Elections are the time when politicians pay the most attention to people and issues, and therefore the best time to ask them questions about how they plan to govern. OMB Watch wants your help in figuring out the best questions on government transparency that can be put to the candidates. Take just a few minutes to answer our survey and vote on your five favorite questions on the issue of government transparency and openness. We will then share the top questions with the news media and other organizations that have direct contact with candidates.

Government openness affects every issue from budget and taxes, to the regulatory process, to non-profit advocacy. The range of questions tries to reflect this breadth so check them and see which are most important to you.

Take the Open Government: What We Need To Know Survey today.

The Federal Election Commission (FEC) released a draft advisory opinion detailing that the newly formed group, SpeechNow.org, cannot accept unlimited contributions from donors if it wants to advocate for or against candidates for federal office. In November, SpeechNow.org submitted an opinion request to collect unlimited contributions from individuals to conduct "express advocacy." The group wanted to support candidates in 2008 "who favor returning America to the state of political freedom and advocate the defeat of candidates who favor speech restrictions in the name of campaign finance reform." In other words, the group wants to support candidates based on their support for free political speech. In response, FEC lawyers have said the group could do that only if it registered as a political committee, which would limit its contributions to $5,000 from individuals.

SpeechNow is making the case that if its speech is independent of any candidate or party, funded only by individuals, the "corruption" argument can not hold up. In addition, they argue that any restrictions on the ability of individuals to associate, by abiding by the FEC regulations, would violate Constitutional free speech rights.

The Center for Competitive Politics asserts that if the opinion were adopted, the group would be silenced. "The opinion would for the first time explicitly extend the full array of federal campaign finance regulations to groups of individual citizens acting independently of candidates and parties without corporate or union support."

Democratic Commissioner Ellen Weintraub voted in favor of the draft ruling written by FEC staff attorneys, but Republican Commissioner David Mason voted against the draft. Commissioner Mason said in a written dissenting opinion; "The distinction between candidate coordinated speech and independent speech is of constitutional significance. . . . Limiting the contribution limits given to an organization like SpeechNow would impose an intolerable, and constitutionally unjustifiable, burden on the independent spending of this organization." However, without a quorum, the commissioners can neither officially adopt the opinion, nor approve SpeechNow.org's request. The group is now likely to challenge the provision in federal court. However, considering the two sitting commissioners disagreed on SpeechNow.org's request, it is unclear how the FEC would defend the draft opinion in court.

An article in the Chronicle of Philanthropy ($$) discusses the difficulty 501(c)(3) nonprofit groups face if they want to know how candidates stand on issues. They must confidently understand the Internal Revenue Service (IRS) rules prohibiting charities from engaging in partisan politics. Unfortunately out of fear, many groups simply do not get involved even though it can be done in a legal manner. Gary Bass, executive director of OMB Watch, was quoted in the article; "organizations are right to be wary because the IRS rules governing political activity by groups that have charity status under Section 501(c)(3) of the Internal Revenue Code are vague." The IRS determines whether a group has violated the law with a "facts and circumstances" test rather than providing a precise, definition what is exactly legal.

To read the IRS guidelines on political activity by charities, click here.

A great example of nonprofits getting involved is the Primary Project started by the National Council of Nonprofit Associations and its affiliate the Nonprofit Congress, in which nonprofit leaders have been asking presidential nominees three questions; "[1]What role has a nonprofit organization played in your life or career? [2] How would you strengthen the economic and social capacity of such organizations? [and 3] How would you work with nonprofit groups to achieve your vision for America?"

In addition, BNA Money and Politics ($$) reports that "charities are responsible for not only for what's on their Web sites, but where visitors may be directed." The IRS "continues to rely on facts and circumstances to determine whether such links violate the strict prohibition against 501(c)3 interventions in political campaigns."

Citizens United, who has appealed to the Supreme Court, has now asked for an expedited decision. They have requested that the Court consider the case at its Feb. 15 conference so that the group could air the ads during the election season if the Supreme Court rules in its favor. The new jurisdictional statement filed with the Supreme Court asked the Court to set the appeal for full briefing and oral argument. Citizens United asked the Court three questions; whether "as applied" challenges are allowed concerning the FEC's disclosure rules for electioneering communications, whether such disclosure requirements are unconstitutional if a communication does not directly appeal for a vote, and whether the lower court made a mistake in denying them a preliminary injunction.

Read an article from the latest Watcher on the case; "Supreme Court Asked to Hear Challenge to New FEC Rule on Issue Ads."

Last year the Supreme Court ruled that genuine issue ads could not be prohibited during the periods before a federal election, but the Federal Election Commission (FEC) maintained that such ads must still contain a political disclaimer and be the subject of FEC reporting requirements which disclose the contributors to the group running the ads. An organization Citizens United challenged these disclosure provisions, arguing that since the ads are genuine issue ads, they cannot be subject to any regulation. In response, the D.C. district court decided that only the Supreme Court could decide whether the ads should still be subject to the disclosure provisions. The district court also ruled that the ads Citizens United wanted to air publicizing its documentary Hillary: The Movie, constitute as "electioneering communications."

"The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her."

Now, Citizens United has appealed this ruling to the United States Supreme.

While yes, issue ads should not be subject to disclosure requirements and should be challenged, however, this was the wrong forum to do so since the film does not address legislative issues.

Read the story in the LA Times here.

As discussed last week, the Supreme Court heard oral arguments in a case considering Indiana's restrictive voter ID law, which if upheld could disenfranchise countless voters. An editorial in the New York Times suspects this might occur considering the conservative nature of the Court, which has also become "increasingly hostile to voters." And to defend this statement, the Wisconsin Right to Life (WRTL) case is partly given as an example of such hostility. Though we can agree on the danger of upholding the voter ID law, the Court's decision on pre-election advertising restrictions is much different and to compare them in considering the Court's conservative direction misunderstands WRTL.

"Recently, however, the court struck down parts of the McCain-Feingold campaign finance law that limited 'Swift boat' style attack ads on the eve of elections. It was perfectly willing to reverse a federal law when the political power of corporations and wealthy individuals was at stake." Not so; in fact, in the WRTL case the Court was willing to protect the first amendment and ruled that the federal electioneering communications ban is unconstitutional when applied to genuine issue ads, regardless if the ads are produced by nonprofits or corporations. Nonprofits worked hard to protect the law from grassroots lobbying.

The Times editorial accurately warns of the outcome of the Court's voter ID decision, but in providing support of the Court's conservative drift, is mistaken in pointing to WRTL which was a free speech success for nonprofits.

The Financial Times reports on some nonprofits' plans for the upcoming year in 2008. With a troubling economy and increasing income gap, a demand for service organizations will only increase, leaving behind concerns that the groups will have adequate funds. In response, many organizations will become more involved in the political debate, and hopefully lawmakers will have an understanding of the sector's needs. Accordingly, service organizations must lobby the government in a time of economic instability so that the needs of the poor and middle class are met.

And non-profit chiefs are more likely than ever to lobby Washington. "[The Salvation Army] is getting involved with public policy in a non-partisan way. We are apolitical, but all of the issues that face society are impacted by politics," Gaither says. "It's about being a voice for the voiceless."

In pursuing their varied missions, many non-profits are working to cultivate local grassroots support while also broadening their national and global reach. Simultaneously with the launch of national media campaigns, the ACS [American Cancer Society] has trained cancer survivors from all 435 congressional districts to explain pressing policy changes that could facilitate a cure for cancer.

Posted by Amanda Adams, 01:44:27 PM



Groups Willing to Dress Up to Get Issues Addressed

With every group and issue area competing for the attention of the Presidential candidates, the Wall Street Journal reports on a popular method for many nonprofits during the primary season, the use of gimmicks. For example, members of the League of Conservation Voters dressed up as Santa Claus and Frosty the Snowman as part of an effort by to bring attention to global warming. And less dramatically, the Bill & Melinda Gates Foundation sponsored the "Ed in '08" campaign to make education the top issue in the election.

Students for Saving Social Security, founded on the cheap by two recent college graduates, uses all sorts of tactics to press the presidential candidates to pledge to make Social Security reform a priority in their campaigns. At events with senior citizens, they hand out T-shirts reading "My Grandparents Got Social Security, and All I Got Was This T-Shirt." At morning events, they pass out coffee in cups that read: "Wake Up to Social Security Reform." One young staffer crossed the state on foot dressed as an ostrich, and they often show up at events in their Ostrich Mobile - a beat-up GMC Suburban with slogans painted on it.

Posted by Amanda Adams, 01:03:42 PM

Monday, January 14, 2008

Watchdog Group Asks IRS To Investigate Texas Group On Charges Of Election Intervention

The Texas Freedom Network — a liberal government watchdog group promotes religious freedom — has asked the IRS to investigate the role a nonprofit played in supporting efforts to politically mobilize members of conservative Christian churches in Texas.

In their press release, the Texas Freedom Network urges the IRS to examine the financial support the Niemoller Foundation — a 501(c)(3) organization — provided to the Texas Restoration Project.

According to the Texas Freedom Network, the Texas Restoration Project "hosted thousands of pastors and their spouses at six "Pastors' Policy Briefings" in 2005, at a time when Republicans Sen. Kay Bailey Hutchison and state Comptroller Carole Strayhorn were considering seeking their party's nomination for governor. They sponsored a seventh event to celebrate Gov. Perry's inauguration in 2007. Gov. Perry spoke at all seven "briefings." No other candidates or potential candidates for governor in 2006 received invitations to speak."

Charities and religious organizations, including churches, are among tax-exempt organizations described in section 501(c)(3) of the Internal Revenue Code. They are prohibited from participating or intervening in any political campaign on behalf of, or in opposition to, any candidate for public office.

According to an IRS spokeswoman cited in an article by the Star-Telegram newspaper, "The IRS can neither confirm nor deny investigations in progress, completed in the past nor contemplated. The disclosure laws protect a taxpayer's or a tax-exempt organization's right to a confidential relationship with the IRS."

Read more in the Star-Telegram's January 11th story

Posted by Katie Clabby, 07:27:24 PM

Thursday, January 10, 2008

Report Marks 5-Year Anniversary of HAVA

A new report by electiononline.org — a project of Pew's Center on the States — reflects on the passage of the Help America Vote Act (HAVA) five years ago, examining what these crucial early years of development might mean for elections in HAVA's next five years and beyond. The report — The Help America Vote Act at 5 -- argues that

"HAVA represented a dramatic shift in the relationship between the federal government and its state and local counterparts in the area of election reform — namely the promise of nearly $4 billion in federal funds tied to a series of federal requirements, all to be enforced by a new federal agency.

Posted by Katie Clabby, 05:13:29 PM

Wednesday, January 09, 2008

Supreme Court Hears Oral Arguments In Critical Case on Voter ID

Today the U.S. Supreme Court heard oral arguments in the much anticipated voter ID law case — Crawford v. Marion County Election Board . The Supreme Court Justices must determine whether to uphold an April 2006 decision , written by Judge Posner of the U.S. Court of Appeals 7th Circuit, which supported Indiana's requirement that voters present valid photo identification before being allowed to vote. The New York Times is reporting that the justices "appeared reluctant" to strike down the law. Justice Anthony Kennedy said, "You want us to invalidate the statute because of minimal inconvenience?"

According to the Brennan Center for Justice , Indiana's law is the most restrictive in the country. In a New York Times article, Daniel P. Tokaji, a professor of law at Ohio State University, labeled Crawford v. Marion County Election Board "the most important case involving the mechanics of election administration in decades."

The plaintiffs in the case are the Indiana Democratic Party, the Marion Democratic Central Committee, and League of Women Voters. They assert four problems with the Indiana voter ID law:

1. The cost of the identification, travel and birth certificate required to obtain identification constitute a poll tax;
2. The need to go to the county election board to sign an affidavit constitutes an added unnecessary burden;
3. The regulations do not apply to all voters, namely absentee voters, giving rise to disparate treatment; and,
4. Many of the Indiana Bureaus of Motor Vehicles, the only location to obtain valid identification, are difficult to get to, especially in rural counties.

Descriptions of the amicus briefs filed in the case can be found at the Brennan Center for Justice's website.

Posted by Katie Clabby, 01:25:55 PM

Tuesday, January 08, 2008

Article urges bright-line rule on partisan intervention in elections by 501(c)(3)s

In an article in the current edition of the University of North Carolina School of Law's First Amendment Law Review , OMB Watch's Nonprofit Advocacy Director Kay Guinane argues that IRS rules regulating political activities of 501(c)(3) organizations should be changed to ensure the First Amendment protections of charities. Guinane's piece was published as part of the First Amendment Law Review's 2007 Symposium: No Strings Attached? — The First Amendment and Tax-Exempt Organizations.

Charities, educational institutions and religious organizations, including churches, are among tax-exempt organizations described in section 501(c)(3) of the Internal Revenue Code. They are prohibited from participating or intervening in any political campaign on behalf of, or in opposition to, any candidate for public office.

In "Wanted: A Bright-Line Test Defining Prohibited Intervention in Elections by 501(c)(3) Organizations" — Guinane asserts,

"There are no IRS regulations that clearly define political intervention and there is very little case law in this area. The combination of vague standards and a new enforcement process that gives 501(c)(3) organizations limited ability to challenge IRS action raises serious constitutional concerns. In short, the current IRS enforcement regime poses serious First Amendment problems for 501(c)(3) organizations."

In her article, Guinane first evaluates the current regulations on political intervention by charities. Second, she argues that change is needed now in light of two recent developments: the passage and implementation of the Help America Vote Act (HAVA) and new IRS enforcement procedures, which began in 2004. Third, Guinane makes a case for why a bright line rule would help the IRS, the charitable community, and our democracy. Fourth, she reviews arguments against such a bright line rule. Finally, Guinane examines the U.S. Supreme Court's rationale in its recent decision in Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL) and what impact that decision could have on IRS rules on political intervention.

Guinane concludes the article, saying

"As America's only nonpartisan sector, the charities, educational institutions, and religious organizations that make up the 501(c)(3) universe provide a vital service to the public through their voter education and mobilization efforts, as well as advocacy on important public policy issues. The current IRS enforcement regime discourages this activity because of its vague standards, lack of transparency, broad discretion, and procedures in the PACI program. Development of bright-line rules that clearly define permissible activity, along with changes in the PACI process, would lift the chilling effect that results from the current situation."

For more information on the ban, visit OMB Watch's Resource Center on IRS Rules on Election Activities of Charities & Churches

Posted by Katie Clabby, 12:20:56 PM

Monday, January 07, 2008

Pastors in Iowa Supporting Huckabee Received Anonymous Warning Letters

The Washington Post reported last week that several Iowa pastors supporting Republican Presidential nominee Mike Huckabee received anonymous letters cautioning that support of Huckabee could jeopardize their tax-exempt status. According to IRS regulations, charities, educational institutions and religious organizations are prohibited from participating or intervening in any political campaign on behalf of, or in opposition to, any candidate for public office. According to the law, religious ministers and pastors can endorse a candidate as individuals, but cannot use their position to encourage members to vote for a specific nominee. See OMB Watch's website for more information on the ban.

In the January 3rd Washington Post article , the pastors received letters with no return address. The letters said that the IRS is investigating churches that improperly support a candidate for office.

Americans United for Separation of Church and State — an organization that has repeatedly filed complaints with the IRS alleging church politicking — commented on the letters on its website blog , writing,

"Although most religious leaders follow the rules, Americans United continues to encounter examples of pastors who step way over the line. They issue endorsements from the pulpit, hold rallies for candidates in church or use church resources — like bulletins, marquee signs and letterhead — to promote or attack candidates."

Posted by Katie Clabby, 02:16:54 PM

Thursday, January 03, 2008

In Defense of Free Speech Rights and Fair Elections

An editorial in today's LA Times responds to the worries that outside groups will have dangerous influences on the election, taking on the concept that, "a 'fair' election . . . means ones in which voters are shielded from the propaganda of special interest groups." Importantly, it is noted that the support of wealthy individuals, or newspaper editorial boards, is just as prevalent as any outside group.

The 1st Amendment is a significant barrier to the sort of 'fair' . . . elections in which special-interest groups (but not newspapers or Oprah!) are prevented from saying too much about candidates for public office lest their message change a voter's mind. Huckabee was right to tell the Elks that "your vote counts as much as a person who can write a check for $100,000." But their votes — and all of ours — will be influenced by messages that require the writing of checks, as well as the framing of arguments, to get into circulation. If that's anti-democratic, so is the 1st Amendment.

Posted by Amanda Adams, 05:24:38 PM



What Will Become of the FEC?

The Federal Election Commission (FEC) has begun 2008 with only two sitting commissioners, Republican David Mason and Democrat Ellen Weintraubunder both serving expired terms themselves. A stalled Senate confirmation of commissioners was caused by the controversial Republican Commissioner Hans von Spakovsky who many opposed because of his work in the Justice Department's civil rights division where he supported efforts to require that voters present a photo ID. Bob Bauer at moresoftmoneyhardlaw.com has a few opinions on the state of the FEC, here and here.

Many blame Senate Minority Leader Mitch McConnell (R-KY) for insisting that all nominees were voted on together, and to ensure that von Spakovsky was not confirmed Senate Democrats blocked a vote on all nominations, to some extent causing this FEC "shutdown." A Democracy 21 press release states; "This action by Senator McConnell ensured that beginning on January 1, 2008 there would be no FEC capable of enforcing the campaign finance laws, opening investigations, issuing advisory opinions, writing regulations, bringing lawsuits, certifying public matching funds for presidential candidates or undertaking other activities that require the approval of a majority of the Commissioners."

One issue that will be left unresolved is the issuing of new rules on the disclosure of bundling contributions in accordance with the Honest Leadership and Open Government Act. As the New York Times reports, the "much-ballyhooed provision in the new law is being delayed indefinitely." The article also discusses other aspects of the new lobbying and ethics law and the realities now that the law has gone into effect on January 1.

The FEC will continue to process campaign finance disclosure reports and respond to court challenges. One of those important court cases that will be considered is one that challenges the disclosure requirements for funding of broadcast messages that refer to federal candidates in the weeks before an election. BNA Money and Politics ($$) reports that on January 10 a three judge federal court will hear the case brought forth by Citizens United. The FEC issued rules allowing genuine issue ads prior to an election that mention a candidate's name, but reporting requirements were upheld in the new rules.

Posted by Amanda Adams, 12:24:57 PM