The Center for Civic Policy, a 501(c)(3) organization in New Mexico, distributed a series of mailers regarding the voting records of some members of the state legislature months before the June 3 primary. After losing the primary election, three lawmakers have sued Aug. 1, asserting that the group committed fraud in the financing of campaigns against them, alleging that the group's efforts crossed the line into political activity. They also want the group to register as a political action committee to fully disclose its funders. Meanwhile, New Mexico Attorney General Gary King asserted that the activities crossed the line into campaigning and requested the Secretary of State require them to register as a political committee.

"There's an old saying that if it walks like a duck and quacks like a duck, then its probably a duck," say AG King. "And I think we know a duck when we see one."

And reportedly, the Secretary of State now agrees.

The executive director of the Center for Civic Policy Eli Il Yong Lee, stated; "Any effort to restrict this legal activity would muzzle New Mexico nonprofits from doing the very important job of keeping public officials accountable."

Flaws in voter machines nationwide will not be fixed by the November elections. The Election Assistance Commission (EAC) announced that they will not be able to certify necessary upgrades before the general election. States vary in policies concerning whether or not federal certification of voter machines is required.

The certification process slowed down considerably when the Election Assistance Commission began certifying voter machines. Prior to that, it had been performed by the National Association of State Election Directors through a volunteer program they operate. There has been no new equipment certified since the EAC took over the certification process.

There have been numerous problems nationwide as a result of faulty machines. The New York Times highlighted some of these problems in a recent article. Chris Nelson, the secretary of state in South Dakota, told the Times that "[i]n 2006 the ballot-marking devices used by disabled voters incorrectly marked 50 to 100 ballots. The machine maker says it has fixed the problem but the state cannot install the fix without certification." The slowdown in certification is forcing many jurisdictions to forego much needed updates to their voter machines.

Also, there were many problems with the machines before the EAC took over the certification process. Many groups familiar with the process believe that one reason for the slowdown is that the new standards are much stricter, partially as a result of problems with faulty machines that were not detected earlier.

According to the Times, "A draft report out this month by the Government Accountability Office, the Congressional Watchdog, said the current system left states on their own to discover voting machine problems. The report calls for Congress to revise the Help America Vote Act and provide the commission with the authority and resources it needs to resolve problems with machines that were certified before the commission took over the process."

A Sept. 10 hearing is scheduled for the Real Truth About Obama Inc.'s (RTAO) lawsuit. RTAO is requesting that the Federal Election Commission (FEC) is prohibited from enforcing reporting requirements for independent political groups. The rules being challenged could require a group to disclose its finances, limit contributions to $5,000 per contributor and ban corporate and union money if the group is considered by the FEC to be a "political committee."

The RTAO lawsuit references a Department of Justice letter to Democracy 21 President Fred Wertheimer that said DOJ would "vigorously pursue instances where individuals knowingly and intentionally violate clear commands" of the Federal Election Campaign Act.

According to BNA Money and Politics ($$), the FEC is questioning the assignment of U.S. District Judge James Spencer, a federal judge who has ruled against campaign finance regulations in the past. A motion filed by FEC lawyers details that the plaintiffs had intentionally sought Judge Spencer's assignment to the case and suggested that the case be reassigned through a random process.

Specifically, "a case brought by the Virginia Society for Human Life (VSHL) in 2000, in which the judge ruled against an FEC regulation defining 'express advocacy' more broadly than a few 'magic words' referring to elections. [. . .] RTAO cited the VSHL matter as a 'related case,' apparently helping to ensure that. The FEC indicated that VSHL, a case decided seven years ago involving questions that have been subject to subsequent litigation and rulings by the Supreme Court, could not properly be viewed as 'related' to a new case."

Homeless citizens encounter hurdles that can make registering to vote a difficult process. They often have problems establishing residency. Adding to these obstacles are new voter identification requirements that are gaining ground across the country. It is often difficult for homeless citizens to maintain identification because they are transient, their belongings are sometimes destroyed, and they are sometimes subjected to police sweeps. Thus, many homeless citizens do not have birth certificates or identification cards.

However, there are ways to overcome some of these challenges. It is not necessary for a U.S. citizen to have a fixed address to vote. A citizen living in a shelter or on the street can also vote. It is necessary, however, to have a valid mailing address. A voter registration or confirmation card is often sent through the mail after the person has registered. If the card is returned to election officials as undeliverable, then the individual might not be registered.

In many areas, organizations, such as shelters, churches and community groups can provide homeless citizens with valid addresses.

An Article by the Pew Center on the States mentions that "Judicial opinions in recent years have upheld the notion that requiring a traditional dwelling can pose a hardship to some voters. Court decisions from a number of states have stated that street corners, parks and other public places can be used to establish local voting precincts."

Some registrars accept the precise location on the street where the homeless citizen is staying, but the registrars need a mailing address to send voter information, including a registration card, to the individual.

In June a federal appeals court struck down Federal Election Commission (FEC) rules dealing with coordination rules between candidates and outside groups. Reportedly, the FEC has not appealed the court decision ordering a rewrite of the rules. According to BNA Money and Politics ($$), "FEC Chairman Donald McGahn indicated at a commission meeting July 28 that the FEC could consider issuing advisory rulings on pressing issues in the run-up to the November election, including questions about permissible pre-election activity that may have been raised by the Shays III ruling. McGahn said that political parties and others may have questions about issues such as whether their plans for get-out-the-vote activities comply with the law."

A recent Watcher article addressed the possibility that FEC coordination rules on grassroots lobbying efforts may become more serious as the result of the June 13 ruling. An FEC complaint was filed seeking an investigation into an ad that featured House Speaker Nancy Pelosi (D-CA) and former Speaker Newt Gingrich. Pelosi was running for re-election in a June 3 primary and the ad aired in her district within 90 days of the primary election, and it was not paid for by Pelosi's campaign. The FEC coordination rules prohibit referencing a candidate within 90 days of a primary and 120 days of a general election. The complaint seeks an investigation into a possible case of illegal corporate contribution to Pelosi's campaign.

The NAACP Legal Defense and Educational Fund (LDF) issued a press release today unveiling a new program called "Prepared to Vote," which is designed to protect voter rights.

"Prepared to Vote is a program designed to raise every voter's awareness of the many obstacles in the electoral process that could affect their right to vote in the 2008 election. Through Prepared to Vote we hope to ensure that every eligible voter casts a vote that counts," said John Payton, LDF President and Director-Counsel.

According to the LDF press release, the Prepared to Vote program was "[i]nspired by the Freedom School Model from the Civil Rights Movement … [and] seeks to empower communities of color by providing essential information prior to Election Day. Program components include community-based workshops, the dissemination of user-friendly materials, meetings with election officials, and a dynamic educational website preparedtovote.org."

The Prepared to Vote program is designed to address issues that have served as barriers to voting in past elections. Some of the issues that the program will address are "voter ID requirements, voter purges, faulty voter rolls, poorly trained elections officials, and felon disfranchisement statutes," among other issues.

The program seeks to ensure that voters are not disenfranchised in the upcoming Presidential Election and that "America's democratic processes are administered uniformly and fairly in communities of color." To that end, LDF will deploy field attorneys to 10 states to prevent voter disfranchisement.

The U.S. 9th Circuit Court of Appeals heard oral arguments in Canyon Ferry Road Baptist Church v. Unswort, a challenge to Montana's election campaign reporting laws. The Canyon Ferry Road Baptist Church held an event in May 2004, and during which the Rev. B.G. Stumberg urged parishioners to sign petitions at the church in support of a constitutional ban on gay marriages. Advocates filed a complaint arguing that the church inappropriately held an event to support a political cause subject to the state's political contribution reporting requirements. The Montana Commissioner of Political Practices had previously ruled that the church should have reported its activities to get voters to pass a constitutional ban on gay marriage.

Reportedly; "Lawyers for the church filed a lawsuit in federal court, arguing the parishioners' rights to free speech and religious expression under the First and Fourteenth amendments were being trampled by the 'vague' and 'ambiguous' election laws."

A new web site has been set up, Pass223.com, to gain support for the Senate Campaign Disclosure Parity Act (S. 223) with the hopes that it will eventually be approved by the Senate. S.223 would require senators to file their contribution reports electronically.

Currently, presidential candidates and candidates running for the House of Representatives file their campaign contributions in electronic form. Electronic filing speeds the process by which campaign contribution data reaches the public over the Internet, allowing citizens and journalists to more easily spot a conflict of interest or an inappropriate contribution. Filers in the Senate do not file electronically, delaying disclosure by weeks and possibly months.

Senator John Ensign (R-AZ) continues to block the bill by insisting on adding an amendment that would force charities, religious organizations and other nonprofits to disclose their donors when they file ethics complaints against senators. OMB Watch supports S.223 and recognizes that in order for it to pass, Ensign's amendment must be removed.

By going to Pass223.com you can find out instructions on how to call your senators along with a suggested script, and instructions on how to report back on how they stand on the issue.

The Washington Independent recently did a story on how illogical it is that this bill remains stalled. "Voters hoping to learn who's contributing to their lawmakers this election season instead find a gaping hole: Due to antiquated rules requiring senators to file campaign disclosures on paper, the records of upper chamber members take weeks to process. The procedure means that donations made closest to November's elections will go largely unseen until well after the last vote has been cast. [. . .] Meanwhile, observers can continue to scratch their heads over why the upper chamber can't evolve into the 21st Century."

The John Hopkins Listening Post Project released a report describing their findings from a 2007 survey of 872 nonprofit organizations nationwide in four fields (children and family services, elderly housing and services, community and economic development, and the arts). The survey meant to find out "how recent challenges are affecting nonprofit engagement in policy advocacy, and how this varies by field, size of agency, or other factors. Moreover, we know very little about what factors affect the willingness of nonprofit organizations to engage in lobbying and advocacy, or what forms their involvement takes."

They found that the majority of nonprofits do engage in such activity, but only devote very little resources to it, either because of funding or staffing issues. The report reiterates the importance of nonprofits' role in policy and advocacy work.

Read the report "Nonprofit America: A Force for Democracy".

Check out the book Seen but not Heard: Strengthening Nonprofit Advocacy, OMB Watch's comprehensive analysis released last year.

A new 527 group called The Real Truth About Obama, Inc. ("RTAO"), has filed a lawsuit in federal court against the Federal Election Commission (FEC) and the Department of Justice to prevent them from enforcing FEC reporting rules for political committees. RTAO plans to run issue ads examining the Democratic presidential candidate's position on abortion and other policy positions issues.

The group's lead attorney, Jim Bopp Jr., won the Wisconsin Right to Life (WRTL) case last year against the FEC. Bopp argues that this 527 should not have to disclose their activities with the FEC, including independent expenditures and electioneering communications. The group registered with the FEC on July 29.

According to a press release from the James Madison Center for Free Speech; "Its first project is about Obama's radical pro-abortion views and voting record. However, RTAO fears that it will be deemed a federal PAC, if it does the project, because of the FEC's enforcement actions arising out of the 2004 election where various issue-advocacy 527s, such as the Swift Boat Veterans for Truth, were fined for failure to register as a federal PAC, even though they only engaged in issue advocacy."

RTAO's abortion information project includes a website, www.TheRealTruthAboutObama.com, and a radio ad called Change. The website is not operational due to the FEC's enforcement policies that prevent RTAO from raising money for the project. The lawsuit challenges this rule. The Change ad does not have any express words of advocacy of his election or defeat, such as "vote for" or "defeat."

It seems a bit peculiar that the group is arguing that it will only engage in legitimate issue advocacy, yet plans to focus on the public policy positions of one candidate, Barack Obama. That in itself suggests that the content could possibly be interpreted as an appeal to vote for or against a candidate. Even though in RTAO's lawsuit, they extensively cite WRTL, it was in that case that the Court decided that an ad can be regulated "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

RTAO challenges the FEC's "express advocacy" definition. "[T]he FEC continues to enforce its vague and overbroad rule defining 'express advocacy,' even where the communication does not contain such explicit words. If an ad is deemed to contain express advocacy, it becomes an 'independent expenditure,' which is forbidden to corporations, such as RTAO, must be reported to the FEC, must contain a disclaimer, and can trigger PAC status."

In Monday's National Journal, ($$) the "Rules of the Game" column examines how the Supreme Court, as some perceive, is attacking campaign financing reform initiatives. As election law scholar Rick Hasen says, "We could well be looking at a situation where the only campaign finance laws that are constitutional are disclosure laws and voluntary public financing systems."

It's only a matter of time, say some observers, before other core provisions of the election laws come before the high court. Indeed, Indiana election lawyer James Bopp Jr., who's led the recent string of legal challenges, argues that the time is ripe. "I think the soft money ban is readily susceptible to a First Amendment challenge," he said. That may seem far-fetched to those who brush off recent developments on the high court. But when it comes to campaign finance restrictions, this court is proving more than eager to embrace deregulation.

According to BNA Money and Politics ($$),"it would be practically impossible" for the Federal Election Commission (FEC) to complete a new rule on the disclosure of bundled campaign contributions from lobbyists in time to affect the 2008 election.

Chairman Donald McGahn said, "simple math dictated that there are not enough days left in the 2008 campaign season for the so-called bundling rule to be completed in time. Even if the FEC promptly finished the rulemaking process, the law that calls for bundling disclosure requires a three-month period before a new rule could actually go into effect." Under the Honest Leadership and Open Government Act, the FEC is required to write a new rule on bundling, the disclosure of campaign money that is collected by a lobbyist from other contributors and passed along to a candidate.

On Monday the FEC approved two advisory opinions (AO), including one ruling that the Club for Growth Political Action Committee (CFG PAC) must include "stand by your ad" disclaimer, including 10- to 15-second television commercials. The Campaign Legal Center has publicly voiced their approval with the FEC's unanimous decision.

The FEC press release states; "The Commission determined that CFG PAC's ads were public communications subject to the Act's [Bipartisan Campaign Reform Act] disclaimer requirements, and spoken disclaimers could not be omitted. In discussion, Chairman McGahn noted that this AO only concerns non-candidate ads."

Meanwhile, the Center for Competitive Politics criticized the decision. "The redundant 'stand by your ad' requirements needlessly reduce the amount of time that citizen groups can spend communicating with their fellow citizens. [. . .] Instead of substantive political messages like 'no taxation without representation' citizens are left to hear that the organization paying for the ad, in fact, approves of it."

The commissioners also approved a new expedited meeting schedule that includes at least three meetings in September, as opposed to the normal once a month meeting.

The Internal Revenue Service (IRS) released a memorandum for exempt organization (EO) revenue agents detailing how they should examine cases involving allegations of political activity on the Internet as part of the Political Activity Compliance Initiative (PACI). For example, in figuring out whether an exempt group is engaging in prohibited political activity, the IRS agents are to consider the "number of 'clicks' or electronic proximity between an exempt organization and the site of a political message," and "the context of the link is another significant consideration."

As the MSNBC article referenced earlier, the IRS is also concerned with what the Internet means for how easily 501(c)(3) groups can become involved in political activity. The IRS memo states; "Experience indicates that there are numerous cases involving potential political campaign intervention in the form of communications posted on Web sites operated by section 501(c)(3) organizations. Many of these communications include links to Web sites of other organizations."

In February the IRS warned 501(c)(3) organization about linking to other websites that may be considered partisan if the links indicate support or opposition for candidates. The memo discusses cases of linking to unrelated organizations and linking to related organizations, such as a related 501(c)(4). The IRS will continue to rely on the "facts and circumstances" test.

"EO will pursue the case if the facts and circumstances indicate that the section 501(c)(3) organization is promoting, encouraging, recommending or otherwise urging viewers to use the link to get information about specific candidates and their positions on specific issues. Again, analysis of the context around the link is a key factor."

[T]here are situations where a section 501(c)(3) organization itself (1) takes a position on an issue, and (2) provides information about candidate positions on the same issue, placing the organization at risk of having intervened in a political campaign. The risk arises, and the case should be pursued, even if the two elements are in separate parts of the organization's Web site, or if one element is on the Web site and the other is not.

An article from MSNBC's online magazine, Contribute, discusses the ways that 501(c)(3) organizations, according to the report, actually engage in illicit campaign intervention.

The report argues that partly because of the Internet, the line between issue advocacy and illegal partisan electioneering becomes crossed more often and easily. "[I]t's OK to put on such events as a voter registration drive or voter forums - or a get-out-the-vote push, as long as all are nonpartisan. Clearly, some issues and causes are aligned more with one party than another - Al Gore and global warming, or George Bush and troop support in Iraq, for starters."

As they should, "501(c)(3)s are considering their potential for political advocacy. [. . .] To help Minnesota nonprofits walk the line — and skirt the ban on political activity — this group created the Minnesota Participation Project, a Web site to help the state's nonprofits define and conduct permissible, nonpartisan voter recruitment efforts." Such voter registration activities are a vital characteristic to 501(c)(3) groups.

"But woe to those nonprofits that go too far. Indeed, the difference between issue advocacy and political intervention can get pretty murky sometimes — and there's a need for clarity that has become especially urgent in this era of instant communication."

Referencing the NAACP and the All Saints Episcopal Church cases; "the IRS actions sent a stringent — albeit mixed - message to the nonprofit community."

The Federal Election Commission (FEC) with its new panel of commissioners is expected to vote Monday July 28 on the first FEC advisory opinions. Club for Growth PAC has requested that they can exclude the spoken "stand-by-your-ad" disclaimers from short television advertisements. The draft advisory opinion to be voted on rejects their request. The group argued that the ten to fifteen second spots it plans to run for candidates are too short to include the standard four second spoken disclaimers, such as "Paid for by Club for Growth PAC and not authorized by any candidate or candidate's committee." Instead, they want to identify itself as the ad's backer in four second visual disclaimers.

The draft advisory opinion states, "All public communications made by a political committee must include certain disclaimers. In addition, all public communications made by any person, including a political committee, that expressly advocate the election or defeat of a clearly identified Federal candidate must include disclaimers."