On Oct. 1, comments were due to the Federal Election Commission (FEC) on its proposed new rules to make the agency's regulations consistent with the U.S. Supreme Court decision in FEC v. Wisconsin Right to Life (WRTL II). That case held that paid broadcasts that cannot be reasonably interpreted as appeals to vote for or against a federal candidate must be allowed to air in the period before federal elections. These broadcasts were restricted by law. The FEC will hold a hearing on Oct. 17, and it plans to vote on a final rule by the end of November, in time for the presidential primaries.

The FEC's Alternative 1 would require sponsors of grassroots, non-electoral broadcasts to file disclosure reports on their funding sources to the FEC, while Alternative 2 would not require disclosure. In the comments the FEC received, the disclosure issue is the main point of contention. OMB Watch submitted comments opposing the FEC disclosure of permissible electioneering communications (Alternative 1), saying, "There is no justification for burdening broadcasts that are unrelated to federal elections with FEC reporting obligations. The WRTL II opinion made it clear that where there is doubt, it must be resolved in favor of the speaker." Under Alternative 1, if a labor union, corporation or nonprofit spends more than $10,000 in a calendar year on grassroots lobbying communications, it would have to disclose the date and amounts of payments made for the communications and the name and address of donors who contributed more than $1,000. If an organization uses a separate segregated fund (SSF) for these ads, the donors to that fund would have to be reported. The comments OMB Watch submitted expressed concern that this "leaves a nonprofit with two bad choices: either disclose donors for the entire organization, or have the difficult job of separate fundraising for the SSF."

Independent Sector offered similar concerns about the disclosure proposal. The organization argued that "following complicated FEC reporting regulations would discourage, and would effectively prevent most charities from running issue ads during election periods. The reporting requirements would be an unnecessary obstacle for communications that are actually grassroots lobbying advertisements."

Those who favor maintaining the disclosure requirements, led by the Campaign Legal Center, argue that the FEC has every right to require disclosure because the Supreme Court only addressed whether the paid broadcast is permissible, not whether it should be disclosed. Hence, the FEC has no restrictions in calling for disclosure. However, the OMB Watch comments point out, "Congress has not authorized the FEC to regulate grassroots lobbying through disclosure requirements. In fact, earlier this year Congress clearly rejected proposals (supported by OMB Watch) to extend the Lobbying Disclosure Act to cover grassroots lobbying." Additionally, the IRS already collects information from charities on grassroots lobbying activities.

Another issue of contention in the proposed rulemaking is whether the FEC should have a general rule along with safe harbors or one specific rule. The rulemaking proposes a general rule and two limited safe harbor exclusions. OMB Watch argued, "The proposed general rule would exempt communications that are 'susceptible of a reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate.' We do not believe this is the best approach, since the proposed general rule is too vague, and the proposed safe harbors are overly restrictive."

In 2006, OMB Watch, the U.S. Chamber of Commerce, the AFL-CIO, Alliance for Justice and the National Education Association filed a petition with the FEC seeking a rulemaking for an exception to the electioneering communication rule that exempts grassroots lobbying activity. Both the comments the Chamber of Commerce and OMB Watch submitted support the 2006 suggested general rule. It said to be exempt the broadcast must:

• Be directed at the lawmaker in his capacity as an incumbent officeholder, not a candidate;
• Discuss a public policy issue currently under consideration;
• Urge either the officeholder or the general public to take a specific position on an issue, and in the case of the general public, urge them to contact the officeholder.

But the broadcast could not:

• Discuss the officeholder's character or fitness for office;
• Reference any political party or election; or
• Promote, support, attack or oppose any candidate for federal office.

Alliance for Justice also warns against the requirement in the rule that the communication must satisfy all four "prongs" of the safe harbor in order to be exempt. This approach would be inconsistent with the understanding that there can be as-applied challenges. "By making every element a condition of protection, the Commission would undermine the administrative and constitutional benefits attributable to adopting a safe harbor in the first place, and we urge the Commission to adopt a more flexible approach to the safe harbor."

The safe harbors also do not account for non-legislative issue advocacy, public service announcements or other broadcasts that may be unrelated to elections. The American Cancer Society expresses its concern with public service announcements. "Charities and the communities they serve can benefit from these individuals helping to disseminate mission-related information. We would like to ensure that these practices do not run afoul of any federal election laws."