Next Wednesday May 21, the Senate Rules and Administration Committee will hold a hearing on the nominations of Cynthia L. Bauerly, Caroline C. Hunter, and Donald F. McGahn to be members of the Federal Election Commission (FEC). As Roll Call ($$) notes; "clearing the first major hurdle for the White House-backed plan to put the agency back in business by Memorial Day. . . . Under President Bush's proposal to reconstitute the six-member elections regulator, the three new nominees would be combined with sitting Democratic Commissioner Ellen Weintraub and two holdover picks, Republican Hans von Spakovsky and Democrat Steven Walther."

The Internal Revenue Service (IRS) will be holding a free phone forum on Rules for Tax-Exempt Organizations During An Election Year. The Forum is scheduled for June 9, 2008, and will be repeated the following day. Space is limited and will be reserved on a first-come basis, and organizations may register as a group. According to the IRS, the forum will discuss the distinctions between political activity, lobbying and general advocacy, and which activities are permissible by 501(c)(3) charities, 501(c)(4) social welfare organizations, 501(c)(5), 501(c)(6), and 527 political organizations. Participants can submit questions, in advance, to be answered during the sessions.

The session on June 9 is scheduled for 10:00-11:00 a.m. (EST) and on June 10 for 1:00-2:00 p.m. (EST). For information on how to participate and to reserve a spot, click here.

After last week's announcement of new nominees to the Federal Election Commission (FEC), not much progress has been made. Senate Majority Leader Harry Reid (D-NV) has responded; either remove Hans von Spakovsky's name or allow individual votes on the FEC nominees. In addition, Reid offered his support if Hans were replaced with David Mason. BNA Money and Politics ($$) reports;

Reid said in May 12 letter to White House Chief of Staff Josh Bolten that Senate GOP leaders have balked at Democrats' insistence on a separate vote for the most controversial Republican nominee, Hans von Spakovsky. This was the case even though the White House, through a spokeswoman, had publicly agreed to support an up-or-down vote on von Spakovsky, Reid noted. Senate Republican Leader Mitch McConnell (R-Ky.) has consistently indicated, on the other hand that von Spakovsky's nomination must be approved along with any other FEC nominations confirmed by the Senate.

BNA Money and Politics ($$) reports that the Internal Revenue Service (IRS) is considering a project to look at 501(c)(4) organizations. During the American Bar Association Section of Taxation conference session on election issues for tax-exempt organizations, Judith Kindell, a tax law specialist in IRS's rulings and agreements section, addressed the issue of 501(c)(4)s. "Immediate contact does not work well for 501(c)(4)s, she said, because the issue for them is 'are they paying the appropriate amount of tax?; do they have an activity that is their primary activity that is in furtherance [of their tax-exempt purposes?] You can't just look at one activity, you have to look at the full scope of their activities, so we do have some plans to do that look-back.' she said." Kindell recommended that lawyers report to the IRS if they witness (c)(4)s that exceed their permitted activity. 501(c)(4) organizations may engage in partisan political activities, as long as it is not their primary purpose.

Greg Colvin of Adler & Colvin, who moderated the panel on election issues, said reporting on political candidate campaign activity includes describing the activities, indicating the amount of money spent, and reporting volunteer hours. Now that the information must be revealed, it could be the basis for IRS determining that some organizations, such as 501(c)(4)s, have violated the prohibition on political activity not being their primary purpose, he said. The reporting will be intense if you are a 501(c)(4), 501(c)(5), or 501(c)(6) and engaged in some political activities, he said. Organizations will have to jump through hoops involving a separate segregated fund or political action committee and the Section 162 nondeductible business tax, to name a few.

According to Rock the Vote, more than six million voters under 30 have cast ballots in the 2008 primaries and caucuses so far. A very conservative estimate is that this more than 2.2 million more than voted in the most recent comparable primaries.

To learn more, check out Rock the Vote's recently updated 2008 Primary Turnout Factsheet.

According to a May 12, 2008 story in the New York Times— Voter ID Battle Shifts to Proof of Citizenship — lawmakers in Missouri are expected to support a constitutional amendment that would enable election officials to require proof of citizenship to register as a voter in the state. Sponsors of the amendment — which requires the approval of voters to go into effect— argue that it is necessary to prevent illegal immigrants from voting.

Jon Greenbaum, a former voting rights official at the Department of Justice and now the director of the voting rights project at the Lawyers' Committee for Civil Rights Under Law, a liberal advocacy group, is quoted in the article, saying,

"Everyone has been focusing on voter ID laws generally, but the most pernicious measures and the ones that really promise to prevent the most eligible voters from voting is what we see in Arizona and now in Missouri."

The amendment pending in Missouri follows the recent Supreme Court decision in April in Crawford v. Marion County Election Board, in which the Court ruled that Indiana could require photo-ID of voters at the polls.

Arizona is currently the only state that requires proof of citizenship to register to vote. Since the requirement was implemented in 2004, more than 38,000 voter registration applications have been rejected by Arizona election officials.

For more on the repercussions of the recent Supreme Court voter ID decision, see OMB Watch's blog — Supreme Court Voter ID Consequences.

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]."