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Happy Valentine’s Day FEC! SpeechNow.org is filing a lawsuit against the FEC today, asking a federal court to allow it to advocate for or against federal candidates without having to comply with contribution limits. The way things have been going in these cases, the SpeechNow.org argument has a really strong chance of succeeding… it takes no corporate money and it does not coordinate with federal candidates nor make contributions to federal candidates. It’s (kind of… sort of) akin to the successful arguments made decades ago in MCFL. If that rings a bell, that case opened things up for certain types of ideological 501(c)(4) organizations to make independent expenditures.

In any event, pay attention to this one if you want your nonprofit to be able to engage in more election-related advocacy. It’s got a lot of election lawyers taking notice.

A charity’s nonpartisan advertisement is drawing the attention of some in the reform community. The ONE Campaign’s ad is
described by the NY Sun:

At issue is a brief sequence in ONE’s television ad showing simulated campaign buttons for 14 presidential hopefuls from both major parties. “Ask each presidential candidate if they’re on the record fighting global poverty and disease,” the ad’s narrator intones. “One voice, plus yours and millions of others. They will hear.”

Attorneys for the Campaign Legal Center suggest this ad falls under the disclosure provisions of BCRA, while Jim Joseph, the attorney who represents the ONE Campaign says it’s purely an issue advertisement that doesn’t support or oppose any candidate, and is therefore outside of the requirement’s scope. When all is said and done, is this really the type of advertisement that the law was supposed to target? Is this a “sham issue ad”? It appears on its face to be precisely the type of ad that should not be regulated (and I put disclosure of donors in the “regulated” column). If the law does demand disclosure, I would suggest it’s another indication of the problems with BCRA.

UPDATE… Jim Joseph on the election law listserv gave an update:

I am counsel to The ONE Campaign and certainly had my comments taken out of context in the NY Sun article. The reporter seemed to be questioning ONE about why it had not registered as a political committee, which led to my response explaining how The ONE Campaign is not a political committee and how its ads do not support or oppose any candidates. When I finally realized that what he really was talking about was filing the Form 9, I explained that ONE was filing the form within 24-hours of the FEC regulations becoming final on Dec. 26. ONE never raised funds for electioneering communications, but used general treasury funds for these ads. The regulations provide very clearly that donor names do not need to be included on Form 9 under these facts. The reporter’s claim of ONE “boasting” of its ad buy was a simple press release stating that it was releasing an ad and buying $1.8 million in air time. The ads were set to end before December 26 and were paid for well before then, so there is probably an argument that the regulations that became effective on Dec. 26 did not apply, but I explained to the reporter that we wanted to file the form even if there might be argument that ONE was not required to file. We even filed before the FEC released a revised Form 9; the current form does not match up to the new regulations, that is for sure. Obviously, none of this comes out in the article. Given the “faux” issue ads that are out there, you would think the press would not be focusing on such non-issues as this.

Totally agreed on the last point!

The FEC is in the midst of a serious political squabble that will essentially shut down new business starting January 1st. Thankfully, before the lights went out the Commission released the Explanation and Justification document (PDF) on their new electioneering communications rules (PDF). AFJ has the summary here. Recommended reading if you’re a nonprofit that uses broadcast ads at all during election season!

The Washington Post reports on the importance of nonprofits in the 2008 election cycle. be sure to check out the response to the article by AFJ and Chronicle of Philanthropy as well.

NPR’s Justice Talking covers the tricky speech vs. election regulation topic this week:

The presidential election is less than a year away and a Supreme Court ruling could change the kinds of advertisements we see and hear in the days running up to an election. Also, some are questioning whether reporters need a law to protect them from being forced to reveal their sources. On this edition of Justice Talking: how the First Amendment affects political campaigns, blogs, corporations and journalists. Parts of this program were taped in front of an audience at the annual convention of the National Communication Association.

Check out the audio here (mp3).

The Washington Post blog, The Trail, has a nice roundup of voices on the new FEC advertising rules. Save it for halftime of the Lions game tomorrow… or not. Happy Thanksgiving!

UPDATE… more here from The Hill.

UPDATE from the election law listserve, an interesting observation from Brian Svoboda:

The FEC is simply setting itself up for the same dialectic that has long characterized its enforcement process: (1) agency gives example of what is prohibited; (2) sponsor crafts ad to hew away from the prohibited example; (3) reform advocates deride supposed toothlessness of agency prohibition; (4) agency responds by targeting sponsors; thus prompting (5) continued reform community derision, and howls from the regulated about the lack of fair notice.

Sounds about how it will go.

The FEC today voted on a rule to harmonize federal law with the ruling in Wisconsin Right to Life… broadcast ads mentioning federal candidates near set times prior to elections can only be regulated, under the ruling, if there is “no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

So, this leaves the door wide open for more issue ads during elections. Bob Bauer has a good post on the matter… I tend to side with his point of view on this issue.

Great article in the L.A. Times today on the impacts 501(c)(4)s and 527s may have on upcoming elections… the key is the lack of donor disclosure. There are many good reasons for protecting the anonymity of donors to nonprofits, but there are equally good reasons to require disclosure for political activities. There will likely come a time when we see some attempt to strike the balance. It would not be a good idea, in my opinion, to require broad donor disclosure on nonprofits as a class simply because they can be used in electoral contexts. More to come on this for sure.

Stephen Colbert may be out of the running in South Carolina, but the impact of his attempted run still has people in election law circles talking. Rick Hasen weighs in over at FindLaw with Stephen Colbert’s “Hail to the Cheese” Presidential Candidacy: Why the Comedian’s Campaign Raises Serious Questions about the Role of Corporate Money In Elections. Remember that most nonprofits are corporations subject to federal election law, so this exercise in humor actually has some application!

Nonprofit Law Podcast #20 concludes the month-long series on election season and nonprofits with an overview on voter registration and get-out-the-vote activities. Check out the shownotes and resources at nplawcast.com!

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