A diverse coalition of charities filed an amicus brief on Nov. 14 in the Supreme Court case Wisconsin Right to Life v. Federal Election Commission urging the court to protect the right of nonprofits to broadcast grassroots lobbying communications. Wisconsin Right to Life (WRTL) a 501(c)(4) social action organization, wanted to conduct a grassroots lobbying campaign before last year's national election airing ads urging Sens. Russ Feingold (D-WI) and Herb Kohl (D-WI) to oppose upcoming Senate filibusters of President Bush's judicial nominees. Because Feingold was up for re-election, the ads conflicted with campaign finance legislation. The Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits broadcast ads referencing a federal candidate within 30 days before a primary election or 60 days before a general election. WRTL filed suit seeking an injunction to this restriction. Both the lower court and federal appeals court denied WRTL's bid for an injunction, relying on language in the Supreme Court's decision in McConnell v. Federal Election Commission that might be read as disallowing as-applied challenges (i.e., "this law is unconstitutional as applied to me") to the provision. The Supreme Court initially declined to intervene, but James Bopp, the lead attorney representing WRTL, pursued the case, arguing that the Supreme Court, in its 2003 ruling in McConnell, did not preclude all "as applied" challenges to BCRA's electioneering communication provisions. The language in McConnell suggests that because the largest number of ads that are run around elections will be sham issue ads, genuine issue ads - such those of WRTL - were entitled to constitutional protection on an "as applied" basis. Bopp also argued that an exception for a provision is constitutionally required for ads aimed at influencing opinion on policy issues. Oral argument is expected in early 2006. The court will be considering two issues:

• whether challenges to specific applications of the electioneering communications rule are even allowed, and
• whether WRTL's grassroots lobbying ads must be exempted from the rule for constitutional reasons.

The grassroots lobbying exception Bopp is asking the Supreme Court to consider contains numerous criteria that distinguish the ads that BCRA is intended to target from the genuine issue ads that get caught in the crossfire. Qualities characteristic to genuine issue ads, according to Bopp, include: communications are about a legislative matter; communications only references the candidate in asking him/her to take a position; there is no reference to a political party; and no reference is made to the candidate's character or qualifications. For a complete list of factors, see the WRTL brief. The multi-party amicus brief was filed on behalf of thirty-five charities (exempt under 501(c)(3) of the federal tax code). The brief argued that the electioneering communications restrictions deny charities the right to petition the government for redress of grievances, which is protected by the First Amendment. The electioneering communication restrictions in BRCA cannot be constitutionally applied to 501(c)(3) charities because such organizations are, and must be to retain their tax-exempt status, nonpartisan and nonpolitical. "Unlike the corporations producing 'sham issue ads' that the electioneering communications provision was designed to prevent," explains OMB Watch policy analyst Jennifer Lowe-Davis, "charities cannot establish federally registered political action committees to engage in political spending. While these corporations may take comfort in knowing they can engage in free speech through a segregated fund, charities are silenced." The friend of the court briefing also points out no evidence has been found to support claims that the activities of charities have led to corruption of public officials or that they distort the political process. In contrast, charities enhance the political process by serving as a counterweight to the immense resources that corporations use to influence government. "Charities represent the otherwise unrepresented in the deliberations of government," Lowe-Davis continued. OMB Watch organized the nonprofit coalition, which includes Independent Sector; Independence Institute; Alliance for Justice; American Conservative Union Foundation; Center for Lobbying in the Public Interest; NARAL Pro-Choice America Foundation (along with some NARAL state-level organizations); National Counsel of Jewish Women; National Legal and Policy Center; National Council of Nonprofit Associations (along with some state- and city-level nonprofit associations); National Low Income Housing Coalition; Violence Policy Center; Association of American Physicians & Surgeons Educational Foundation; Eden Housing, Inc.; Clients Council of the Legal Aid Society; Massachusetts Council of Human Service Providers; Michigan League for Human Services; Montana Conservation Voters Education Fund; Bronx AIDS Services, Inc.; The Urban League of Greater Cleveland; Housing Alliance of Pennsylvania; New Morning; and Liberty Legal Institute.