Nonprofits will have a chance to weigh in on a case that may decide their advocacy rights, when the Supreme Court considers whether to uphold a lower court decision to ban certain paid broadcasts of grassroots advocacy messages. The case in question involves messages that mention public office holders who are also candidates in a federal election, funded with corporate, including nonprofit, money. On Oct. 14 OMB Watch and other nonprofit groups met with legal experts to begin work on a friend-of-the-court brief that will highlight the negative impact a ruling against Wisconsin Right to Life (WRTL), the defendant in the case, could have on nonprofit advocacy rights. WRTL discontinued airing an advertisement 60 days before the 2004 election, because the ad asked residents to contact their senators (Democrats Herb Kohl and Russell Feingold) and urge them not to support filibusters of judicial nominees. Feingold was running for re-election at the time, and, as the 60-day blackout period under a federal electioneering communications rule approached, WRTL filed a lawsuit asking for an injunction against application of the rule to these facts. The lower court ruled against them. Briefs in the case are due Nov. 14, and 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.

In a briefing for nonprofits, election law experts Karl Sandstrom and Bob Bauer of Perkins Coie said it is important for the court to hear from a diverse group of 501(c)(3) organizations to "highlight through examples the impact of the ban absent a grassroots lobbying exemption." They noted that all grassroots lobbying ads that mention federal officeholders running for office would be considered an attack or endorsement of a candidate if the Supreme Court affirms the lower court decision. They also noted that ten states have already adopted similar laws that apply to broadcasts referring to state candidates. A Supreme Court finding against WRTL could also result in an extension of the rule from broadcasts to phone banks, mass mailings and other forms of grassroots communications commonly used by charities, as eight states have already done. A draft of the brief will be circulated in early November, and signatories will be collected by OMB Watch. Interested organizations can get details and sign on to the brief by emailing amicus@ombwatch.org.