The Federal Election Commission (FEC) has announced it will take comments until April 17 on whether it should start a rulemaking to consider whether or not to provide an exemption to existing law for nonprofits. The exemption would allow nonprofits to conduct issue advocacy through broadcast ads within 30 days of a primary and 60 days of a general election. Advocates for the action encourage the FEC to act quickly so that nonprofits understand what they can do prior to the November elections. The request for public comment was spurred by a Feb. 16 petition filed by OMB Watch, AFL-CIO, Alliance for Justice, National Education Association and U.S. Chamber of Commerce. The ban on pre-election broadcast "electioneering communications" has been mired by what many consider inconsistent regulation and thus confusion among nonprofits as to what they can and cannot do in this election season. The Bipartisan Campaign Reform Act of 2002 (BCRA) bars any broadcast ad that references a federal candidate within 30 days of a primary election or within 60 days of a general election. The FEC had initially exempted organizations under Section 501(c)(3) of the tax code from this "electioneering communications rule" due to their nonpartisan nature. Ads sponsored by such groups cannot support or oppose a candidate for elected office without losing their 501(c)(3) status. Thus, such ads would have to be issue ads, supporting or opposing legislation or policy options. Two of BCRA's co-sponsors, Reps. Christopher Shays (R-CT) and Martin Meehan (D-MA), filed a lawsuit challenging the FEC's exemption for 501(c)(3) organizations. A District Court ruled that FEC needed to reconsider its decision and provide more evidence of why it wanted to exempt 501(c)(3) groups or alternatively drop the exemption. FEC ultimately decided to drop the exemption. Thus, 501(c)(3) groups can no longer make refer to federal candidates in broadcast ads during the banned periods, including incumbents who are running again, even when they are lobbying on legislation. On a separate track, the Wisconsin Right to Life, a 501(c)(4) organization, decided to challenge the ban on broadcast ads as a restriction of First Amendment rights. A lower court ruled against the organization in Wisconsin Right to Life, Inc. v. FEC, saying there was no right to challenge the law. WRTL appealed to the Supreme Court, which ruled otherwise, sending the decision back to the lower court for consideration of the facts in the Wisconsin case. The Supreme Court's ruling noted that the FEC has the statutory authority to craft a rule to protect ads that do not "promote, attack, support or oppose" federal candidates. This means that the FEC can promulgate a rule that allows nonprofits to engage in issue advocacy through broadcast ads during the banned period. It was as a result of this Supreme Court decision that the group of nonprofits filed their Feb. 16 petition to the FEC requesting that the FEC start a rulemaking. For nonprofits, this is a particularly important and time-sensitive issue, with fall elections scheduled for Nov. 7. Without a new rule, broadcast ads referencing a federal candidate will be prohibited starting on Sept. 7, just as Congress considers a host of legislation, including annual appropriations bills. As a result nonprofits that wish to lobby on such legislation will be prohibited from using broadcast ads during this period. Similarly, nonprofits would need to know when a state primary is scheduled, in order not to run afoul of rules against running broadcast ads 30 days before a primary. On the other hand, the FEC may feel that it need not engage in a rulemaking until the lower court reconsiders the WRTL case. Depending on the timing and outcome of that court's decision, nonprofits may be out of luck, particularly for this year. Click here to send a message to the FEC. OMB Watch will also be collecting signatures for a sign-on letter for national organizations. Please email ombwatch@ombwatch.org if your organization is interested in reviewing the sign-on letter.