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 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.

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.

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.

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.'"

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.

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.