The House is expected to vote soon on the recommendation to create an independent office to consider ethics complaints made against lawmakers. The task force, led by Representative Michael Capuano (D-MA), was created last year as part of the House's overall effort to reform House ethics standards. Many expect passage of the measure that will set up the Office of Congressional Ethics (OCE), a panel of six board members appointed by the House speaker and the minority leader, with current members and lobbyists ineligible to serve. The body will review alleged ethics violations and then refer matters for further investigation or other action to the House ethics committee.

According to the New York Times; "Inquiries could be started by two members, and the panel would have up to 30 days to conduct a preliminary investigation. At the end of that time, the panel could vote to end the investigation. If a second phase is agreed upon, it could take up to 45 additional days before a required referral to the ethics committee. The report to the panel could recommend no further action, more inquiry or simply provide the facts of the case."

Relying on the Wisconsin Right to Life (WRTL) decision, a newly formed 527 committee argues that they can broadcast their ads, and that under WRTL the pieces are issue advocacy. The 527, the American Leadership Project (ALP), claims that it will not engage in express advocacy and will focus its efforts on issues that are important to the middle class such as the economy.

Meanwhile, Bob Bauer (also Senator Barack Obama's lawyer) at moresoftmoneyhardlaw.com argues that their actions violate federal campaign finance law and the group should be considered a political committee.

It is questionable if this ad titled "Tell Hillary to Keep Working" from ALP could in fact subject to an "interpretation other than as an appeal to vote for or against a candidate." It appears to be very supportive of Senator Clinton's candidacy.

ALP spokesman Roger Salaazar stated; "We are not going to be airing any advertisements that contain express advocacy on behalf of a federal candidate. These are issue ads that focus on issues that are important to the middle class."

According to the election law blog, the ad "is exactly the kind of election-related speech that the Roberts Court seemed to bless with a huge exemption in WRTL." Given that it is unclear whether or not it is issue advocacy, that statement is also questionable.

Whether a group engaged in express advocacy can spend an unlimited amount of money is the subject of the SpeechNow.org case. Read OMB Watch coverage of the SpeechNow.org case here.

The U.S. Supreme Court did not consider the Citizens United case during its February 15 conference, and now a decision on whether the Court will review the challenge to Federal Election Commission (FEC) rules will wait until February 22. Citizens United is a 501(c)(4) organization claiming that television ads for its film, Hillary: The Movie, should not be subject to donor disclosure requirements under FEC rules. Citizens United's lawyer James Bopp had previously requested that the Court rule on the case during its current term. The government has asked the group's lawsuit be dismissed, claiming that previous Supreme Court decisions have supported disclosure of the financial sources of electioneering messages.

BNA Money and Politics ($$) reports that the "court had been scheduled to consider the motions in the Citizens United case during a private conference of the justices on Feb. 15, but no result was announced when orders in dozens of other cases were made public late Feb. 15 and again on Feb. 19."

As expected after the Federal Election Commission (FEC) issued a draft advisory opinion in January that SpeechNow.org cannot accept unlimited contributions from donors, the group plans to now file a federal lawsuit. SpeechNow.org is challenging the campaign finance law that requires that they become a "political committee" in order to advocate for or against candidates. As a registered as a political committee, its contributions would be limited to $5,000 from individuals. Represented by the Institute for Justice and the Center for Competitive Politics, they are requesting a preliminary injunction and ask that an expedited hearing on that request be scheduled within 20 days.

A press release states; "SpeechNow.org is not a PAC or a political party, it takes no corporate or union money-only individual contributions-and it will never donate to or coordinate with candidates or political parties. It is simply Americans talking to Americans about an issue of vital public importance: the right to speak freely about politics and whom to elect to secure it."

According to a Roll Call ($$) article, "If Speechnow.org ultimately wins in court, the group agreed that other activists, conservative and liberal alike, could copy its carefully crafted bylaws, raise unlimited cash from individuals and begin running ads in favor of or opposing candidates, expenditures that would be disclosed to the FEC."

BNA Money and Politics ($$) reports that the National Association of Manufacturers (NAM) lawsuit that is trying to block enforcement of a disclosure provision of the new lobbying and ethics law, has in fact been put on a fast-track schedule that could lead to a court decision before the first disclosure reports are due on April 21. Judge Colleen Kollar-Kotelly said in a court order filed Feb. 8 that a briefing schedule was agreed on that ends in March. All parties agreed to convert the application for a preliminary injunction to a request for a decision on the merits. Therefore, if a ruling is in favor of the government on the merits, the case will be dismissed.

NAM officials have indicated that they do not know whether they will comply with the new law's disclosure requirement if the association does not get a court order blocking the provision. The association argues in its lawsuit that the provision violates the First Amendment rights of NAM and other trade groups to speak out on policy issues and lobby to protect their interests. . . . NAM announced Feb. 6 that it had filed the suit asking the federal district court in Washington to block enforcement of Section 207 of HLOGA, which requires increased disclosure by lobbying organizations of their members and affiliates. The organization said the requirement would lead businesses to curtail their membership in associations because of fear of possible economic retaliation for taking an unpopular stand on policy issues.

An article in BNA Money and Politics ($$) addresses "whether the Internal Revenue Service [IRS] needs to focus so heavily on facts and circumstances as the primary test to determine if the groups have violated prohibited political activity rules" and the complexities that arise given the new Federal Election Commission (FEC) electioneering communications rule that allows nonprofits to broadcast issue ads that mention a candidate during periods before an election as long the funding of the ads are disclosed.

Engle of Arent Fox said that in the Wisconsin Right to Life decision the Supreme Court warned the FEC against taking a "free range facts and circumstances approach" to analyzing issue ads. The court told the agency to nail down a test that would more mechanically spit out the answer on whether something was or was not an electioneering communication. This prompted practitioners to ask if IRS might do the same thing. Everything we do is facts and circumstances. So I have no answers, I just have facts and circumstances," Judith Kindell, IRS senior technical adviser to the director of exempt organizations said repeatedly at the ABA session.

The National Association of Manufacturers (NAM) has filed a lawsuit, National Association of Manufacturers v. Taylor, in federal court challenging Section 207 of the Honest Leadership and Open Government Act of 2007, charging that the disclosure rules violate the First Amendment because they are "vague, overbroad and burdensome." The provision being challenged requires registered lobbying organizations and associations to disclose the names of any members that contribute more than $5,000 to the lobbying of the organization who "actively participate in the planning, supervision, or control of such lobbying activities." The provision was meant to disclose "stealth coalitions." NAM also requested a preliminary injunction to prevent enforcement of the provision until the case is decided. A press release from NAM quotes President John Engler extensively ;

It would require associations like the NAM to release the names of many members who contribute more than $5,000 for lobbying activities, violating their right to privacy. The penalties for failure to disclose this information are severe. It is safe to assume that as businesses become aware of the serious implications of this law, many of them will curtail their membership in trade associations. The effect will be to compromise their First Amendment right to express their opinions in the legislative process, and also undermine trade associations which play a critical role in the development of public policy by government.