On Sept. 27, the Supreme Court accepted an appeal from the Wisconsin Right to Life Committee (WRTL) that challenges the constitutionality of federal campaign finance restrictions as applied to genuine grassroots lobbying communications. Oral argument in the case is expected in early 2006. Meanwhile, more than 100 nonprofits submitted comments to the Federal Election Commission (FEC) on its reconsideration of an exemption from its "electioneering communications" rule for groups that are exempt under Section 501(c)(3) of the tax code. Comments stressed the need to protect the grassroots lobbying and advocacy rights of nonpartisan groups. A public hearing will be held on Oct. 19 and 20. The Bipartisan Campaign Act of 2002 (BCRA) created a new bright-line "electioneering communications" rule that bars corporations, including nonprofits, from airing broadcasts that refer to federal candidates within 60 days of a federal election, or 30 days of a primary. In October 2002 the FEC exempted 501(c)(3) organizations because of their nonpartisan character. As a result, these groups did not have to stop airing grassroots lobbying or educational messages that mention federal candidates during the 2004 election. However, other nonprofits, including action organizations like WRTL that are exempt under Section 501(c)(4) of the tax code, are subject to the rule, regardless of the nature of their broadcast message. In the summer of 2004, WRTL began running an ad asking Wisconsin residents to call their U.S. Senators (Democrats Herb Kohl and Russell Feingold) and urge them not to support filibusters of judicial nominees. According to WRTL attorney James Bopp Jr., lead counsel for the James Madison Center for Free Speech, the ads "did not state either Senator's position on the filibusters, nor their political affiliation, nor any words supporting or opposing either Senator and made no reference to the upcoming election." Feingold was running for re-election; so, as the 60-day blackout period under the electioneering communications rule approached, WRTL filed a lawsuit asking for an injunction against application of the rule to these facts. The challenge was limited to the law "as applied" to their grassroots lobbying effort. (The Supreme Court had upheld the general provisions of the law in December 2003 in McConnell v. FEC.) The District Court rejected WRTL's argument that the Supreme Court did not preclude "as applied" challenges when it upheld the rule generally. It also found that, even if the challenge were permitted, the electioneering communications ban is constitutional as applied to grassroots lobbying. As a result of this ruling, WRTL discontinued the ads after August 15 and appealed to the Supreme Court. The court will be considering two issues:

• whether challenges to specific applications of the electioneering communications rule are allowed, and
• whether WRTL's grassroots lobbying ads must be exempted from the rule for constitutional reasons.

In a press release, Bopp stated the Supreme Court has indicated it "is willing to seriously consider whether campaign finance laws can be used to insulate federal candidates from genuine grassroots lobbying about upcoming votes in Congress." The fact that the Supreme Court agreed to hear this challenge only a few years after upholding the constitutionality of BCRA, coupled with the court's changing composition may signal stronger interest in the First Amendment ramifications of campaign finance laws. In the past the court has decided many campaign finance decisions, including McConnell, by a 5-4 vote. Charities Ask FEC to Keep Exemption for 501(c)(3) Groups The FEC is conducting a rulemaking proceeding to review the "electioneering communication" exemption for 501(c)(3) organizations, after it was the subject of a court challenge by BCRA's sponsors. The court sent the rule back to the FEC for reconsideration to address whether it should leave enforcement to the Internal Revenue Service (IRS), and whether this would result in exempt broadcasts that "promote, support, attack and oppose" a federal candidate. However, the FEC did not define what it means by the "promote, support, attack and oppose" standard, making responding to many issues raised by the proposed rule difficult if not impossible. OMB Watch filed comments that urged the FEC to:

• Exempt 501(c)(3) organizations that are in compliance with Internal Revenue Service (IRS) rules
• Use IRS rules to define what is and is not a partisan broadcast communication for a 501(c)(3) organization. There must be one body of law governing nonprofit communications;
• Publish a new proposed rule for public comment if it proposes a definition under the "promote, support, attack, or oppose" standard that is not based on IRS rules.

OMB Watch stressed that compliance with the IRS ban on intervening in elections effectively prevents 501(c)(3) groups from supporting or opposing candidates. On the other hand, the comments note that these groups have a constitutional right to support or oppose policies and legislation. The comments criticize the proposal, because "it does not distinguish between references to a candidate in his or her capacity as a candidate and references to public officials acting in their official capacity. It could mean grassroots lobbying messages that ask people to call a senator and urge him or her to change a past position on a bill are considered partisan attacks on that senator. This approach would have a chilling effect on constitutionally protected speech." The comments challenged the need for restrictions on 501(c)(3) organizations, as "there is no anecdotal record from the 2004 election that indicates abuse of the rule. While charities may have supported or opposed ideas or legislation, they have not supported or opposed candidates." A letter signed by 64 charities also asked the FEC to preserve the exemption, noting that "FEC rules should regulate federal campaign finance, not legitimate public policy debates." The letter pointed out that, "research on so-called sham issue advocacy has never uncovered abuses by 501(c)(3) organizations... Absent a record of abuse, there is no justification for limiting fundamental constitutional speech rights of these organizations. Speculation about the potential for loopholes does not equal a record of abuse. Indeed, restrictions aimed at preventing an unthreatened harm amounts to a prior restraint on speech." Whatever rule is eventually approve by the FEC could be effectively overruled by the Supreme Court in the WRTL case.