Briefs were filed in federal district court on Feb. 27 by Reps. Chris Shays (R-CT) and Martin Meehan (D-MA) and the Federal Election Commission (FEC) in a case challenging regulations implementing the Bipartisan Campaign Reform Act of 2002 (BCRA). At issue are regulations on soft money, defining illegal coordination between campaigns and outside groups and exemptions to the prohibition on broadcasts that mention federal candidates in the period before elections (called ?electioneering communications? in BCRA.) The regulations approved by the FEC exempt unpaid broadcasts and groups operating under Section 501(c)(3) of the tax code from the electioneering communications ban. Issue Broadcasts Shays and Meehan, House sponsors of BCRA, challenged the electioneering communications regulation for creating ?two dramatically overbroad exemptions that invite circumvention.? But the FEC said the regulation prevents BCRA?s ?electioneering communications provisions from inadvertently stifling the ability of the nation?s 900,000 26 U.S.C. 501(c)(3) organizations ? which federal law already strictly bars from any partisan political activity -- to carry out their core charitable functions by disrupting or chilling their educational communications.? Shays and Meehan argue that the exemption for 501(c)(3) activities goes against the intent of Congress because it is a per se exemption, which is actually contrary to a floor statement by Shays during debate on BCRA. Shays said that, in giving the FEC authority to create exemptions for communications unrelated to elections, it was not his intent to allow per se exemptions. The FEC argues that the exemption is not per se, but only applies to groups ?operating under 501(c)(3),? so that any charity that violates the tax law bar on participation in elections will not be covered by the exemption. The FEC also cites case law holding that floor statements of individual members of Congress, even sponsors of bills, are not controlling on the courts. Instead, courts must follow a rule of law giving deference to agency rules unless they are arbitrary and capricious. The FEC brief noted that in the public hearings and comments during its rulemaking process ?there was no evidence presented to the commission that electioneering by Section 501(c)(3) charitable organizations is a problem.? The FEC also noted evidence that research shows the ?vast majority of charities are acutely aware of the tax code?s bar to their involvement in partisan politics.? (Citing Strengthening Nonprofit Advocacy Project research by Tufts University and OMB Watch.) The Shays and Meehan brief also cite a Shays floor statement claiming, ?Some charities have run ads?opposing federal candidates.? The brief cites one example of a grassroots lobbying radio ad it claims attacks former Senator Spence Abraham. The ad, sponsored by the Federation for American Immigration Reform, a 501(c)(3) organization, criticized Abraham?s past position on immigration issues and urged the public to call him and ask him to change his position on pending legislation. It is notable that nothing in the above example refers to an election, compares Abraham to his opponent, or otherwise implies a position on him as a candidate. Shays and Meehan?s failure to distinguish between criticism of office holders for policies or actions taken in their official capacity, and attacks on them as candidates indicates an intent to bar legitimate lobbying activity during the election season. The brief goes on to cite recent IRS Revenue Ruling 2004-6, which lists factors to be used to distinguish lobbying activity from electioneering, as evidence that the IRS allows charities to engage in ?sham? issue advocacy. This lack of respect for the constitutional rights of nonprofits is deeply disturbing and indicates the extreme and draconian measures Shays and Meehan are willing to impose in an area where there is no evidence of wrongdoing. Unpaid Broadcasts The FEC?s regulations define ?electioneering communications? as those that are publicly distributed ?for a fee.? The regulation was adopted because BCRA sought to address the infusion of large amounts of soft money into attack ads during the period leading up to an election. The FEC found no justification for limiting broadcasts where no soft money is being spent. Their brief says, ?To our knowledge, however, not one unpaid communication played any significant role in the legislative history leading up to BCRA?s enactment, in the McConnell litigation, or in the FEC rulemaking regarding ?electioneering communications.? Rather?the evidence is overwhelming that the problem Congress identified involved paid advertisements.? Shays and Meehan assert that unpaid broadcasts, such as public service announcements, could be used to promote candidates. Their brief also asserts that soft money could be used to produce ads that are then aired for free by sympathetic broadcasters. The FEC?s brief said it is unlikely broadcasters would forego significant revenue during the election season to air unpaid candidate ads. What?s Next Reply briefs are due at the end of March, and several groups, including OMB Watch, are filing amicus briefs.