A new 527 group called The Real Truth About Obama, Inc. ("RTAO"), has filed a lawsuit in federal court against the Federal Election Commission (FEC) and the Department of Justice to prevent them from enforcing FEC reporting rules for political committees. RTAO plans to run issue ads examining the Democratic presidential candidate's position on abortion and other policy positions issues.

The group's lead attorney, Jim Bopp Jr., won the Wisconsin Right to Life (WRTL) case last year against the FEC. Bopp argues that this 527 should not have to disclose their activities with the FEC, including independent expenditures and electioneering communications. The group registered with the FEC on July 29.

According to a press release from the James Madison Center for Free Speech; "Its first project is about Obama's radical pro-abortion views and voting record. However, RTAO fears that it will be deemed a federal PAC, if it does the project, because of the FEC's enforcement actions arising out of the 2004 election where various issue-advocacy 527s, such as the Swift Boat Veterans for Truth, were fined for failure to register as a federal PAC, even though they only engaged in issue advocacy."

RTAO's abortion information project includes a website, www.TheRealTruthAboutObama.com, and a radio ad called Change. The website is not operational due to the FEC's enforcement policies that prevent RTAO from raising money for the project. The lawsuit challenges this rule. The Change ad does not have any express words of advocacy of his election or defeat, such as "vote for" or "defeat."

It seems a bit peculiar that the group is arguing that it will only engage in legitimate issue advocacy, yet plans to focus on the public policy positions of one candidate, Barack Obama. That in itself suggests that the content could possibly be interpreted as an appeal to vote for or against a candidate. Even though in RTAO's lawsuit, they extensively cite WRTL, it was in that case that the Court decided that an ad can be regulated "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

RTAO challenges the FEC's "express advocacy" definition. "[T]he FEC continues to enforce its vague and overbroad rule defining 'express advocacy,' even where the communication does not contain such explicit words. If an ad is deemed to contain express advocacy, it becomes an 'independent expenditure,' which is forbidden to corporations, such as RTAO, must be reported to the FEC, must contain a disclaimer, and can trigger PAC status."

An article from MSNBC's online magazine, Contribute, discusses the ways that 501(c)(3) organizations, according to the report, actually engage in illicit campaign intervention.

The report argues that partly because of the Internet, the line between issue advocacy and illegal partisan electioneering becomes crossed more often and easily. "[I]t's OK to put on such events as a voter registration drive or voter forums - or a get-out-the-vote push, as long as all are nonpartisan. Clearly, some issues and causes are aligned more with one party than another - Al Gore and global warming, or George Bush and troop support in Iraq, for starters."

As they should, "501(c)(3)s are considering their potential for political advocacy. [. . .] To help Minnesota nonprofits walk the line — and skirt the ban on political activity — this group created the Minnesota Participation Project, a Web site to help the state's nonprofits define and conduct permissible, nonpartisan voter recruitment efforts." Such voter registration activities are a vital characteristic to 501(c)(3) groups.

"But woe to those nonprofits that go too far. Indeed, the difference between issue advocacy and political intervention can get pretty murky sometimes — and there's a need for clarity that has become especially urgent in this era of instant communication."

Referencing the NAACP and the All Saints Episcopal Church cases; "the IRS actions sent a stringent — albeit mixed - message to the nonprofit community."

The Brennan Center for Justice, along with pro bono law firms filed a lawsuit in Albuquerque challenging a New Mexico law that makes it difficult for groups to conduct voter registration drives. According to the press release, the state law is "an unconstitutional burden on free speech and association by impeding civic groups from helping eligible voters to register."

"Plaintiffs typically register thousands of New Mexico citizens (especially low income, minority, disabled, and young citizens) to vote but have suspended or dramatically curtailed their operations as a result of the challenged law."

The New Mexico law in contention requires that before registering voters, every volunteer or employee has to first pre-register and submit an affidavit to the state and, in some counties, go through an in-person, hour long training. The training is conducted only during business hours and only a few times a month. Completed registration forms must be returned it to county or state officials within forty eight hours, and any "intentional" violation of these rules may be punishable with a jail sentence. Most alarming, no extenuating circumstance, such as a hurricane, will excuse a failure to submit a completed form within forty eight hours, bringing along civil penalties of up to $5,000.

The lawsuit was filed on behalf of four organizations, the American Association of People with Disabilities (AAPD), the Federation of American Women's Clubs Overseas Inc. (FAWCO), New Mexico Public Interest Research Group (NMPIRG), and the Southwest Organizing Project (SWOP). Plaintiffs ask that the 2005 law be declared unconstitutional and that the Secretary of State be barred from enforcing it.

Non-profit organizations like ours rely extensively on volunteers to help when they can, but if the act of volunteering becomes a complicated and risky activity that could land you in jail, there won't be volunteers," stated Robby Rodriguez from SWOP.

After many years, the issue of allowing voter registration at Department of Veterans Affairs (VA) facilities is slowly gaining support. The VA announced that it would assist veterans with voter registration and permit voter registration drives by groups that were vetted by the agency's attorneys, and then reversed this policy within two weeks. Fortunately since then, Members of Congress and some voting rights advocates have been objecting to the VA's policy.

Now, after Veterans Affairs Secretary James B. Peake continues to deny the request to designate VA facilities as voter registration agencies, legislation has been introduced that would require the VA to make voter registration services available at its facilities in states that request it, under the National Voter Registration Act. That includes providing registration forms, answering questions on registration issues and assisting with submitting voter registration forms, including absentee ballots. The bill also would allow nonpartisan groups and election officials to provide voter information and registration information to veterans and require an annual report to Congress.

S.3308 has been introduced by Senator Dianne Feinstein (D-CA), along with Senators Hillary Clinton (D-NY), John Kerry (D-MA), Patrick Leahy (D-VT), Patty Murray (D-WA), Barack Obama (D-IL), Harry Reid (D-NV), Charles Schumer (D-NY), and Ron Wyden (D-OR) all co-sponsoring the measure.

Senator Kerry (D-MA) said, "It shouldn't have taken a legislative solution to fix a bureaucratic problem, but that's what it's come down to in the name of common sense and patriotism."

Alternet reports that, "two dozen top state election officials - from both parties - have signed a letter urging the VA allow voter registration drives." In addition, on Monday July 21, the American Association of People with Disabilities (AAPD), Common Cause, Demos, and the League of Women Voters urged Peake to approve future state requests to allow voter registration at VA agencies and offices. Senator Daniel Akaka (D-HI), chairman of the Senate Veterans Affairs Committee, has also been very vocal. Akaka wrote to Peake contending the argument that such activity on VA property would violate the Hatch Act; "the Hatch Act does not prohibit outside groups, partisan or otherwise, from registering voters at a VA facility if federal employees do not participate.

The Tampa Tribune has reported on Florida's noncompliance with the National Voter Registration Act's (NVRA) requirement that voter registration be provided at public assistance offices. "Florida is failing to help low-income residents register to vote when they sign up for public assistance, say voting rights advocates who may sue over the issue. [. . .] In January, lawyers for three national advocacy groups - Project Vote, ACORN and Demos - complained to Secretary of State Kurt Browning that the number of voter registrations received through Florida's public assistance agencies has plummeted since 1995."

According to Florida Division of Elections data, public assistance agencies turned in 9 percent of voter registrations received in 1995. By 2007, they were contributing 1.8 percent. By 2007, agency registrations had dropped from 120,886 to 10,470. Meanwhile, enrollment in Florida's assistance programs has remained relatively steady.

In addition, we have been following Florida's restrictions on voter registration drives, and the Florida Times-Union reports; "Voter registration drives statewide are under fire from a new state law that establishes stiff fees for groups who undertake them." The League of Women Voters is challenging that law, which a federal judge has until mid-August to decide on.

The Baltimore Sun has highlighted the National Association for the Advancement of Colored People (NAACP) and the fact that it is not allowed to engage in partisan politics, not surprising, as all 501(c)(3) organizations are prohibited from doing so. "Individually, many NAACP members have lauded Obama's nomination as a victory for racial progress. But they also say the organization continues to tread a delicate path, careful not to give the appearance of partisanship, especially since it has been accused of being too political in the past." A month before Election Day 2004, the Internal Revenue Service (IRS) initiated an audit of the NAACP's tax-exempt status because of a speech Julian Bond made criticizing the Bush administration. After two years, the investigation was dropped.

"In an election year, criticism of nonprofits typically increases, as does IRS scrutiny," said Gary Bass, executive director of OMB Watch, a nonprofit watchdog organization in Washington. [. . .] "I would say that the IRS has increased scrutiny the last election cycles, in part because of the gamesmanship that goes on - one side constantly filing petitions against the other side," Bass said. He thinks IRS rules are ambiguous. Any objection or complaint triggers an inquiry, which may or may not lead to a full-scale audit. "For groups who talk about critical policy issues, it then means that they are left with uncertainty as to what they can and cannot do," Bass said.

For more information on this topic, see our resource center, IRS Rules on Election Activities of Charities

Philanthropy News Digest had a "5 Questions For" column with OMB Watch Executive Director Gary Bass. The questions addressed nonprofit advocacy, particularly how philanthropic support of advocacy is changing. During which, Bass commends a new report on the topic from Atlantic Philanthropies.

He states that a question that continues to stir confusion is whether you can still lobby if you receive public-sector funds and questions on nonpartisan voter engagement.

I firmly believe that from his bully pulpit, the new president, whether it is McCain or Obama, should strongly encourage nonprofits to be involved in a broad range of advocacy activities. I also think foundations have a crucial role to play in helping nonprofits express their voice and in creating a positive framework for change in America. You can't sustain the kind of change I'm talking about — big-vision change — with bake sales.