2007 will hopefully see the sun set on a contentious and drawn out battle over the electioneering communications rule as applied to nonprofits. On April 25, 2007 the Supreme Court hears oral argument in Federal Election Commission v. Wisconsin Right to Life (WRTL). The outcome of this case will determine if grassroots lobbying broadcasts by nonprofits can be exempted from the current restrictive federal rules.

The rule is part of the Bipartisan Campaign Reform Act (BCRA), enacted in 2002. Nonprofits such as WRTL challenge the provision in the law that prohibits corporations, including 501(c)(3) organizations, from mentioning federal candidates in broadcasts 60 days before a general election, and 30 days before a primary. WRTL argues that the law is unconstitutional as applied to them. The advertisement that precipitated the initial litigation made no mention of a political candidate. The policy behind WRTL case is a simple one. WRTL, and similarly situated nonprofits, should not have to cease advocacy on legislative issues during the election season, especially when bills are being considered. In addition, 501(c)(3) organizations are already prohibited from participating in campaigns, supporting, and endorsing candidates for public office. Violations of this federal law and its more specific federal regulations could result in revocation of 501(c)(3) tax exempt status.

It is for this simple reason that this case matters. The decision on this case will likely serve as the last word on this issue that has been litigated for years. This decision will decide the state of the law for the 2008 election cycle and beyond. WRTL and groups like it will be bound by the outcome, and nonprofits will either retain the ability to participate in the democratic process while federal elections are going on.

The History

Before WRTL pushed its case, there was activity in this area. During the 2004 campaign cycle, the "electioneering communications" rule created in the Bipartisan Campaign Reform Act of 2002 (BCRA) did not apply to charities and religious organizations exempt under Section 501(c)(3) of the tax code. Initially, the FEC exempted such entities due to their nonpartisan nature. The FEC then withdrew the exemption in December 2005 because a federal court held its justification for the exemption was legally inadequate. It was during this period that the WRTL case began to get fired up. It was also during this period that a coalition of dedicated nonprofit groups mobilized to spread the word about the issues that WRTL presented. This coalition wrote an amicus brief and also lobbied the FEC to make a new rule with exemptions for 501(c)(3) organizations.

The WRTL Case History

This story begins in 2004, when WRTL bought radio ads encouraging listeners to contact their elected representatives on the issue of judicial filibusters. Sen. Russell Feingold (D-WI) was running for re-election at the time, so WRTL had to discontinue the ads, bending to pressure to conform with the electioneering communication rule (ECR). The ads did not refer to the election, the candidate, name any political party or characterize Feingold's position on the filibuster issue.

In early 2006, the case first went before the Supreme Court. OMB Watch joined some three dozen other nonprofit groups in an amicus curiae brief in the original WRTL v. FEC case. The court decided that, although it had upheld the constitutionality of the provision generally in McConnell v. FEC, WRTL could challenge the constitutionality as it applied to its grassroots lobbying situation. The court also noted that the FEC had the authority to solve this problem via its rulemaking power. The case was sent back to the lower court to decide the case fully, giving nonprofits some hope that this issue could be resolved absent further expensive and drawn out litigation.

Following this decision, in February 2006, OMB Watch joined a group of nonprofits that asked the FEC to create a grassroots lobbying exemption provided certain criteria were met. An exemption would be granted so long as the ad:

• identified the federal candidate only as an incumbent public officeholder
• discussed only specific current legislative or executive branch atters
• called 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
• limited statements on the official's record to his or her public statements or official actions
• did not refer to the election, candidacy or political parties, and
• did not comment on the officeholder's character or fitness for office. The criteria were included in the request to the FEC for consideration.

In response to this request, the agency decided to defer action until it has further guidance from the courts. Guidance came in December 2006, when a federal court ruled that "these ads are a textbook example of genuine issue ads that are neither express advocacy nor its functional equivalent." The FEC appealed the lower court's decision to the United States Supreme Court. The court laid out a schedule that should present a decision by this summer. The WRTL radio ads were neutral on the candidacy of Sen. Feingold. The ads were issue specific, and did not endorse or criticize any candidate at all. The lower court's decision took the position that the content not the context of the broadcast should determine whether the ad is a constitutionally protected lobbying message. This could lead to case-by-case enforcement, requiring nonprofits that want to broadcast ads to get Advisory Opinions from the FEC. This is not a practical approach, and the amicus brief from nonprofits is urging the court to create a clear exemption.

What is at stake is the ability to influence decision makers on federal legislation. Congress does not shut down 60 days before elections or 30 days before state primaries, and the ability of nonprofits to broadcast messages about bills under consideration should not be shut down during that time either. Should the court remove the ability to air these important tools of the democratic process, there is no telling how tiny the voice of grassroots groups may become in the political process.