The Campaign Finance Institute (CFI) issued a report which concluded that 527 political groups and 501(c) organizations spent more than $400 million in the 2008 election cycle. This figure is based on CFI's analysis of Federal Election Commission (FEC) and Internal Revenue Service (IRS) reports, and public statements, press reports, and interviews of representatives of 501(c) organizations. 527s spent only half of what they did in 2004 while 501(c) groups "disbursed at least three times as much as in 2004 or 2006." When the report refers to Section 501(c) nonprofit groups, it means 501(c)(4), (c)(5) and (c)(6) organizations, and not 501(c)(3) organizations which are prohibited from engaging in partisan political activity.

501(c)(4) organizations are allowed to be involved in political campaigns, as long as it is not their "primary" activity. However, none of these "groups have been found to meet the FEC's thresholds for regulation as PACs (especially making $1,000 in 'express advocacy' expenditures and having 'the major purpose' of influencing federal elections)." The need to clearly define what constitutes a "major purpose" is a concern that we recently raised to the FEC.

According to the report, 501 (c) groups spent $81 million on electioneering communications. The report attributes this to the Supreme Court decision in Wisconsin Right to Life v. FEC (WRTL) and "particularly ensuing changes in FEC regulations." In the opinion, Chief Justice John Roberts affirms that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The FEC's rule interpreting WRTL fails to clearly distinguish electoral activity from non-electoral activity, which has led to a flood of 501(c)(4) activity, but not solely the Court's decision. The trouble lies with the rule put in place afterwards that is far too vague and leaves open the chance for groups to air questionable material.

CFI examined the 501(c) electioneering communications in the 2008 elections and found seven core characteristics of the majority of the TV or radio messages. However, according to FEC rules after WRTL, some of the indicators pointed out in the report are permissible, such as requesting that the audience contact the candidate or airing the ad in areas with competitive races.