Three campaign finance groups have written the Federal Election Commission (FEC) urging them to narrow the scope of their proposed rule on what groups must register as “political committees.” The three groups are hoping that the FEC can resolve what they deem the most pressing issues for this election cycle. The FEC has not yet responded to their request. The letter was sent by Democracy 21, the Campaign Legal Center and the Center for Responsive Politics on March 16. It says the proposed rule “is so lengthy, addresses so many issues, raises so many questions and proposes so many new rules that the Commission is unlikely to be able to conclude this matter by its mid-May deadline and promulgate new rules for the 2004 general elections.” The three groups propose that the FEC focus on two issues they say are crucial to prevent circumvention of campaign finance laws. These are:

• Problems with rules governing how regulated and unregulated funds are allocated for partisan voter mobilization efforts.
• When groups exempt under Section 527 of the tax code should have to register as political committees with the FEC and become subject to spending and fundraising limits in its regulations.

The proposed rule could impact a wide variety of organizations, including nonpartisan groups that advocate on issues or work to get out the vote. The groups say the FEC does not have authority to regulate groups under section 501(c) of the tax code without action by Congress. Even if the FEC limits its new rules to 527 groups, the legal principles being invoked to justify the proposed rule could easily spill over to 501(c) organizations in the future. Democracy 21 has supported bans on nonpartisan issue advocacy in other contexts. For example, they represent Reps. Shays and Meehan in a suit challenging FEC regulations that exempt 501(c)(3) organizations from the “electioneering communications” provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA). Without the exemption nonpartisan groups advocating on issues could not refer to federal candidates in broadcasts 60 days before a general election or 30 days before a primary election. In their brief to the United States Court for the District of Columbia, Democracy 21 stated, “…the Commission uncritically accepted the argument that the tax code’s prohibition on Section 501(c)(3) groups participating in political campaigns.” (See p. 78.) They go on to describe communications criticizing a member of Congress for actions taken in his official capacity as an illegal attack on the member, who was also running for re-election. The FEC’s proposed rules would extend regulation to any communications that “promote, support, attack or oppose” federal candidates, but do not attempt to differentiate between genuine issue advocacy, such as grassroots lobbying on upcoming votes in Congress, and “sham” issue ads meant to influence elections. Following Democracy 21’s reasoning, genuine issue advocacy can be regulated simply because it coincides with the timing of a federal election. If this principle is accepted by the FEC, calls for regulation of 501(c) groups will most likely be heard as soon as a group antagonizes a member of Congress by criticizing his or her position on an issue. This “slippery slope” would present a danger for any group that communicates with the public on issues.