Last week an editorial appeared in the Balitmore Sun titled "Here come the thought police," which outlines the many reasons some privacy and civil liberties groups oppose Representative Jane Harman's (D-CA) Homegrown Terrorism Prevention Act (HR1995). At first glance, the bill overwhelmingly approved by the House in October appears safe, but many fear that it could lead to the criminalization of beliefs, racial or religious profiling, and unconstitutional restrictions on speech. The bill would create a national commission to examine the causes of violent radicalization, domestic terrorism and ideologically based violence in the U.S., and to make legislative recommendations. The editorial states:

Any social or economic reform is fair game. Have a march of 100 or 100,000 people to demand a reform - amnesty for illegal immigrants or overturning Roe v. Wade - and someone can perceive that to be a use of force to intimidate the people, courts or government. The bill defines "violent radicalization" as promoting an "extremist belief system." But American governments, state and national, have a long history of interpreting radical "belief systems" as inevitably leading to violence to facilitate change.

The American Civil Liberties Union (ACLU) has come out in opposition, out of concern that the bill could end up stifling dissent. Many consider the bill's language to be too broad and could even lead to censoring the Internet. The ACLU issued a press release stating; "As an organization dedicated to the principles of freedom of speech, we cannot in good conscience support this or any measure that might lead to censorship and persecution based solely on one's personal beliefs." In response, Harman sent a letter to the director of the ACLU's Washington Legislative office. Meanwhile, Susan Collins (R-ME), the ranking member of the Senate Homeland Security and Governmental Affairs ranking has a introduced companion measure to the House bill.

In July we brought attention to Executive Order 13, 438 which authorizes the government to seize the assets of "any person" who threatens the stability of Iraq and any person who provides assistance to such a person. The lack of clear standards to define what criteria will be used to determine when an entity poses a significant risk or what constitutes a threat to the peace or security of the Iraqi government leaves charities operating in Iraq vulnerable. Now a newly released Congressional Research Service (CRS) report highlights the broad nature of the Executive Order.

The issue is whether the executive order's application to anyone who provides "support" for a designated entity might affect U.S. persons inadvertently involved in some form of assistance, such as arranging transportation for, selling consumer goods to, or providing routine legal assistance to an entity which becomes blocked under the executive order. Could such U.S. persons find themselves designated under the authority of the executive order and thereby have all of their assets subject to blocking whether or not the assets have any nexus with the transaction with the blocked entity or with any foreign entity?

Read this blog at Secrecy News with the appropriate title, "Executive Order on Asset Seizure Casts a Wide Net."

Trade associations still do not want to be included in the stealth lobbying coalition provision of the Honest Leadership and Open Government Act (S.1). The Hill reports, "Trade groups like the U.S. Chamber of Commerce say a new lobbying law could require the release of their member lists, violating freedom of association protections granted by the Constitution." The U.S. Chamber of Commerce and the National Association of Manufacturers have sent a letter to the Secretary of the Senate and the clerk of the House asking for "guidance" on how to interpret the new reporting requirements.

As the 2008 election nears, one topic of warning is becoming all the rage, nonprofits that use the campaign season to bring attention to their issues, such as education or healthcare. As the Chronicle of Philanthropy notes, "Nonprofit organizations are stepping up their political activity and becoming more aggressive lobbyists as the presidential primaries draw near, though they must be careful to follow the complex laws governing their tax-exempt status."

A Time magazine article highlights many nonprofits that are doing great work to promote the needs of the nonprofit sector to candidates.

We have noted here before foundations that are becoming more involved with independent campaigns that seek candidates' stance on issues, and investing in new advocacy campaigns to accomplish its policy goals. The example of Ed in '08 and many others are mentioned in the Times article. The routine question arises, how involved should charities get in politics. However, "[Robert] Egger says bring it on. 'Nonprofits have for too long been complacent to let others tell us what we can and can't do."

Egger is not the only nonprofit leader using next year's early primaries to thrust his agenda into the national spotlight. Bill Gates, whose foundation is the world's largest philanthropy, last month called on presidential contenders to commit to expanding the President's Malaria Initiative, a $1.2 billion effort started by President Bush in 2005 to cut malaria deaths by 50% in 15 African nations.

One very impressive example of nonprofits using the election to raise political awareness of the sector is the Primary Project.

This time around, New Hampshire nonprofit leaders are learning the art of bird-dogging. One, Cynthia Mills, CEO of the Manchester-based Tree Care Industry Association, has met 11 candidates at house parties and town hall meetings, peppering them with questions on how they envision a future partnership with the nonprofit sector. The Nonprofit Primary Project hopes to meet with all the presidential hopefuls one-on-one before the January primary

The House of Representatives passed HR 3996, the Responsible Tax Relief Bill earlier this month. In doing so, the tax incentive that allows taxpayers age 70 1/2 to make tax-free charitable contributions from their IRA accounts was extended for another year. BNA Money and Politics ($$) reports that, "the Senate will be talking about a two-year extension of the individual retirement account rollover provision for charitable giving when it takes up H.R. 3996 the week of Dec. 3."

A week has passed since the Federal Election Commission (FEC) approved a new electioneering communications rule to interpret the Supreme Court's June decision in the Wisconsin Right to Life case. With three drafts to consider, the FEC adopted a broad interpretation of evidence of "express advocacy" in ads. Under the rule change an organization may use corporate or union money to run independent ads as long as the overall message is a call to action on a public policy issue and does not mention an election, political party or an opposing candidate, or take a stand on a candidate's character, qualifications or fitness for office. The rule provides for a "safe harbor" and if a communication does not qualify for the safe harbor, the FEC will consider whether the communication includes any "indicia of express advocacy."

Commissioners voted 4-1 to require that financing for any exempt ads paid for by unions or corporations be publicly disclosed. As he has in the past, Commissioner Hans von Spakovsky supported the idea of removing the disclosure requirement, but that motion failed. The FEC disclosure requirement would affect grassroots lobbying, even though in January of this year, Congress unsuccessfully tried to require more disclosure of organizations that engage in grassroots lobbying.

After much contemplation and commentary, most are quick to assume that now corporate and union funding for ads up until elections will just be abundantly out of control. Critics say groups will now be able to run campaign ads disguised as issue ads. The only way to test out this theory is to wait; however, the vagueness of the rule leaves open that possibility. The FEC will likely have to deal with the ramifications and decide whether ads crossed the line. Unfortunately many groups who want to engage in advocacy all year round, even prior to an election, are still left confused.

After the Federal Election Commission (FEC) published a General Counsel's draft final rule last week rule that was significantly different than the rule proposed for public comment, the commissioners this afternoon approved an alternative proposal submitted late today. The rule adopted this afternoon is an amended version of Chairman Lenhard's proposal including an amendment offered by Commissioner Weintraub, making clear that the Commission will take into consideration the ad's content along with whether the ad contains "indicia of express advocacy." The rule also kept the existing disclosure requirements. The text of the rule as adopted has not yet been released, but check back for further analysis. Reactions will continue to pile up, but for starters, check out this blog from Bob Bauer.

The Washington Post highlights the new publication Seen But Not Heard: Strengthening Nonprofit Advocacy and the executive director of OMB Watch. In light of a certain disdain for lobbyists, we all must be reminded that charities need to lobby more. "Bass's biggest problem is convincing charities that they not only can make their case to government, but that they really ought to do so. In effect, he needs to convince his fellow do-gooders that lobbying is not so bad." Disturbingly, "a third of nonprofits polled recently owned up to 'lobbying' two or more times a month. But when asked if they 'advocate,' closer to half admitted to that. Many nonprofits also are unsure how much lobbying the law permits them to do."

The Federal Election Commission (FEC) has fined the group the Media Fund $580,000 after concluding that the group illegally ran advertising against President Bush and in favor of Senator John Kerry. The FEC said that during the 2004 election, the now inactive group violated the law because it accepted unlimited donations from unions and expressly advocated the defeat or victory of a political candidate. The group was registered as a 527, but should have registered as a political committee. The Media Fund was the first to have a "probable cause hearing" under the pilot program.

According to the Internal Revenue Service (IRS) newswire, 501(c)(3) organizations have been reminded that federal law prohibits them from becoming directly or indirectly involved in campaigns of political candidates. Steven Miller, Commissioner of the Tax Exempt and Government Entities Division stated; "The political contests, especially for president, are starting earlier than usual. The IRS, as it has in the past, wants to remind charities and churches of the ban on political campaign activity. We also want to urge nonprofit and religious organizations to review the guidance we have issued to help them avoid any problems."

Related: Read this new report from OMB Watch, "Overcaution and Confusion: The Impact of Ambiguous IRS Regulation of Political Activities by Charities and the Potential for Change."

The Ninth Circuit has issued an opinion in Al-Haramain Islamic Foundation v. Bush, returning the case to the District Court for further consideration. Al-Haramain, sued the government after receiving a document proving the Islamic charity was subject to warrantless surveillance. The government asserted the case should be dismissed based on the state secret privilege. The Ninth Circuit ruled that the subject matter of the case itself was not a state secret, but the document remains a state secret. The case will now return to the lower court to determine whether the Foreign Intelligence Surveillance Act (FISA) law preempted the state secrets privilege.

Interestingly the LA Times considered the ruling a victory for the Bush administration. Yes, the document was ruled a state secret, but the program itself was not, sending the case back to the district court.

The opinion states; "The court held that the Sealed Document was protected by the state secrets privilege and that its inadvertent disclosure did not alter its privileged nature, but decided that Al-Haramain would be permitted to file in camera affidavits attesting to the contents of the document based on the memories of lawyers who had received copies. . . . Nonetheless, our resolution of the state secrets issue as applied to the Sealed Document does not conclude the litigation."

Check out this very interesting blog which asks what the nonprofit sector's role is in the 2008 election and as promoters of civic engagement. More importantly the author states; "The problem, rather, is that the broader social policy environment is hostile to most of our [nonprofits'] missions, hostile even to the concept of a common good. That's the limiting factor that should be changed."

After the RESTORE Act (HR 3773) was pulled from the House floor about a month ago, the House passed the bill with a vote of 227-189 after a Motion to Recommit was defeated. The House ignored a veto threat and passed the bill to amend the Foreign Intelligence Surveillance Act (FISA) hours after the Senate Judiciary Committee, also ignoring the veto threat, voted 10-9, to send their bill to the full Senate. The White House favors the bill as passed by the Senate Intelligence Committee.

The Senate Judiciary held a hearing to mark up the Senate Intelligence Committee's S.2248. The issue of telecommunications immunity proved to be so divisive that it was simply avoided. First the committee approved an amended version of the first title in the bill which deals with how surveillance is conducted. Senators were then unable to find any agreement on the more controversial second title, which grants retroactive legal immunity to telecommunications companies that helped the administration with its warrantless surveillance program. Committee Chairman Senator Patrick Leahy (D-VT) then offered reporting the bill out of committee with only the first title, which passed 10-9. The issue of immunity will now be taken up at a later date, as the bill moves to the floor as approved by the Intelligence committee and the version passed by the Judiciary will be considered as an amendment.

Update:CQ ($$) reports that the Senate Judiciary Committee had planned a continuation of yesterday's (Nov.15) meeting to approve what took place, advancing the bill without the telecom provision. There was some confusion whether a majority of members were actually present for that vote.

Read the story in the New York Times and the Washington Post.

While promising, the actions that occurred in the House and Senate further complicate any chances of invalidating the reckless Protect America Act passed in August; language reported out of the Judiciary committee compared to the Intelligence committee, along with the House's version, and the President's stated veto threats. It is questionable if any legislation is approved before the PAA expires in February.

BNA Money and Politics ($$) reports on further implementation of the new lobbying and ethics law (S.1) which amends the Lobby Disclosure Act of 1995. Reportedly, new federal lobbying disclosure reports will allow lobbyists to make one single electronic filing, as opposed to filing separately with both the Senate and House. Many are also anticipating instructions on how to comply with the gift and travel restrictions. The Senate Ethics Committee also released on Nov.13 new forms on privately sponsored travel. Meanwhile, a House ethics task force will offer a plan for an independent office, but outside groups or individuals will not be able to file a complaint. The panel will be appointed by the House speaker and minority leader.

OMB Watch is a part of the Coalition Against Religious Discrimination, which has asked the House Committee on Oversight and Government Reform to investigate the White House Office of Faith-Based and Community Initiatives, requesting an oversight hearing. The letter is a result of numerous developments including a recommendation by the Justice Department posted last month that suggests faith-based organizations should be exempt from the employment nondiscrimination rules attached to some federal grants.

The coalition's Nov. 2 letter to Congressman Henry Waxman (D-CA) chairman of the committee states: "Although many of our organizations support the involvement of faith-based organizations in the delivery of social services, we remain concerned that the Administration's efforts and policies may have crossed the line in a way that harms vulnerable beneficiaries, houses of worship and the civil rights of employees who are paid with public funds."

For more information, see this article from The Roundtable on Religion and Social Welfare Policy.

The Federal Election Commission (FEC) has scheduled a special meeting Nov. 20 to approve a new rule on electioneering communications in accordance with the Supreme Court's decision in FEC v. Wisconsin Right to Life Inc. (WRTL). BNA Money and Politics ($$) reports that the rule "is expected to set critical ground rules for political ads in the 2008 campaign season and beyond. The issues to be addressed include whether the sponsors of ads will have to be disclosed and whether certain types of ads, such as attacks on personal character, still will be out-of-bounds for corporate and union funding." At least four commissioners must vote in favor of the rule in order to approve it. The draft of the rule has not been released.

Update:The draft rule can be read here.

The Washington Post has addressed a Council of Europe report, Europe's leading human rights watchdog organization, approved by their Legal Affairs Committee criticizing the way the United Nations and the European Union blacklist terrorist suspects. The report states that the method used to sanction individuals and organizations does not include any "procedures for an independent review of decisions taken, and for compensation for infringements of rights. Such a procedure is totally arbitrary and has no credibility whatsoever." The committee recommends that those who are sanctioned be allowed a fair trial with the ability to see the evidence against them, within a reasonable time and compensation for wrongful designation as a terrorist. Just as in the United States, cases are being taken to court, but the problems with the underlying regulations and laws have not been addressed.

The council's actions serve as recommendations to members of the 27-nation European Union. Approximately 370 individuals and 60 organizations worldwide have been blacklisted by the U.N. Security Council or the European Union, the investigation found. In addition to the freeze on their finances and the prohibition on travel, they have little recourse for getting delisted, according to Dick Marty, a Swiss legislator who led the investigation. . . . "The person or group concerned is usually neither informed of the request, nor given the possibility to be heard, nor even necessarily informed about the decision taken -- until he or she first attempts to cross a border or use a bank account."

The Campaign Finance Institute has issued a press release announcing an effort led by OMB Watch which culminated in a letter to Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) urging them to drop the Ensign Amendment to S. 223, the Campaign Disclosure Parity Act. The unrelated amendment would require charities, religious organizations, and civic nonprofit organizations to disclose all of their donors who contributed $5,000 or more when they file an ethics complaint against any Senator. This is clearly meant to defeat a bill that has no public objection. The bill would simply require electronic disclosure of Senate campaign contributions.

Our letter stated; "Its unmistakable purpose is to discourage organizations from taking action to keep government accountable. Its retaliatory nature is counter to donors' privacy rights and the First Amendment rights of association and speech, and raises significant constitutional questions."

Letter in the News: BNA Money and Politics ($$) reported; "Signatories of the letter to Reid and McConnell included organizations ranging from the liberal Alliance for Justice and OMB Watch to the American Conservative Union and James Bopp, general counsel of the James Madison Center for Free Speech."

The LA Times reports on an option for political campaign donors that is expected to become more popular as time closes in on the presidential election, donating to a nonprofit. "It is the 501(c)(4), named for the tax code that defines it, that seems to have struck a chord with people looking for new ways to organize their independent fundraising."

And the New York Times mistakenly cautions that the Supreme Court's decision in the Wisconsin Right to Life (WRTL) case can partly be to blame for the influx in "soft money" donations to nonprofits prior to an election season. The article considers some efforts to fund ads as attempts "to plot ways of channeling money into advertisements and get-out-the-vote activities."

"Last week, as the first step in that effort, a group including John Podesta, the chief executive of the Center for American Progress, a liberal research center, and a former chief of staff for President Bill Clinton, and Anna Burger, a senior official of the Service Employees International Union, filed papers to form a nonprofit group." Actually the group formed a 527, The Fund for America, the topic in a recent Roll Call ($$) article. The Fund for America was formed to raise money and fund existing organizations. "The strategists said it's too early to know which specific campaigns the new group will underwrite but that it is expected to focus exclusively on issue-based television and radio campaigns, door-to-door canvassing and direct mail." Unlike 501(c)(3)s or 501(c)(4)s, the purpose of 527s is to get involved in elections, but they are not supposed to expressly advocate for or against a federal candidate, unless they comply with FEC rules.

Yet we must remember, that even though some nonprofits are set up immediately prior to an election, they still may establish a genuine issue campaign. Foundations are now becoming more involved with independent campaigns that seek candiates' stance on issues, as the Chronicle of Philanthropy ($$) reports. The article highlights foundations that are investing in new advocacy campaigns to accomplish its policy goals and to get candidates to talk about their issues. An example of organizing the public and presidential candidates to promote an issue is the Ed in '08 campaign.

Douglas W. Nelson, the Casey foundation's president, says the grant maker took great care to ensure the antipoverty campaign did not unintentionally promote any particular candidates. "It's not necessarily a legal concern, as much as it is, Does this have enough integrity so we would not be accused of being a stalking horse for anybody or anything?" he says.

Kent Cooper, a disclosure expert and former Federal Election Commission official who closely monitors reports on congressional travel, told BNA: "The August recess gave several organizations the opportunity to switch strategies and fund several major trips that included a large number of members." The sponsors and lawmakers were reassured by new procedures requiring sponsors to get pre-approval from the House ethics committee before each trip, ensuring that the trip complies with the rules, he said.

Eventually the approval of the trips will be available online. A part of the new law requires the House to set up an online database with travel information by August 2008 and a similar database for Senators is required by January. The Senate Ethics Committee is expected to announce by Nov. 13 whether the new travel rules will go into effect on that date or will be delayed. Until then, senators and staff can continue travel without pre-approval and without the new limits on travel sponsorship.

The Senate Judiciary Committee was scheduled to consider the first title of Senator Leahy's substitute would eliminate a part of the bill that redefines the definition of electronic surveillance. It also strengthens the minimization procedures and clarifies that FISA is the only way the government can conduct electronic surveillance for foreign intelligence. The committee will now meet next Thursday to mark up the entire bill, including the provision that grants retroactive immunity to telecommunications companies. Reportedly the first part was only going to be considered today because the issue of retroactive immunity was still under debate.

A coalition of organizations, including Citizens for Responsibility and Ethics in Washington (CREW), the Sunlight Foundation, the Project on Government Oversight (POGO), Public Citizen, and the Electronic Frontier Foundation have launched GovernmentDocs.org. It is an online document database that will make results of Freedom of Information Act (FOIA) requests easily searchable, browsed and reviewed. Registered users will be able to review and comment on documents. Check out the site here.

The House Homeland Security Committee held a hearing today (Nov.8) titled "The Progress and Pitfalls of the Terrorist Watch List," to examine how the Terrorist Screening Center (TSC) watch list is being used and managed. This follows a hearing covering the same topic held in the Senate Homeland Security and Government Affairs Committee on Oct. 24. A Government Accountability Office (GAO) report was released at that time which concluded that the administration is not using the TSC list as effectively as it should be. The TSC list is rapidly growing in size to include about 860,000 names and is expected to soon go over a million. A recent USA Today article reported that 15,000 people wanted off the list. As Committee Chairman Bennie Thompson (D-MS) said, if there is no accountability with the watch lists, the American people will not trust it. "It will be viewed as a placebo, not a protection." From Thompson's opening remarks:

We can do better — and we have to do better — than to have a system that flags United States Congressmen and 2 year olds as potential terrorists. Every day, the watch list impacts real people who are traveling by air, land, and sea. An accurate watch list keeps our nation safe and keeps the bad guys out. An inaccurate and incomplete watch list creates more and more misidentifications — which in turn creates fear and frustration. The American people will support the watch list if there is accountability — if they are confident that mistakes are being fixed and there is a real redress process. If there is accountability, they will trust it's being done right, not fear that they're being monitored by Big Brother.

Senator Charles Grassley (R-IA), the ranking Republican on the Senate Finance Committee, is investigating six evangelistic ministries to determine whether they have illegally used donations to finance lavish lifestyles. Senator Grassley sent letters to each of the ministries requesting documents to answer questions regarding expenses, executive compensation, housing allowances, checking and savings accounts, cars, airplanes and overseas trips. They have until Dec. 6 to respond. Grassley's press release states, "The inquiry is part of Grassley's long-standing interest in making sure tax-exempt organizations are accountable to donors." Read the story in the New York Times here.

Yesterday (Nov. 6) voters in seven states participated in state and local elections. The Election Protection hotline 1-866-OUR-VOTE was up and running, tracking reports of voting problems. In Michigan, a new photo ID requirement reportedly caused so much confusion that the Detroit Branch NAACP complained of possible civil rights violations.

Meanwhile, Representative Keith Ellison (D-MN) has introduced H.R. 4026, a bill that would prohibit the requirement of a photo ID to vote in federal elections. And in the Senate, thirteen Democratic Senators have introduced a bill that would outlaw "voter caging," the practice of challenging a person's right to vote because a letter sent to them was returned as undeliverable. The Caging Prohibition Act, S. 2305 would also require that anyone who challenges the right of another person to vote must set forth specific reasoning for their alleged ineligibility.

The Senate Judiciary Committee plans to mark up tomorrow (Nov. 8) S. 2248 the FISA Amendments Act to reform the Foreign Intelligence Surveillance Act (FISA). One of the most contentious issues is whether to give retroactive immunity to telecommunications companies that gave the administration records of U.S. residents without warrants from the FISA court. Last week the Judiciary Committee had a hearing examining the issue, and during which many on the committee suggested that they would not support immunity. The committee will have to address other issues as well, such as whether a warrant should be required to spy on U.S. citizens abroad and how much oversight should be granted to the FISA court. Read this article on the FISA Amendments Act from the latest Watcher.

An article in Roll Call ($$) addresses another element of carrying out the ethics and lobbying bill that was signed into law in September, the stealth lobbying coalition disclosure provision. Coalitions will have to disclose any organization that contributes at least $5,000 per quarter and actively participates in the lobbying campaign. Trade associations are not exempt from the rule, which means they could be forced to disclose their members. As a result, many trade associations are threatening to sue, arguing that forcing groups to name their members could violate First Amendment rights. They also assert that as a 501(c)(6), they already face reporting requirements from the Internal Revenue Service (IRS). A representative from the American Society of Association Executives was quoted as planning to seek a legislative change, and other trade associations are planning on sending a letter this week to the House Clerk and Secretary of the Senate outlining their proposed guidelines.

For more information on implementation of the Honest Leadership and Open Government Act, read this article from the latest Watcher.

Attorney Ezra Reese of Perkins Coie has done us all a favor by calling attention to little-known enforcement actions at the Federal Election Commission (FEC) over the past year that expand its authority beyond federal campaigns and election activity.

Reese's article, The Other Agency: The Impact of Recent Fedral Law Enforcement on Nonprofit Political Activity appears in the November 2007 issue of Tax Analysts. It has a good summary of both Internal Revenue Service (IRS) and FEC rules and enforcement trends over the past few years.

The conclusions are ominous. Reese says,

The FEC now claims authority to regulte activity that previously was left only to the IRS. An organization may engage only in activity that is conservatively considered to be non-political under IRS guidance and still cross the FEC line separating issue advocacy from illegal corporate political expenditures.....It is far past time nonprofits view the FEC and its growing body of enforcement precedent as an equally important threat when engaging in grassroots issue advocacy.

This article underscores concerns raised by the FEC's proposal to require disclosure of individual donors by groups that air grassroots lobbying broadcasts that by definition are not electioneering. The FEC's expansive view of what constitutes advocacy for or against a candidate brings to mind Thorstein Veblen's theory of "trained incapacity"- when overspecialization creates an inability to understand the true nature of things. The FEC so far has failed to understand that public life and public policy debates are not just about elections. Sometimes issue advocacy is about issues.

Posted by Kay Guinane, 05:12:50 PM