The Federal Election Commission (FEC) released a draft advisory opinion detailing that the newly formed group, SpeechNow.org, cannot accept unlimited contributions from donors if it wants to advocate for or against candidates for federal office. In November, SpeechNow.org submitted an opinion request to collect unlimited contributions from individuals to conduct "express advocacy." The group wanted to support candidates in 2008 "who favor returning America to the state of political freedom and advocate the defeat of candidates who favor speech restrictions in the name of campaign finance reform." In other words, the group wants to support candidates based on their support for free political speech. In response, FEC lawyers have said the group could do that only if it registered as a political committee, which would limit its contributions to $5,000 from individuals.

SpeechNow is making the case that if its speech is independent of any candidate or party, funded only by individuals, the "corruption" argument can not hold up. In addition, they argue that any restrictions on the ability of individuals to associate, by abiding by the FEC regulations, would violate Constitutional free speech rights.

The Center for Competitive Politics asserts that if the opinion were adopted, the group would be silenced. "The opinion would for the first time explicitly extend the full array of federal campaign finance regulations to groups of individual citizens acting independently of candidates and parties without corporate or union support."

Democratic Commissioner Ellen Weintraub voted in favor of the draft ruling written by FEC staff attorneys, but Republican Commissioner David Mason voted against the draft. Commissioner Mason said in a written dissenting opinion; "The distinction between candidate coordinated speech and independent speech is of constitutional significance. . . . Limiting the contribution limits given to an organization like SpeechNow would impose an intolerable, and constitutionally unjustifiable, burden on the independent spending of this organization." However, without a quorum, the commissioners can neither officially adopt the opinion, nor approve SpeechNow.org's request. The group is now likely to challenge the provision in federal court. However, considering the two sitting commissioners disagreed on SpeechNow.org's request, it is unclear how the FEC would defend the draft opinion in court.

An article in the Chronicle of Philanthropy ($$) discusses the difficulty 501(c)(3) nonprofit groups face if they want to know how candidates stand on issues. They must confidently understand the Internal Revenue Service (IRS) rules prohibiting charities from engaging in partisan politics. Unfortunately out of fear, many groups simply do not get involved even though it can be done in a legal manner. Gary Bass, executive director of OMB Watch, was quoted in the article; "organizations are right to be wary because the IRS rules governing political activity by groups that have charity status under Section 501(c)(3) of the Internal Revenue Code are vague." The IRS determines whether a group has violated the law with a "facts and circumstances" test rather than providing a precise, definition what is exactly legal.

To read the IRS guidelines on political activity by charities, click here.

A great example of nonprofits getting involved is the Primary Project started by the National Council of Nonprofit Associations and its affiliate the Nonprofit Congress, in which nonprofit leaders have been asking presidential nominees three questions; "[1]What role has a nonprofit organization played in your life or career? [2] How would you strengthen the economic and social capacity of such organizations? [and 3] How would you work with nonprofit groups to achieve your vision for America?"

In addition, BNA Money and Politics ($$) reports that "charities are responsible for not only for what's on their Web sites, but where visitors may be directed." The IRS "continues to rely on facts and circumstances to determine whether such links violate the strict prohibition against 501(c)3 interventions in political campaigns."

Last year the Supreme Court ruled that genuine issue ads could not be prohibited during the periods before a federal election, but the Federal Election Commission (FEC) maintained that such ads must still contain a political disclaimer and be the subject of FEC reporting requirements which disclose the contributors to the group running the ads. An organization Citizens United challenged these disclosure provisions, arguing that since the ads are genuine issue ads, they cannot be subject to any regulation. In response, the D.C. district court decided that only the Supreme Court could decide whether the ads should still be subject to the disclosure provisions. The district court also ruled that the ads Citizens United wanted to air publicizing its documentary Hillary: The Movie, constitute as "electioneering communications."

"The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her."

Now, Citizens United has appealed this ruling to the United States Supreme.

While yes, issue ads should not be subject to disclosure requirements and should be challenged, however, this was the wrong forum to do so since the film does not address legislative issues.

Read the story in the LA Times here.

The ability to communicate with elected officials is vital to a healthy democracy and civil society. The easiest way to have any form of communication is over the internet, which can best be utilized as a two-way communication between legislative office and constituent. Unfortunately, the websites of many lawmakers are below average. The Congressional Management Foundation (CMF) officially released its "Gold Mouse Report", acknowledging Member, committee and leadership offices that best use their Web sites as constituent communication tools. One key finding included that "Congress needs to recognize that the Internet is an essential information and communications medium."

CMF analyzed and ranked 618 House, Senate, committee, and leadership websites based on five major categories over three months and gave each site with a letter grade, ranging from "A" to "F."

The report accurately states that "[t]here is really no longer any excuse for a congressional office not to have a good Web site. Citizens are increasingly using the Internet to stay informed and get involved in politics, to interact with the government, and to participate in democracy. Congress, in turn, needs to engage with citizens online."

RollCall ($$) reports that "about 57 percent of Member Web sites lacked information about legislative issues with a particular local interest, which is arguably the No. 1 reason constituents visit Member sites to begin with. Twenty-six percent of sites didn't have links to sponsored or co-sponsored legislation, and of those that did, 23 percent did not reference the current Congressional session."

Click here, to read coverage of the Gold Mouse Report in The Hill.

As discussed last week, the Supreme Court heard oral arguments in a case considering Indiana's restrictive voter ID law, which if upheld could disenfranchise countless voters. An editorial in the New York Times suspects this might occur considering the conservative nature of the Court, which has also become "increasingly hostile to voters." And to defend this statement, the Wisconsin Right to Life (WRTL) case is partly given as an example of such hostility. Though we can agree on the danger of upholding the voter ID law, the Court's decision on pre-election advertising restrictions is much different and to compare them in considering the Court's conservative direction misunderstands WRTL.

"Recently, however, the court struck down parts of the McCain-Feingold campaign finance law that limited 'Swift boat' style attack ads on the eve of elections. It was perfectly willing to reverse a federal law when the political power of corporations and wealthy individuals was at stake." Not so; in fact, in the WRTL case the Court was willing to protect the first amendment and ruled that the federal electioneering communications ban is unconstitutional when applied to genuine issue ads, regardless if the ads are produced by nonprofits or corporations. Nonprofits worked hard to protect the law from grassroots lobbying.

The Times editorial accurately warns of the outcome of the Court's voter ID decision, but in providing support of the Court's conservative drift, is mistaken in pointing to WRTL which was a free speech success for nonprofits.

The Financial Times reports on some nonprofits' plans for the upcoming year in 2008. With a troubling economy and increasing income gap, a demand for service organizations will only increase, leaving behind concerns that the groups will have adequate funds. In response, many organizations will become more involved in the political debate, and hopefully lawmakers will have an understanding of the sector's needs. Accordingly, service organizations must lobby the government in a time of economic instability so that the needs of the poor and middle class are met.

And non-profit chiefs are more likely than ever to lobby Washington. "[The Salvation Army] is getting involved with public policy in a non-partisan way. We are apolitical, but all of the issues that face society are impacted by politics," Gaither says. "It's about being a voice for the voiceless."

In pursuing their varied missions, many non-profits are working to cultivate local grassroots support while also broadening their national and global reach. Simultaneously with the launch of national media campaigns, the ACS [American Cancer Society] has trained cancer survivors from all 435 congressional districts to explain pressing policy changes that could facilitate a cure for cancer.

Posted by Amanda Adams, 01:44:27 PM

Thursday, January 03, 2008

In Defense of Free Speech Rights and Fair Elections

An editorial in today's LA Times responds to the worries that outside groups will have dangerous influences on the election, taking on the concept that, "a 'fair' election . . . means ones in which voters are shielded from the propaganda of special interest groups." Importantly, it is noted that the support of wealthy individuals, or newspaper editorial boards, is just as prevalent as any outside group.

The 1st Amendment is a significant barrier to the sort of 'fair' . . . elections in which special-interest groups (but not newspapers or Oprah!) are prevented from saying too much about candidates for public office lest their message change a voter's mind. Huckabee was right to tell the Elks that "your vote counts as much as a person who can write a check for $100,000." But their votes — and all of ours — will be influenced by messages that require the writing of checks, as well as the framing of arguments, to get into circulation. If that's anti-democratic, so is the 1st Amendment.

Posted by Amanda Adams, 05:24:38 PM



What Will Become of the FEC?

The Federal Election Commission (FEC) has begun 2008 with only two sitting commissioners, Republican David Mason and Democrat Ellen Weintraubunder both serving expired terms themselves. A stalled Senate confirmation of commissioners was caused by the controversial Republican Commissioner Hans von Spakovsky who many opposed because of his work in the Justice Department's civil rights division where he supported efforts to require that voters present a photo ID. Bob Bauer at moresoftmoneyhardlaw.com has a few opinions on the state of the FEC, here and here.

Many blame Senate Minority Leader Mitch McConnell (R-KY) for insisting that all nominees were voted on together, and to ensure that von Spakovsky was not confirmed Senate Democrats blocked a vote on all nominations, to some extent causing this FEC "shutdown." A Democracy 21 press release states; "This action by Senator McConnell ensured that beginning on January 1, 2008 there would be no FEC capable of enforcing the campaign finance laws, opening investigations, issuing advisory opinions, writing regulations, bringing lawsuits, certifying public matching funds for presidential candidates or undertaking other activities that require the approval of a majority of the Commissioners."

One issue that will be left unresolved is the issuing of new rules on the disclosure of bundling contributions in accordance with the Honest Leadership and Open Government Act. As the New York Times reports, the "much-ballyhooed provision in the new law is being delayed indefinitely." The article also discusses other aspects of the new lobbying and ethics law and the realities now that the law has gone into effect on January 1.

The FEC will continue to process campaign finance disclosure reports and respond to court challenges. One of those important court cases that will be considered is one that challenges the disclosure requirements for funding of broadcast messages that refer to federal candidates in the weeks before an election. BNA Money and Politics ($$) reports that on January 10 a three judge federal court will hear the case brought forth by Citizens United. The FEC issued rules allowing genuine issue ads prior to an election that mention a candidate's name, but reporting requirements were upheld in the new rules.

Posted by Amanda Adams, 12:24:57 PM