In response to the FEC rulemaking on political committees, the Alliance for Justice, Charity Lobbying in the Public Interest, the National Council of Nonprofit Associations, the National Committee for Responsive Philanthropy, and OMB Watch have developed four principles that we believe must be incorporated into any new rule the FEC adopts. The statement is below. We have also created a website with more background information for nonprofits at www.nonprofitadvocacy.org. Read the full statement below. An Open Letter on Principles That Should Apply in the Upcoming FEC Rulemaking March 3, 2004 The Federal Election Commission (FEC) is conducting a rulemaking proceeding that will determine the scope of federal election regulation and define what constitutes electoral activity that can be regulated under the Federal Election Campaign Act. We are nonpartisan, charitable organizations that believe in the importance of genuine issue advocacy. We are not attempting to address all issues involved in the rulemaking, but we believe that any rule adopted by the FEC should, at a minimum, adhere to the following principles: 1. Genuine issue advocacy must be left free of FEC regulation. The democratic process depends not only on citizens voting, but also on people and nongovernmental organizations speaking up about the issues of the day, including pending legislation and acts by public officials. The Constitution protects such advocacy from being burdened by laws and regulations unless a compelling state interest justifies it. Government should be wary of making any rules that will discourage citizens and nonprofit organizations from participating in our democratic process. The FEC has no legitimate interest in attempting to regulate genuine issue advocacy, which addresses issues and public officials in their role as policymakers, not as candidates for federal office. 2. Tax law should not be imported wholesale into election law. Tax and election law serve different purposes, and tax exemption is voluntary, while FEC regulation is not, and violation carries criminal penalties. Therefore, the FEC must be cautious in drawing on tax law for campaign finance purposes. Not all activity that is considered “electioneering” for tax purposes is subject to FEC regulation, and we are not advocating a position on extension of FEC powers beyond current regulations. While we do not believe it is appropriate for the FEC to extend its regulation to all activity the IRS defines as electioneering, IRS Revenue Ruling 2004-6 can be used as a resource in helping the FEC distinguish genuine issue advocacy from communications meant to influence federal elections. This Revenue Ruling lays out factors for consideration, but does not apply a rigid formula. For example, some of the factors that tend to indicate genuine issue advocacy include communications that are tied to a specific event outside the control of an organization, identify a public official only in their official capacity and not as a candidate, and are part of an ongoing campaign of advocacy on the same issue. 3. Deference should be given to protection of First Amendment’s right of free speech. Where ambiguity in the law exists, election related regulation or restriction of speech or regulation of organizations not expressly provided for by the Bipartisan Campaign Reform Act of 2002 or the Federal Election Campaign Act must be imposed by Congress, and not through an administrative rulemaking. 4. No new rules should be applied retroactively or during this election season, which is already underway. Nonprofits and the public need clarity and reasonable notice on all rules published by the FEC. All rules must be clear enough to avoid a chilling effect on genuine issue advocacy and nonpartisan voter mobilization activity. Alliance for Justice Liz Towne 202/822-6070 Charity Lobbying in the Public Interest Bob Smucker 202/387-5048 National Committee for Responsive Philanthropy Rick Cohen 202/387-9177 National Council of Nonprofit Associations Abby Levine 202/962-0322 X14 OMB Watch Kay Guinane 202/234-8494 x279