OMB Watch was among a varied group of nonprofit organizations that filed comments at the Federal Election Commission (FEC) urging it to quickly begin the process of rulemaking that would exempt grassroots lobbying from federal election regulation. At issue is a ban under the Bipartisan Campaign Reform Act of 2002 (BCRA) on "electioneering communications," broadcasts that refer to federal candidates within 60 days of a general election or 30 days of a primary. At the same time, a constitutional challenge of the ban filed by Wisconsin Right to Life (WRTL) works its way through the courts, and a Maine group launched a similar suit on April 3. Nonprofits that want to use broadcasts for lobbying efforts are anxious for a decision before this year's election season. On April 17, OMB Watch joined 17 organizations in urging the FEC to immediately initiate rulemaking to exempt grassroots lobbying communications from the election-law restrictions on broadcast advertising. A letter signed by the groups supports a petition filed in February by the Alliance for Justice, AFL-CIO, the Chamber of Commerce, National Education Association, and OMB Watch that asks the FEC to exempt legitimate grassroots communications from "electioneering communication" prohibitions. Scores of other nonprofits have also weighed in. The petition lists six suggested criteria that distinguish genuine grassroots lobbying broadcasts from sham issue ads. According to the petition, genuine grassroots issue advocacy includes broadcasts that:

• identify the federal candidate only as an incumbent public officeholder
• only discuss specific current legislative or executive branch matters
• call on the official to take a particular position or action in his or her official capacity or asks the public to contact them and urge them to do so
• limits statements on the official's record to his or her public statements or official actions
• does not refer to the election, candidacy or political parties, and
• does not comment on the officeholder's character or fitness for office.

The nonprofit groups' letter stated these criteria are a "good standard that balances the concerns of all sides and provides a workable test. It would provide nonprofits with the ability to engage in genuine grassroots lobbying, and it would eliminate any realistic concerns about such grassroots lobbying being employed as the functional equivalent of express advocacy." The letter also noted that the Supreme Court recently reminded the FEC "that it has the authority to enact rules to exempt this kind of advertising from the broadcast ban." (Wisconsin Right to Life v. FEC, see FEC Opens Door To Rulemaking on Grassroots Lobbying for more information.) OMB Watch filed supplemental comments noting that in March 2004, in another FEC proceeding, 122 members of Congress indicated that BCRA was not intended to limit civic participation. A letter signed by these lawmakers stated,

"There has been absolutely no case made to Congress, or record established by the Commission, to support any notion that tax-exempt organizations and other independent groups threaten the legitimacy of our government when criticizing its policies. We believe instead that more, not less, political activity by ordinary citizens and the associations they form is needed in our country."

Two Court Cases Address the Issue If the rulemaking goes forward and the FEC approves the proposed exemption two pending lawsuits challenging the "electioneering communications" rule could become moot. In late March, Wisconsin Right to Life (WRTL) sent the FEC a letter offering to settle its constitutional challenge against the rule if the FEC approved a grassroots lobbying exemption along the lines suggested in the petition. The letter explained, "While we do not believe that this rule goes as far as the U.S. Constitution would extend protection to grassroots lobbying, we believe that the proposed rule is a very good rule that balances the concerns of all sides and provides a workable test." The FEC voted to reject the offer on April 4. Currently the WRTL case is back in a special three-judge court, which is complying with a Supreme Court order to determine if the facts of the WRTL case warrant a finding that the rule is unconstitutional as applied to them. WRTL asked the court to expedite the case after the Supreme Court ruling in January, but the court denied that motion. Instead, it is considering a schedule for the FEC to conduct discovery of facts to be considered before a decision is made. The FEC has estimated it needs several months, possibly until September, for the process, but WRTL has asked for an abbreviated schedule so that it can continue its broadcasts after the Wisconsin blackout period for "electioneering communications," which begins 30 days before the September primary election. Another group, the Christian Civic League of Maine (CCL), filed suit seeking an injunction against the rule so that the organization can broadcast radio ads supporting the federal Marriage Protection Amendment, which may come up for a vote in June. The ads ask the public to contact Sens. Olympia Snowe (R-ME) and Susan Collins (R-ME) to seek their support. Since Maine will hold a primary election in June with Snowe running for re-election, the blackout period for these ads will begin on May 14. CCL attorney James Bopp, Jr. noted that Snowe is unopposed in the primary. Under BCRA all constitutional challenges are considered by the special three-judge court that is considering the WRTL case. If the court denies CCL's request for an injunction the group can appeal to the Supreme Court. If the court accepts the case, it could be decided sooner than the WRTL case.