Last week an editorial appeared in the Balitmore Sun titled "Here come the thought police," which outlines the many reasons some privacy and civil liberties groups oppose Representative Jane Harman's (D-CA) Homegrown Terrorism Prevention Act (HR1995). At first glance, the bill overwhelmingly approved by the House in October appears safe, but many fear that it could lead to the criminalization of beliefs, racial or religious profiling, and unconstitutional restrictions on speech. The bill would create a national commission to examine the causes of violent radicalization, domestic terrorism and ideologically based violence in the U.S., and to make legislative recommendations. The editorial states:

Any social or economic reform is fair game. Have a march of 100 or 100,000 people to demand a reform - amnesty for illegal immigrants or overturning Roe v. Wade - and someone can perceive that to be a use of force to intimidate the people, courts or government. The bill defines "violent radicalization" as promoting an "extremist belief system." But American governments, state and national, have a long history of interpreting radical "belief systems" as inevitably leading to violence to facilitate change.

The American Civil Liberties Union (ACLU) has come out in opposition, out of concern that the bill could end up stifling dissent. Many consider the bill's language to be too broad and could even lead to censoring the Internet. The ACLU issued a press release stating; "As an organization dedicated to the principles of freedom of speech, we cannot in good conscience support this or any measure that might lead to censorship and persecution based solely on one's personal beliefs." In response, Harman sent a letter to the director of the ACLU's Washington Legislative office. Meanwhile, Susan Collins (R-ME), the ranking member of the Senate Homeland Security and Governmental Affairs ranking has a introduced companion measure to the House bill.

Trade associations still do not want to be included in the stealth lobbying coalition provision of the Honest Leadership and Open Government Act (S.1). The Hill reports, "Trade groups like the U.S. Chamber of Commerce say a new lobbying law could require the release of their member lists, violating freedom of association protections granted by the Constitution." The U.S. Chamber of Commerce and the National Association of Manufacturers have sent a letter to the Secretary of the Senate and the clerk of the House asking for "guidance" on how to interpret the new reporting requirements.

A week has passed since the Federal Election Commission (FEC) approved a new electioneering communications rule to interpret the Supreme Court's June decision in the Wisconsin Right to Life case. With three drafts to consider, the FEC adopted a broad interpretation of evidence of "express advocacy" in ads. Under the rule change an organization may use corporate or union money to run independent ads as long as the overall message is a call to action on a public policy issue and does not mention an election, political party or an opposing candidate, or take a stand on a candidate's character, qualifications or fitness for office. The rule provides for a "safe harbor" and if a communication does not qualify for the safe harbor, the FEC will consider whether the communication includes any "indicia of express advocacy."

Commissioners voted 4-1 to require that financing for any exempt ads paid for by unions or corporations be publicly disclosed. As he has in the past, Commissioner Hans von Spakovsky supported the idea of removing the disclosure requirement, but that motion failed. The FEC disclosure requirement would affect grassroots lobbying, even though in January of this year, Congress unsuccessfully tried to require more disclosure of organizations that engage in grassroots lobbying.

After much contemplation and commentary, most are quick to assume that now corporate and union funding for ads up until elections will just be abundantly out of control. Critics say groups will now be able to run campaign ads disguised as issue ads. The only way to test out this theory is to wait; however, the vagueness of the rule leaves open that possibility. The FEC will likely have to deal with the ramifications and decide whether ads crossed the line. Unfortunately many groups who want to engage in advocacy all year round, even prior to an election, are still left confused.

After the Federal Election Commission (FEC) published a General Counsel's draft final rule last week rule that was significantly different than the rule proposed for public comment, the commissioners this afternoon approved an alternative proposal submitted late today. The rule adopted this afternoon is an amended version of Chairman Lenhard's proposal including an amendment offered by Commissioner Weintraub, making clear that the Commission will take into consideration the ad's content along with whether the ad contains "indicia of express advocacy." The rule also kept the existing disclosure requirements. The text of the rule as adopted has not yet been released, but check back for further analysis. Reactions will continue to pile up, but for starters, check out this blog from Bob Bauer.

The Washington Post highlights the new publication Seen But Not Heard: Strengthening Nonprofit Advocacy and the executive director of OMB Watch. In light of a certain disdain for lobbyists, we all must be reminded that charities need to lobby more. "Bass's biggest problem is convincing charities that they not only can make their case to government, but that they really ought to do so. In effect, he needs to convince his fellow do-gooders that lobbying is not so bad." Disturbingly, "a third of nonprofits polled recently owned up to 'lobbying' two or more times a month. But when asked if they 'advocate,' closer to half admitted to that. Many nonprofits also are unsure how much lobbying the law permits them to do."

BNA Money and Politics ($$) reports on further implementation of the new lobbying and ethics law (S.1) which amends the Lobby Disclosure Act of 1995. Reportedly, new federal lobbying disclosure reports will allow lobbyists to make one single electronic filing, as opposed to filing separately with both the Senate and House. Many are also anticipating instructions on how to comply with the gift and travel restrictions. The Senate Ethics Committee also released on Nov.13 new forms on privately sponsored travel. Meanwhile, a House ethics task force will offer a plan for an independent office, but outside groups or individuals will not be able to file a complaint. The panel will be appointed by the House speaker and minority leader.

The Federal Election Commission (FEC) has scheduled a special meeting Nov. 20 to approve a new rule on electioneering communications in accordance with the Supreme Court's decision in FEC v. Wisconsin Right to Life Inc. (WRTL). BNA Money and Politics ($$) reports that the rule "is expected to set critical ground rules for political ads in the 2008 campaign season and beyond. The issues to be addressed include whether the sponsors of ads will have to be disclosed and whether certain types of ads, such as attacks on personal character, still will be out-of-bounds for corporate and union funding." At least four commissioners must vote in favor of the rule in order to approve it. The draft of the rule has not been released.

Update:The draft rule can be read here.

The Campaign Finance Institute has issued a press release announcing an effort led by OMB Watch which culminated in a letter to Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) urging them to drop the Ensign Amendment to S. 223, the Campaign Disclosure Parity Act. The unrelated amendment would require charities, religious organizations, and civic nonprofit organizations to disclose all of their donors who contributed $5,000 or more when they file an ethics complaint against any Senator. This is clearly meant to defeat a bill that has no public objection. The bill would simply require electronic disclosure of Senate campaign contributions.

Our letter stated; "Its unmistakable purpose is to discourage organizations from taking action to keep government accountable. Its retaliatory nature is counter to donors' privacy rights and the First Amendment rights of association and speech, and raises significant constitutional questions."

Letter in the News: BNA Money and Politics ($$) reported; "Signatories of the letter to Reid and McConnell included organizations ranging from the liberal Alliance for Justice and OMB Watch to the American Conservative Union and James Bopp, general counsel of the James Madison Center for Free Speech."

The LA Times reports on an option for political campaign donors that is expected to become more popular as time closes in on the presidential election, donating to a nonprofit. "It is the 501(c)(4), named for the tax code that defines it, that seems to have struck a chord with people looking for new ways to organize their independent fundraising."

And the New York Times mistakenly cautions that the Supreme Court's decision in the Wisconsin Right to Life (WRTL) case can partly be to blame for the influx in "soft money" donations to nonprofits prior to an election season. The article considers some efforts to fund ads as attempts "to plot ways of channeling money into advertisements and get-out-the-vote activities."

"Last week, as the first step in that effort, a group including John Podesta, the chief executive of the Center for American Progress, a liberal research center, and a former chief of staff for President Bill Clinton, and Anna Burger, a senior official of the Service Employees International Union, filed papers to form a nonprofit group." Actually the group formed a 527, The Fund for America, the topic in a recent Roll Call ($$) article. The Fund for America was formed to raise money and fund existing organizations. "The strategists said it's too early to know which specific campaigns the new group will underwrite but that it is expected to focus exclusively on issue-based television and radio campaigns, door-to-door canvassing and direct mail." Unlike 501(c)(3)s or 501(c)(4)s, the purpose of 527s is to get involved in elections, but they are not supposed to expressly advocate for or against a federal candidate, unless they comply with FEC rules.

Yet we must remember, that even though some nonprofits are set up immediately prior to an election, they still may establish a genuine issue campaign. Foundations are now becoming more involved with independent campaigns that seek candiates' stance on issues, as the Chronicle of Philanthropy ($$) reports. The article highlights foundations that are investing in new advocacy campaigns to accomplish its policy goals and to get candidates to talk about their issues. An example of organizing the public and presidential candidates to promote an issue is the Ed in '08 campaign.

Douglas W. Nelson, the Casey foundation's president, says the grant maker took great care to ensure the antipoverty campaign did not unintentionally promote any particular candidates. "It's not necessarily a legal concern, as much as it is, Does this have enough integrity so we would not be accused of being a stalking horse for anybody or anything?" he says.

Kent Cooper, a disclosure expert and former Federal Election Commission official who closely monitors reports on congressional travel, told BNA: "The August recess gave several organizations the opportunity to switch strategies and fund several major trips that included a large number of members." The sponsors and lawmakers were reassured by new procedures requiring sponsors to get pre-approval from the House ethics committee before each trip, ensuring that the trip complies with the rules, he said.

Eventually the approval of the trips will be available online. A part of the new law requires the House to set up an online database with travel information by August 2008 and a similar database for Senators is required by January. The Senate Ethics Committee is expected to announce by Nov. 13 whether the new travel rules will go into effect on that date or will be delayed. Until then, senators and staff can continue travel without pre-approval and without the new limits on travel sponsorship.

An article in Roll Call ($$) addresses another element of carrying out the ethics and lobbying bill that was signed into law in September, the stealth lobbying coalition disclosure provision. Coalitions will have to disclose any organization that contributes at least $5,000 per quarter and actively participates in the lobbying campaign. Trade associations are not exempt from the rule, which means they could be forced to disclose their members. As a result, many trade associations are threatening to sue, arguing that forcing groups to name their members could violate First Amendment rights. They also assert that as a 501(c)(6), they already face reporting requirements from the Internal Revenue Service (IRS). A representative from the American Society of Association Executives was quoted as planning to seek a legislative change, and other trade associations are planning on sending a letter this week to the House Clerk and Secretary of the Senate outlining their proposed guidelines.

For more information on implementation of the Honest Leadership and Open Government Act, read this article from the latest Watcher.