolonged process, ideally, the FEC would issue guidance on the court decision using the rulemaking process. FEC spokesman Bob Biersack "suggested the procedure may set off a special-interests slugfest, pitting campaign finance reformers against a hodgepodge of issue-based groups such as the U.S. Chamber of Commerce and the AFL-CIO." Regardless, the importance is that any vagueness set forth by Chief Justice's express advocacy test would hopefully be made a bit clearer. Republican campaign finance lawyer Michael Toner noted that a paragraph in the majority opinion could act as a starting point for any new FEC regulations. The paragraph states:

First, their content is consistent with that of a genuine issue ad; the ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter," Roberts wrote in his opinion. "Second, their content lacks indicia of express advocacy: the ads do not mention an election, candidacy, political party or challenger; and they do not take a position on the candidate's character, qualification or fitness for office.

We can only wait to see which route the FEC will take in responding to the court ruling. Preferably some clear guidance will be set because as the 2008 campaign season begins nonprofits will remain active in public policy and should not have to wonder whether or not they are pushing the boundaries.

The Washington Post accurately describes how many people spent their day yesterday. "The political world scrambled yesterday to reckon with the Supreme Court's loosening of limits on 'soft money' expenditures and its implications for the 2008 campaign season: a potential surge in television advertisements paid for by unions and corporations that in recent years had fewer outlets for their cash."

The editorials and new stories continue and the complexity of the case is made obvious in the vastly different interpretations where observers can find multiple points of both agreement and disagreement. An editorial in the St. Louis Post-Dispatch, takes issue with the ruling as a free speech victory because the speech in question is "free only if you can afford it." This editorial and many others in the main stream media ignore the impact on nonprofits, and no, they are typically not as wealthy as corporations, but were unfortunately scooped up in the electioneering communication ban. As the amicus brief from charities states; "Section 501(c)(3) organizations cannot accumulate commercial wealth to dominate the political debate; their resources, by law, must be devoted to public purposes."

The commentary on the WRTL decision will continue throughout the black out period (30 and 60 day pre-election period) as today's ruling is seen in action. Initial responses have begun, and here at OMB Watch, we are pleased with the safeguard in place for grassroots lobbying communications. However, others are concerned that today's opinion "will likely lead to a new proliferation of corporate and union funded campaign ads in the 2008 election season."

The consequences are unknown, especially since clarity lays in the Chief Justice's view that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. WRTL's three ads are plainly not the functional equivalent of express advocacy under this test. First, their content is consistent with that of a genuine issue ad: . . . ."

This new test announced by the Court is a bit broader than what a group of 17 charities (including OMB Watch) requested in an amicus brief filed in the case. Amici urged the Court to provide clarity and relief to section 501(c)(3) organizations since there are no exceptions for nonpartisan broadcasts. We will now see if the Federal Election Commission will issue any regulatory amendments.

A post from Bob Bauer's blog moresoftmoneyhardlaw.com, "BCRA Ad Ban Bopped on the Head, Hard," provides some initial reaction. Bauer notes five clear points about the majority opinion. One point is an agreement with the lower courts' method of determining whether an ad is the functional equivalent of express advocacy, by way of looking at content not context.

The New York Times has this article, "Justices Loosen Restrictions on Campaign Ads" and there will likely be many more additions to the SCOTUS blog.

The Supreme Court issued its decision in the Wisconsin Right to Life (WRTL) case this morning ruling by 5-4 that the group had a First Amendment right to air the ads that named Senator Russ Feingold (D-WI) who was up for re-election. The case challenged the constitutionality of a part of the Bipartisan Campaign Reform Act of 2002 (BCRA), the "electioneering communications" rule which bans incorporated nonprofits from airing any broadcast that refers to federal candidates 60 days before an election or 30 days before a primary. And the court found that yes, as applied to the facts of WRTL's 2004 ads, the law was unconstitutional and the broadcasts were not the equivalent of express campaign speech. Justices Scalia, Kennedy, and Thoms would have declared the section of BCRA unconstitutional, but Roberts and Alito only said the group's ads should not have been banned. According to the opinion;

the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the functional equivalent of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases.

Read the opinion here. More analysis to come.

The Federal Election Commission (FEC) has introduced a new tool on its website to track presidential campaign donations as part of an effort to make campaign finance data more accessible. An online map graphically displays individual contributions to 2008 Presidential candidates organized by zip code. Users can compare contributions to specific candidates, all candidates, or all candidates from a political party, and you can also export the data into an Excel spreadsheet.

The New York Times reports on the tax-exempt organization of presidential candidate John Edwards, the Center for Promise and Opportunity.

But it was his use of a tax-exempt organization to finance his travel and employ people connected to his past and current campaigns that went beyond what most other prospective candidates have done before pursuing national office. And according to experts on nonprofit foundations, Mr. Edwards pushed at the boundaries of how far such organizations can venture into the political realm. Such entities, which are regulated under Section 501C-4 of the tax code, can engage in advocacy but cannot make partisan political activities their primary purpose without risking loss of their tax-exempt status.

Because the organization is not required to disclose its donors — and the campaign declined to do so — it is not clear whether those who gave money to it did so understanding that they were supporting Mr. Edwards's political viability as much or more than they were giving money to combat poverty.

During an American Institute of Certified Public Accountants not-for-profit industry conference Internal Revenue Service (IRS) Exempt Organizations Director Lois Lerner told participants that the IRS will be closely watching the political activities of exempt charities as the 2008 presidential election season gets underway. Lerner said, "it's going to be a very interesting year." The IRS has already begun monitoring contributions 501(c)(3) organizations have made to political action committees and those made directly to a candidate. A 2006 audit of these types of contribution problems found the same results of a 2004 audit.

The politicization of the Department of Justice (DOJ) has seeped into the confirmation of FEC Commissioner Hans von Spakovsky. Yesterday's hearing proved to be divisive. Von Spakovsky's questioning focused on his former position as a lawyer in the Voting Rights Section of DOJ's Civil Rights Division from 2001 through 2005. Particularly Senators Dianne Feinstein (D-CA) and Richard Durbin's (D-IL) questioning suggested that his work at the DOJ disqualifies him from serving a full term at the FEC. There is a particular concern with Von Spakovsky's track record of suppressing minority votes and favoring Republicans. While at the DOJ, von Spakovsky wrote an article under the pseudonym "Publius" for a Texas law journal in 2005 that supported voter ID laws. He also "could not recall" important details, such as whether or not he saw an analysis of the Georgia voter ID law and its effects on minorities.

From McClatchy Newspapers: "Time and again during his confirmation hearing, he cited either the attorney-client privilege or a cloudy memory for his purported role in restricting minorities' voting rights. Von Spakovsky couldn't remember blocking an investigation into complaints that a Minnesota Republican official was discriminating against Native American voters before the 2004 election."

Also at the center of attention was a letter that a group of former voting rights attorneys in the Division sent to the committee calling for the rejection of his nomination. Feinstein said the concerns expressed in the letter made it "really problematic for this committee to vote" to recommend von Spakovsky's confirmation by the Senate. Von Spakovsky commented that he was not "the decision-maker" on the matters raised in the letter, though he agreed with them. A committee vote on the FEC nominees will not take place for at least a week. TPMMuckraker.com finds it "amazing what happens when a former Justice Department official sits behind a microphone."

Tomorrow the Senate Rules and Administration Committee will hold a hearing on four nominations to the Federal Election Commission (FEC). Hans A. von Spakovsky is currently serving as a temporary commissioner on the FEC and will be considered tomorrow for a six-year term. Von Spakovsky's nomination has become a hotly contested issue. An article in the Washington Post notes that the hearing "could become a critical moment in the debate over political influence in the Justice Department." Opponents of his nomination point to his track record in the civil rights division at the Department of Justice. J. Gerald Herbert, currently with the Campaign Legal Center sent a letter to Senators Dianne Feinstein (D-CA) and Bob Bennett (R-UT), leaders of the Rules Committee, strongly opposing the confirmation. Donna Brazile agrees, and in this Roll Call ($$) opinion piece outspokenly objects.

A vote for von Spakovsky will and should be seen as a vote of support and endorsement of the unprecedented politicization of the Justice Department. A vote for von Spakovsky is a vote in favor of voter suppression and the purging of eligible citizens from the voter rolls. A vote for von Spakovsky is a vote to dilute the voting strength of minorities, seniors and youth. A vote for von Spakovsky is a vote for a man who once advocated that citizens could not go to court to have their voting rights enforced under the Help America Vote Act.

Alert:The awaited 2006 Political Activity Compliance Initiative Report (PACI) has been released along with new guidance on political activities for exempt organizations. The Revenue Ruling addresses voter guides, public forums, voter education, get-out-the vote drives, candidate appearances, issue advocacy, and activities by organization leaders. OMB Watch will soon put out an analysis in response.

Update: Read our summary of the report covering the initial findings of the 2006 PACI enforcement.

Posted by Amanda Adams, 05:29:41 PM