Grassroots Lobbying Campaign on Climate Bill Runs into FEC Rules

Two recent grassroots media campaigns promoting action on climate change learned that campaign finance rules can be a trap for unwary advocates, illustrating how federal election law has reached beyond partisan campaigning to treat traditional grassroots issue advocacy like electioneering. Both ads appeared to comply with the Internal Revenue Service (IRS) prohibition on intervention in elections. The Alliance for Climate Protection (ACP) and the Environmental Defense Action Fund (EDAF) both ran ads in April and May that supported action on climate change, timed to coincide with Senate consideration of the Climate Security Act. The ACP ad featured House Speaker Nancy Pelosi (D-CA) and former Speaker Newt Gingrich, a Republican, who said that while they disagree on many things, they agree that the climate change problem must be addressed. The ad was part of an "Unlikely Alliances" series in ACP's wecansolveit campaign. A previous ad featured Revs. Al Sharpton and Pat Robertson and a new ad, announced June 9, features liberals and conservatives holding signs that highlight differences, such as "burgers" and "tofu," but saying they all agree on the need to address climate change.

None of the ACP ads mention the election, voting, political parties, or any officeholder's character or fitness for office. They address an issue central to ACP's mission and are part of an ongoing issue advocacy campaign. As such, they appear to be within criteria set by IRS Rev. Rul. 2007-41, which sets out factors the agency uses to distinguish genuine issue advocacy from partisan messages. However, a May 9 New York Sun article quoted Republican campaign finance attorneys Jan Baran and James Bopp, Jr., who said the ad may violate the Federal Election Commission's coordination rules. This is because Pelosi was also running for re-election in a June 3 primary; the ad aired nationally, including in her district in San Francisco, within 90 days of the primary election; the ad was not paid for by Pelosi's campaign; and she appeared in the ad. The FEC coordination rules prohibit references a candidate within 90 days of a primary and 120 days of a general election. If Baran and Bopp are correct, the ad would be considered an illegal corporate contribution to Pelosi's campaign.

On May 23, Judicial Watch filed a complaint at the FEC seeking an investigation of the ad. It said that no FEC disclosure reports have been filed. Pelosi's spokesman denied coordination between her campaign and ACP. A spokesman for ACP, which was founded by former Vice President Al Gore and partially funded with his Nobel Peace Prize, told the Sun, "This is clearly a nonpartisan issue ad that has a call to action to the public on climate change. We are confident that this ad is in compliance with the rules." Baran disagreed, saying, "Well-meaning ads still violate the statute." Bopp pointed out, "I've been arguing all along that these rules were going to entangle a member of Congress when they're simply doing their job working with a nonprofit group. Well, here it is."

The impact of the FEC coordination rules on grassroots lobbying efforts may become more serious as the result of a June 13 ruling of the U.S. Court of Appeals for the District of Columbia. The long-running litigation, brought by Rep. Chris Shays (R-CT), challenges the FEC's coordination rule for being too lenient in applying the Bipartisan Campaign Reform Act of 2002 (BCRA). In particular, the 90-day limit on coordination restrictions was rejected by the court, which said, "Does the challenged regulation frustrate Congress's goal of 'prohibiting soft money from being used in connection with federal elections'? McConnell, 540 U.S. at 177 n.69. We think it does. Outside the 90/120-day windows, the regulation allows candidates to evade—almost completely—BCRA's restrictions on the use of soft money."

The court's assumption that all joint efforts between public officials and nonprofits are somehow campaign related could result in an even stricter FEC coordination rule. The FEC has not yet said whether it will appeal.

An EDAF climate change ad, part of a $4 million grassroots lobbying effort, triggered FEC electioneering communications rules because the broadcasts referred to federal candidates within 30 days of a primary election. A May 30 New York Sun article reported that 25 versions of the ads mentioned Pelosi and more than three dozen other members of Congress, including Sens. Elizabeth Dole (R-NC) and Mark Pryor (D-AR), in an effort to generate support for the Climate Security Act. The article again quoted Baran, who said the FEC's electioneering communications rules require EDAF to file a report at the FEC and name donors who contributed more than $1,000 for the ads.

EDAF spokesperson Emily Diamond-Falk told the Sun that the ads "have nothing to do with Speaker Pelosi's primary election at all. This is strictly about the Climate Security Act." On June 18, the Sun reported that EDAF had filed a report at the FEC indicating the group spent nearly $710,000 on its grassroots lobbying campaign. A spokesman for the organization said it learned about the filing requirement from the reporter's earlier inquiry. The group did not file the names of individual donors since it did not raise funds specifically for the ad campaign.

On June 6 the Climate Security Act fell short of the 60 votes necessary to cut off debate and bring the issue to a vote.

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