by Gary D. Bass, OMB Watch
Published on ombwatch.org
December 6, 2007

In an editorial on Dec. 4, The Washington Post concluded "the growing involvement of nonprofits in electoral politics … is a troubling and dangerous development." The next day, the Post ran a front page headline: "Nonprofits Become a Force in Primaries." Like the editorial, the article describes the work of Common Sense Issues, Inc., a 501(c)(4) organization that is operating "Trust Huckabee," but also describes the partisan activities of other 501(c)(4) groups. Reading the article and editorial, it is clear that the Post is concerned that nonprofits are becoming back door conduits for exceeding campaign contribution limits and, as they do so, mask who is bankrolling the activities. The Post also suggests that some groups, like Common Sense Issues, might be gaming the system by structuring their activities to minimally meet the requirements, but not the spirit, of the law.

The Post has helpfully put its finger on a growing public concern. Unfortunately, there are several thorny issues at play. First, not all nonprofits are the same. 501(c)(3) organizations -- charities and religious organizations -- are the largest category of nonprofits and are prohibited from supporting or opposing candidates for elective office, but can undertake nonpartisan voter engagement activities such as voter registration and candidate forums. 501(c)(4) organizations, called social welfare organizations, have been permitted to support or oppose candidates and engage in partisan electioneering as long as it is not their primary purpose. This is not new with this election. Yet with headlines about "nonprofits" engaging in electoral politics, the Post and other media organizations use too broad a brush and inadvertently tarnish the image of the nonprofit sector.

Second, I'm very frustrated with the insipid, controlling messages that come from campaigns today. Personally, I'm very glad when there are independent entities that provide added information to help me make judgments about the candidates. At the same time, I'm outraged by Swift Boat-type messages. The Post raises concerns that some independent voices are perilously close to no longer being independent and are providing the same pablum that the candidates provide. This gray area can be upsetting but raises a third point.

The annoyance that the Post and others may be expressing has more to do with basic First Amendment rights of free speech. The U.S. Supreme Court has affirmed the rights of 501(c)(4) organizations to engage in electioneering as long as it is not their primary activity and is not coordinated with candidates. Many 501(c)(4)s are groups we know well — the National Rifle Association, the NARAL Pro-Choice America, and Sierra Club — and clearly do more than simply support or oppose candidates for elected office. The problem occurs with newer groups, like Common Sense Issues that does not have the track record and appears, based on its Trust Huckabee project, to be a candidate-centered organization. The Post also raised concerns about donors anonymously giving to these groups. Yet the Supreme Court also said members and donors of issue-oriented groups are entitled to privacy, noting the potential for reprisals against donors to groups that work on controversial issues. And these kinds of groups do not threaten to corrupt the democratic system. Indeed, their civic participation strengthens it.

Rather than close down opportunities to strengthen civic participation by restricting nonprofit engagement, there may be ideas for addressing the gray areas. For example, charities are required to abide by a public support test, demonstrating they receive revenue from a diversity of sources. That same model might apply to 501(c)(4) organizations that engage in electoral activities, thereby reducing the fear that these groups are driven by a wealthy individual trying to control elections in a cloaked manner. Another idea might be to limit new 501(c)(4) organizations from engaging in electioneering in their first year of operation. This would directly address the abuse question raised by new groups such as Common Sense Issues. While tinkering may be warranted (and likely create controversy), basic principles should be followed for issue-based groups: guaranteeing the right of free speech and protecting donor anonymity.

Erring on the side of protecting the speech rights of organizations makes sense because if there is a scandal to be found, the current enforcement processes at the Internal Revenue Service and Federal Election Commission should be able to handle it — although they may need more resources. We don't need to trample on the constitutional rights of citizens to deal with the problem.

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Gary D. Bass is the executive director of OMB Watch, a Washington-based nonprofit government watchdog organization, and author of Seen but not Heard: Strengthening Nonprofit Advocacy.