The Center for Individual Freedom (CFIF) filed a lawsuit challenging a West Virginia electioneering communications law. CFIF wants to run television and radio ads targeting West Virginia's upcoming Supreme Court elections, but doesn't want to disclose how much it spends or who is paying for the ads.

CFIC charges that several provisions of campaign finance law are vague and overbroad, and unconstitutional. The lawsuit states; "This is an action to vindicate core First Amendment rights of free speech, association, and petition that are being infringed by facially vague and untailored provisions of West Virginia law. Plaintiff wishes to engage in public discussion of issues of public policy while West Virginians are focused on such matters by the impending state elections, while candidates in those elections usefully illustrate Plaintiffs points, and while grassroots activity is most effective. Plaintiff is being deterred from speaking, however, by threatened civil and criminal penalties."

The Supreme Court will not hear an appeal from Citizens United, which is requesting a challenge to campaign finance rules that require disclosure of those paying for political ads in the weeks before an election (Citizens United v. FEC). The Supreme Court's decision upholds a lower court ruling that denied the group a preliminary injunction and found that the ads Citizens United wanted to air advertising its documentary Hillary: The Movie, constitute as "electioneering communications." Therefore the group must disclose who funded the ads. Citizens United argues that the ads should be considered issue speech instead.

On February 29, the Supreme Court requested new briefs that responded to the question of whether the Court had jurisdiction over the case or if the case has to be first appealed to the U.S. Court of Appeals. This recent news is the Court's decision that they do not have jurisdiction.

However, the case is not over. BNA Money and Politics ($$) reports that James Bopp, the attorney representing Citizens United, "is still in district court pursuing a resolution of the case, and if an appeal failed in the lower courts, he would once again bring the case up for Supreme Court review. [. . .] The legal team behind Citizens United considers this a novel and important issue and plans to stick with the case."

On April 11 the U.S. District Court for the District of Columbia will hear oral arguments in the SpeechNow.org case. SpeechNow.org wants to advocate for the election of federal candidates who favor free political speech, and is challenging campaign finance law that requires the group to register as a political committee, and limits individual donations to $5,000 per year.

Attorneys for the National Association of Manufacturers (NAM) have filed a brief asserting that those who support the member disclosure law "have put too much emphasis on a half-century-old Supreme Court decision." NAM is challenging a provision of the Honest Leadership and Open Government Act (HLOGA), Section 207, which requires coalitions and associations to reveal members involved in their lobbying.

BNA Money and Politics ($$) reports that "defenders have based their arguments largely on a 1954 Supreme Court ruling, U.S. v. Harriss, which upheld the constitutionality of an earlier disclosure law, the Federal Regulation of Lobbying Act. But the brief filed March 17 on behalf of NAM said the Harriss decision was handed down 'before the current First Amendment standards were formulated,' which limit the government's ability to regulate free political expression."

The NAM brief also argued that Congress's goal in HLOGA was to provide greater transparency for "stealth coalitions"--shadowy groups that usually focus on a single issue and want to obscure who is providing the lobbying clout behind the effort. The agenda of traditional groups like the century-old NAM is already well known, the association indicated. Also, NAM said, the challenged HLOGA provision is a poorly drafted law, which cannot even guarantee it will expose what Congress wanted to shine a light on. The NAM brief suggested, for example, that stealth coalitions can avoid disclosure if they do not have their own lobbyists but instead use lobbyists hired by their members. Even when there is disclosure of members contributing to lobbying efforts, the lobbying issues of interest to these members may not be clear, the NAM brief said. Also, lobbying efforts funded by wealthy individuals, rather than companies, are exempted from the new disclosure requirements, NAM said.

Senator Joe Lieberman (I-CT) wrote to the Internal Revenue Service (IRS) requesting clarification of its standards for investigating candidates' and elected officials' appearances at churches. Lieberman questioned why the IRS chose to investigate the United Church of Christ for possibly violating the ban on partisan electioneering with a speech by Senator Barack Obama (D-IL).

The letter states; "I find the Service's inquiry especially troubling because of the Service's inadequate guidance in this area. Publication FS-2006-17, which the Service issued in February, 2006, and posts on its website, states that candidates may be invited to speak at churches in their individual capacity, and that depending on the circumstances, such invitations can be granted 'without jeopardizing its tax-exempt status.'"

"But I am concerned about the chilling effect on legitimate activity by religious organizations that results from initiating a church tax inquiry without first satisfying the reasonableness standard, and I am further concerned by the lack of clear guidance in this area."

The Voter Education Committee (VEC), a 527 organization, has asked the U.S. Supreme Court to review a case that challenges the constitutionality of Washington state law requiring any organization found to support or oppose a candidate or ballot issue to register as a political committee and have their finances regulated. VEC wants review of a Washington state Supreme Court decision made last year that ruled that VEC should have registered as a political committee and did not find the definition of "political committee" to be constitutionally vague ( Voters Education Committee v. Washington State Public Disclosure Commission, Wash.). The Washington state court found that the committee aired ads opposing the candidacy of former insurance commissioner Deborah Senn paid for with $1.5 million in donations from the U.S. Chamber of Commerce, which should have been disclosed under state campaign finance law.

The Center for Competitive Politics (CCP) filed a statement in support of the petition. CCP states that "VEC argues that political committee status should only apply to non-party organizations that engage in express advocacy. Express advocacy is any form of communication that can only be interpreted as urging the election or defeat of a clearly identified candidate for office using words such as 'elect' or 'defeat."

BNA Money and Politics ($$) reports that in their petition, "VEC noted that the Supreme Court upheld BCRA and its regulatory standard of 'support' or 'oppose' regarding activities and messages originating from political parties. However, the petition argued that this standard is too vague to be applied to non-party groups that get involved in political debates."

This case will likely have significant effects, considering the Bipartisan Campaign Finance Act (BCRA or McCain-Feingold) includes a similar "support or oppose," standard also known as "PASO", promote, attack, support or oppose.

With a vote of 229 to 182, the House passed H.Res. 895 to create a new independent panel, the Office of Congressional Ethics (OCE). The new body will be able to initiate investigations of possible misconduct. Those who opposed creating the panel charged that it would encourage partisan complaints. After a proposal was pulled from the floor twice recently with clear bipartisan doubts, chairman of the ethics task force Representative Michael Capuano (D-MA) made changes to alleviate some concerns. For example, an investigation can only begin when one panel member appointed by the speaker and another by the minority leader agree.

The New York Times reports that "creating a panel of six people of 'exceptional public standing,' the House, for the first time, delegated the authority for regulating behavior in the House to nonlawmakers. Current members of the House, federal employees and anyone who has been a registered lobbyist in the past year would be ineligible."

Overall, the new Office of Congressional Ethics was sought to strengthen the internal ethics review process, and as a response to the voters' view of an unethical Congress. As Majority Leader Steny Hoyer (D-MD) commented; "[During the last election] you know what the people thought about this, the People's House that we love. And that, my friends, is why we're in the majority. Because the people thought changes were necessary in this House. The people asked for change. They asked for accountability."

Americans United for Separation of Church and State asked the Internal Revenue Service (IRS) to investigate Grace Community Church, a Houston church whose pastor issued a letter of endorsement for U.S. House of Representatives candidate Shelley Sekula Gibbs. The pastor's endorsement letter identifies himself as senior pastor of Grace Community Church. "I have pastured in the 22nd District for 24 years. It is not often I endorse a candidate for office. I want to know if they represent my values. I have thoroughly discussed the issues of life, marriage and family with Shelley over the years."

In the letter to the IRS, AU Executive Director Barry W. Lynn wrote, "Nowhere in the letter does Riggle state that he is speaking as a private citizen. . . . No attempt is made to distance the church from this endorsement. Although the IRS permits pastors to endorse candidates as private citizens, it cautions that pastors must not do so in their official capacity as congregational leaders."

A front page article in the Wall Street Journal ($$) discusses that Rev. Jeremiah Wright Jr., the pastor of presidential candidate Barack Obama's church, has frequently supported Obama during services. "Mr. Wright's and his successor's repeated enthusiastic promotion of their famous parishioner may be running afoul of federal tax law, which says churches can endanger their tax-exempt status by endorsing or opposing candidates for public office.

Scholars and attorneys say that a growing number of congregations are delving into issue advocacy and partisan politics, a trend dating back to the 1980s, when the religious right enlisted churches to fight abortion. An increasing number of complaints to the IRS over church politicking have triggered agency probes into both liberal and conservative religious groups.

In some instances, the church's ministers alluded to Sen. Obama without naming him. During a Trinity sermon observed by a Journal reporter on March 2, the Rev. Otis Moss III, the pastor, preached, "There was a non-Babylonian, a young man who heard the word of God and said, 'I have the audacity to hope!' Now the whole nation says, 'Yes, we can! Yes, we can! Yes, we can!'"

The Campaign Legal Center and Democracy 21 have filed a friend of the court brief, charging that the SpeechNow.org lawsuit "is about whether wealthy donors can each contribute hundreds of thousands, or indeed, millions of dollars to sophisticated committees often run by Washington political operatives, closely associated with parties and candidates, in order to finance campaign advocacy . . . [T]he Supreme Court has recognized that laws which prevent the circumvention of contribution limits thereby serve important governmental interests by protecting the integrity of the campaign finance laws."

SpeechNow.org, a 527 organization who plans to advocate for the election of federal candidates who favor free political speech, has filed a lawsuit challenging federal campaign finance laws that prohibit contributions of more than $5,000 per year to political committees as an unconstitutional violation of free speech and association rights.

In response, SpeechNow.org has filed a memo stating their opposition to the amicus. Bob Bauer at moresoftmoneyhardlaw.com considers this move a mistake on the part of SpeechNow. "SpeechNow, in short, has to engage with the issue, and win its case, on the level of constitutional principle and analysis, taking on all comers. This is why it is not the best of starts to attempt to dodge amici."

Campaign Legal Center and Democracy 21 argue that 527s' "track record of serving as conduits for large donors seeking to avoid the limits on contributions to the political parties — limits that were recently enacted by Congress, and upheld by the Supreme Court, to shut down the corrupt soft money system. . . . The Supreme Court has recognized that laws which prevent the circumvention of contribution limits thereby serve important governmental interests by protecting the integrity of the campaign finance laws." One interesting argument made in the amicus is that because SpeechNow donors want to donate more than the allowed limit of up, to 5,000 per year, an amount larger than what most Americans can afford, the speech of the public will be hurt.

A measure to create a new Office of Congressional Ethics (OCE), a panel of non-House members that would revise the House ethics process, has been delayed twice in a week. Majority Leader Steny Hoyer (D-MD) has told House Democrats to expect a vote next week, but CQ ($$) suggests that such a plan "might be an overly optimistic goal." Many members oppose turning over House ethics investigations to outsiders. Possibly, if there is no vote on the outside ethics panel next week, it could be held until early April.

Some Democrats support a bipartisan alternative (H Res 1018) instead of the one offered by Representative Michael Capuano (D-MA), Chairman of the Special Task Force on Ethics Enforcement, H Res 895, and another suggestion would expand the current 10 member ethics committee by adding four former House members, two from each party (H Res 1003).

Campaign Legal Center, Democracy 21 and Public Citizen filed an amicus brief in support of the Justice Department to defend a member disclosure requirement in the new lobbying disclosure law. National Association of Manufacturers v. Taylor challenges Section 207 of the Honest Leadership and Open Government Act of 2007 (HLOGA). Under HLOGA, lobbyists and lobbyist employers are required to disclose the names of coalition and association members that contribute more than $5,000 to the lobbying of the organization and "actively participate" in the planning, supervision, or control of the lobbyist's activities.

Their amicus defends the disclosure requirement by citing the 1954 Supreme Court ruling, U.S. v. Harriss that upheld the Federal Regulation of Lobbying Act, maintaining that "it was justified by Congress' interest in gathering information about 'those who for hire attempt to influence legislation or who collect or spend funds for that purpose.' Following this seminal decision, federal and state courts have been almost unanimous in upholding lobbying disclosure statutes based on the state interest in informing the public of the persons and groups that are attempting to sway the legislative process."

Citizens for Responsibility and Ethics in Washington (CREW) also filed a brief supporting the constitutionality of the disclosure requirement.

In The Hill, President and CEO of NAM defends the decision to go to court. "The Honest Leadership and Open Government Act also offers a classic example of legislators aiming at one target — 'stealth lobbying campaigns' — and hitting another. Does anyone really consider the NAM a 'stealth organization'? Everyone knows who we are and which industries we represent."

Last week the Supreme Court ordered that both sides in Citizens United v. Federal Election Commission must file new briefs on whether the Court may hear the appeal. Citizens United is challenging the disclosure requirement for those funding "electioneering communications" (ads mentioning federal candidates 60 days before a general election or 30 days before a primary), as applied to ads for the group's film Hillary: The Movie. U.S. Solicitor General Paul Clement, representing the Federal Election Commission (FEC), asked the Court to dismiss the case or affirm the lower court's ruling . The new briefs are due March 10 and reply briefs due March 13, leaving open the chance that the Court will decide whether to consider the case at its next Conference on March 14.

Before deciding whether to take the case, the Court wants this procedural question answered; whether the Court is required to rule in the case. As BNA Money and Politics ($$) details, a part of the campaign finance law being challenged, "called for a three-judge district court to decide constitutional challenges to the reform law, with that court's decisions put on a fast track for a final Supreme Court decision. However, the use of a three-judge court in BCRA cases became optional beginning last year . . . But, it still was not clear whether that three-judge court's decision not to grant an injunction could be appealed directly to the Supreme Court or should go first to the U.S. Court of Appeals for the D.C. Circuit."

Meanwhile, BNA detailed last week that FEC Chairman David Mason suggested that the FEC cannot enforce the rule defining "express advocacy." BNA ($$) reports; "The rule--11 CFR Section 100.22(b)--says the FEC may regulate the funding of political messages based on their timing and context and may go beyond a narrow range of "magic words" calling for a vote for or against a candidate. Mason said such broad regulation now must be considered unconstitutional in light of a Supreme Court ruling handed down last year in FEC v. Wisconsin Right to Life Inc. . . . . Mason's four-page statement on the Gunowners of America case said his view was that the only standard the FEC should apply to regulating voter guides is whether they use words that "expressly advocate the election or defeat of a clearly identified candidate." He said a broader provision of the FEC rules discussing the context and timing of political messages--Section 100.22(b)--was "constitutionally suspect for purposes of future enforcement matters."

The numerous ramifications of having an FEC with only two commissioners have caused many to blame lawmakers who had a hold on the nomination of Hans von Spakovsky. However, Senators Barack Obama (D-IL) and Russell Feingold (D-WI) have announced that since December they no longer had holds on his nomination. Majority Leader Harry Reid (D-NV) would like separate votes on the four FEC nominees, but Minority Leader McConnell (R-KY) has insisted the Senate take up all pending FEC nominations in a single vote.