On Apr. 28, 2008, the League of Women Voters of Florida and several voting rights advocates filed a new lawsuit challenging a Florida voter registration law that imposes prohibitive fines on voter registration groups and risks preventing eligible Florida citizens from registering and voting in the 2008 elections.

Under Florida law, fines are levied against charities for each voter registration not submitted within ten days of its completion. For each late registration, a nonprofit conducting a voter registration drive would be fined $50, posing a tremendous financial burden on nonprofits seeking to legally conduct voter registration drives.

As quoted in a press release by her organization, Dianne Wheatley-Giliotti, president of the League of Women Voters of Florida and a plaintiff in the suit, said,

"This law makes it extremely risky for our volunteers and for our organization to conduct voter registration drives in Florida… The escalating fines make voter registration drives prohibitively expensive, even for individuals who just want to help once a month. The threat of paying costly fees will chill registration efforts and keep eligible voters from the voter rolls."

To learn more, read the League of Women Voter's press release on the suit here and check out OMB Watch's Sept. 2007 article on the Florida voter registration rules Nonprofits Challenge Two Florida Laws Regulating Voter Registration.

Update:
The Brennan Center for Justice issued a press release announcing that the third-party voter registration law will not be enforced until July. "As a result, groups and individuals who conduct voter registration drives in Florida can proceed with their voter registration activities without fear of being fined under the law, until at least early July 2008."

The 501(c)(4) organization, U.S. Term Limits, now has some more trouble. The Democratic Senatorial Campaign Committee (DSCC) has filed a complaint with the Internal Revenue Service (IRS) claiming that the group violated the law by not disclosing on its Web site that contributions made to the group are not tax-deductible.

Roll Call ($$) reports that the "complaint against U.S. Term Limits comes as the Internal Revenue Service is stepping up its enforcement of nonprofit organizations that engage in political activity, particularly 527s and 'social welfare' groups that register under section 501(c)(4) of the tax code. The DSCC's complaint to the IRS is the first time that the committee has sought to strip an outside political group of its tax-free status."

Meanwhile, the Democratic Congressional Campaign Committee (DCCC) filed a second complaint with the Federal Election Commission (FEC) against the organization Freedom's Watch. The DCCC complaint alleges that Freedom's Watch ran a television "attack ad that directly and illegally advocates the defeat of a Democratic candidate and also for failing to disclose the names of the donors funding that ad."

1 - Under Trained and Not Enough Poll Workers: In each primary covered by Election Protection, the dedicated cadre of poll workers misapplied many election rules — from what ballot to give which voter, to what to do when election equipment broke down — causing voters to unnecessarily cast provisional ballots or, worse, to leave the polling place without voting.
2 - Election Machinery Breakdowns : Last-minute changes in voting equipment and new procedures at the polls caused confusion among voters, poll workers and election administrators often leading to disenfranchisement. But it was not only human error and confusion; ballot scanners jammed, electronic voting machines broke down and new electronic poll books malfunctioned.
3 - Registration Roll Problems: From state to state, eligible voters who submitted timely registration applications failed to appear on the registration rolls. Other voters showed up on the rolls registered with a political party other than the one with which they intended to register.
4 - Confusion Over Voter Identification Requirements: Voters across the country were improperly asked for identification. Some poll workers, apparently confused about the requirements in their state, were implementing illegal and restrictive voter identification requirements, turning away eligible voters who did not have identification.

On Wednesday, voting-rights advocate ACORN (Association of Community Organizations for Reform Now) filed suit against the state of Missouri for failing to implement a key provision of the National Voter Registration Act ("NVRA") of 1993 in failing to provide voter registration opportunities at state public assistance agencies. According to ACORN's press release on the lawsuit, ACORN is seeking a preliminary injunction that would require Missouri's Department of Social Services (DSS) to come into compliance with the NVRA as soon as the court can set a hearing date.

ACORN is represented by lawyers from national groups Project Vote, Demos, and the Lawyers' Committee for Civil Rights Under Law.

The official complaint filed by ACORN is available online through votelaw.com.

For more information on state enforcement of the NVRA provision designed to enable low-income Americans to register to vote more easily, read OMB Watch's recent article "States Failing to Implement Critical Voting Rights Laws"

An article in the St. Louis Dispatch also provides more information on the lawsuit.

Representative Jeb Hensarling (R-TX) has introduced the Blogger Protection Act of 2008, HR5699. The bill would amend the Federal Election Campaign Act to exempt bloggers and their internet activity from being considered as a contribution to or expenditure of a campaign. The bill would "cover blogs and other Internet and electronic publications under the general media exemption pertaining to expenditures." Therefore bloggers would be able to write about the positions of federal candidates without their material being considered a contribution to any campaign. What about bloggers at nonprofits?

The Center for Competitive Politics (CCP) supports this bill. A posting from CCP details chairman Bradley A. Smith's remarks; "The FEC eventually issued regulations two years ago preventing bloggers from being hampered by campaign finance laws. But the blogger protections are regulatory and bloggers do not enjoy statutory protection. 'Without this law, there is no guarantee that a future Commission won't regulate the blogosphere,' Smith observed. 'Congress doesn't need to act for regulations to change.'"

The Chronicle of Philanthropy has put together a new section of their website that has information about the presidential candidates and where they stand on the issues that matter to nonprofit causes. The Chronicle also invites readers to send in suggestions and additional information. Click here to go to the Chronicle's Special Report on the Campaign 2008.

The Internal Revenue Service (IRS) has announced that its Political Activities Compliance Initiative (PACI) will be in effect for the 2008 election season. "The PACI program seeks to educate section 501(c)(3) organizations such as charities and churches about the federal law concerning political campaign activity and to enforce the law in this area." The IRS press release reports that letters are being sent to the national political party committees, and have asked candidates that their contacts with charitable organizations do not unintentionally put the group's tax-exemption at risk.

The IRS has also posted a program letter to its Exempt Organizations employees from Lois Lerner, the director of exempt organizations. The letter explains the PACI objectives, to provide information on the prohibition on political campaign activity and to "maintain a meaningful enforcement presence in this area."

The letter notes two areas where past experience has proven the need fore more attention; issue advocacy and internet cases. The memo emphasizes that the facts and circumstances test will still be used, for example, "instances involving issue advocacy carried out through single issue pamphlets described as 'voter guides'."

While these single-issue pamphlets do not on their face provide information on specific candidates or elections, that should not end the inquiry. . . . consideration must be given to the context in which it is distributed, and to whether the manner of distribution and other facts and circumstances surrounding the communication tips the scale in one direction or another. Distribution of a communication that on its face appears to satisfy the requirements of a permitted issue advocacy communication may become impermissible campaign intervention if it is accompanied by a statement, or an action, that ties a position articulated in the communication to a particular candidate or election.

The letter warns; "EO must be prepared to face taxpayer challenges, which may lead to court, regarding IRS published positions on issue advocacy, whether the fact patterns involved match the examples provided in the Revenue Ruling or present novel facts and circumstances."

Meanwhile, earlier this week, Roll Call ($$) reported that "[t]ax regulators are hinting at an imminent crackdown of outside political outfits masquerading as nonprofit organizations [. . .] Lerner [. . . ] recently told Roll Call that the agency is taking a 'close look' at allegations involving excessive political activity, particularly by 'social welfare' organizations that register under section 501(c)(4) of the federal tax code."

Robert Lenhard, one of the Democratic nominees for the Federal Election Commission (FEC), has withdrawn his name from consideration. This latest news means it could be even longer until the FEC is up and running with six commissioners.

However, this editorial from RollCall ($$) suggests that "the way out would be for the White House to nominate - and the Senate quickly confirm - two new commissioners, giving the panel four members, two from each party, and the ability to get work done this election year."

Senate Majority Leader Harry Reid (D-NV) sent White House Chief of Staff Joshua Bolten a letter saying Lenhard made this decision because of the Senate's delay in confirming the nominees. Reid's letter stated that "given the complete unwillingness among Republicans to constitute a functional FEC, I could not assure him of timely confirmation. This development now makes a resolution of this conflict more difficult because I have lost an exceptional leader for the FEC who will need to be replaced. That will necessitate a search for a new Democratic nominee and a new nomination process. That process typically takes at the least several months. "

On Friday April 11, a federal judge heard arguments in the SpeechNow.org case, and reportedly hopes to have a decision soon. According to BNA Money and Politics ($$); "The judge hinted, however, that he was unlikely to go along with SpeechNow.org's request for a preliminary injunction protecting it from enforcement of the [Federal Election Commission] FEC's 'political committee' rules." The group is challenging FEC rules that limit political action committees to collect no more than $5,000 annually from each contributor. SpeechNow.org wants to collect unlimited contributions to help elect federal candidates who support free political speech. "The judge suggested at the outset that SpeechNow.org was mainly a 'hypothetical' organization, created to launch a 'test case' regarding campaign finance rules."

Judge James Robertson, "asked several times why SpeechNow.org thought it should be immune from rules governing political action committees--such as contribution limits and detailed reporting requirements. He questioned how this position could be squared with SpeechNow.org's acknowledgement that the group could be subject to some campaign finance rules, mainly involving disclosure of those contributors who finance 'independent expenditures' advocating the election or defeat of candidates."

Steven Simpson, of the nonprofit Institute for Justice representing SpeechNow.org, "argued that the SpeechNow.org case was simple and followed the logic of previous Supreme Court decisions, which have upheld the right of individuals to spend as much as they want to help or hurt candidates, so long as the spending is not coordinated with a candidate. SpeechNow.org argues that this right should be extended to groups of individuals, so long as a group's actions are independent of candidates and political parties." However, FEC representatives warned that a decision in SpeechNow's favor "would lead to a flood of unlimited contributions to groups seeking to influence federal elections."

Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Federal Election Commission (FEC) charging that the nonprofit group U.S. Term Limits, violated federal election law by running a television and Internet advertisement urging the election of former Representative Bob Schaffer (R-CO) to the Senate. In the ad, school children thank Schaffer for his commitment to charter schools. According to CREW, the ad is not issue advocacy, but actually a campaign ad because it promotes the election of Schaffer. In addition, at the end of the ad there is a written disclaimer: "Paid for U.S. Term Limits. U.S. Term Limits is responsible for the content of this advertising. Not authorized by any candidate or candidate's committee. U.S. Term Limits does not endorse candidates for public office." However, when the ad was posted to YouTube, it labeled the ad "Bob Schaffer for Senate video." Meanwhile, the FEC continues to only have two commissioners and therefore unable to enforce election laws.

CREW's press release states; "The ad violates federal election law in two ways. First, anyone who pays for an ad expressly advocating the election or defeat of a clearly identified candidate is required to file a report describing the expenditure within 48 hours after the ad first runs. This ad first aired on March 26, 2008, meaning that a report should have been filed with the Commission no later than 11:59 p.m. on March 28, 2008, but no report was filed. Second, such television ads must include an audio statement that the person paying for the communication is responsible for the ad's content, which the USTL ad does not."

A church in Tampa, Florida has been accused of making illegal campaign contributors to Florida Governor Charlie Crist. According to the St. Petersburg Times, NBC News obtained an email in which staff members of Without Walls International Church — the largest church in Tampa — were directed to write checks out to Crist for his 2006 campaign. Florida state election records include several $500 donations to Crist within a few days after the email was dated, from individuals affiliated with Without Walls.

According to the original NBC report from April 4th, Without Walls is one of several churches currently under investigation by the Senate Finance Committee on allegations that church leaders improperly profited from church funds.

Without Walls has declined to comment on all the allegations.

501(c)(3) organizations are prohibited from participating or intervening in any political campaign on behalf of, or in opposition to, any candidate for public office. They cannot endorse any candidates, make donations to their campaigns, engage in fund raising, distribute statements, or become involved in any other activities that, directly or indirectly, may be beneficial or detrimental to any particular candidate.

For more information on the ban on political intervention by charities, see OMB Watch's Resource Center on the IRS Rules.

Earlier, the suggestion was made that "nonprofits" as a whole are increasingly being mentioned in the press in connection to their increased spending for political activity during the current campaign. A perfect example is laid out in this blog, with the headline, "Nonprofits are the New 527s." Understandably, it is easier to use "nonprofit" as opposed to 501(c)(4). 501(c)(4) organizations can be involved in some political activity as long as it is not their primary purpose. The blog makes it clear that the discussion is about 501(c)(4)'s, yet the headline remains vague. Such a generality does a disservice to 501(c)(3) organizations (public charities, public foundations, and private foundations). 501(c)(3) organizations can legally engage in nonpartisan voter engagement activities. In fact, such nonprofit groups do valuable work in getting voters to the polls on Election Day.

As OMB Watch Executive Director, Gary Bass says here, "Yet with headlines about 'nonprofits' engaging in electoral politics ... media organizations use too broad a brush and inadvertently tarnish the image of the nonprofit sector."

The U.S. District Court for the District of Columbia ruled that the Internal Revenue Service (IRS) violated its own rules in revoking the tax exemption of the Democratic Leadership Council (DLC). The DLC was granted tax-exempt status as a 501(c)(4) social welfare organization in 1986 and in 2002, the IRS revoked the DLC's tax-exempt status for the years 1997, 1998, and 1999 for its support to Democratic officials. The DLC argues that it acted within the bounds of a 501(c)(4) organization for those three years. Some have questioned IRS's targeting of the DLC, which has not been directly involved in election campaigns.

The opinion states; "the DLC did not omit or misstate a material fact in its 1985 application for that status or operate in a manner materially different from that originally represented when the IRS granted it that status. Accordingly, the IRS violated its regulations when it retroactively revoked that status, and the DLC is entitled to summary judgment and a refund of the taxes it paid for the years in question."

The IRS has to now refund over $20,000 in taxes paid and the government may have to pay the DLC's legal costs. BNA Money and Politics ($$) reports that the case "was viewed as potentially significant by campaign finance experts because it presented a rare instance where the tax status of an exempt organization involved in politics was being litigated in public, rather than handled in secrecy by IRS."

After the Supreme Court decided it will not hear the Citizens United case opposing disclosure of those paying for political ads in the weeks before an election (Citizens United v. FEC), the case now returns to a three judge federal district court. Citizens United hopes to have a decision that will impact the current campaign. BNA Money and Politics ($$) reports that "both sides expect the case to be appealed and ultimately to make its way back to the Supreme Court for any final ruling on the issue of disclosure of those funding political messages."

The Sunlight Foundation has created an initiative that allows citizens to participate in marking up the Transparency in Government Act of 2008, (TGA) on its site PublicMarkup.org. "Sunlight decided that public input and scrutiny would refine the bill and improve its chances of garnering lawmakers' support. Rather than immediately looking for legislators who might sponsor the bill, Sunlight, therefore, created PublicMarkup.org as a place to post the bill, and to allow you to comment on and suggest edits to the substance of the legislation." There are many provisions of the TGA, including requiring that all Freedom of Information Act requests online and making Congressional Research Service (CRS) reports available.

So, go ahead, markup.

A highly valuable resources for 501(c)(3) nonprofits has launched this week, NonprofitVoter.org. The site has everything a nonprofit would need to become active in the vital work of nonpartisan voter registration. "Nonprofits have inherent assets making them strong civic intermediaries to encourage voter and citizen participation." The site has useful resources such as toolkits, training resources, guides, and links. Check out the site that reminds us that "nonprofits have many opportunities to encourage voter and civic participation as part of its charitable mission so long as it is done on a nonpartisan basis."

Nonprofit Vote!

The Campaign Finance Institute (CFI) has released a new report, "Fast Start for Soft Money Groups in 2008 Election 527s Adapt to New Rules, 501(c)(4)s On the Upswing." The report highlights the fundraising of 527s and 501(c)(4) groups for the 2008 election. "Soft money groups are poised to play a major role in the 2008 election."

The report partly attributes the rise of 501(c)(4) spending to the Supreme Court decision in the Wisconsin Right to Life case, preventing the Federal Election Commission (FEC) from regulating some groups that engage in issue advocacy rather than electioneering.

However is there danger in referring to 501(c) groups generally, especially when the press picks up such reports? Will some think this also includes 501(c)(3) nonprofits from vague mentions, such as this BNA Money and Politics ($$) article, with "501(c) Groups" in the title.

On Monday, the Election Assistance Commission (EAC) announced that it will award $2 million in funding to five states to improve precinct-level election data. The EAC is now accepting applications. The deadline is April 28th.

According to the press release, the objective of this new program is "to provide states with the resources needed to develop and implement election data collection administrative and procedural best practices that can be shared with and replicated by other states."

On Wednesday, the U.S. Election Assistance Commission (EAC) released two quick start management guides for election officials. According to the EAC, these newest Quick Start Management Guides are part of a series of brochures designed to highlight and summarize the information contained in the chapters of the EAC's Election Management Guidelines (EMG).

The first—the Quick Start Management Guide on Uniformed and Overseas Voters — offers guidance on serving overseas voters, including communication strategies for securing and managing the voter registration and ballot transmission process.

The second guide — the Quick Start Management Guide for Developing an Audit Trail— outlines the EAC's recommendations for establishing and managing a process that properly documents all aspects of an election.

To read more about post-election audit, see Brennan Center's report on the issue: Post-Election Audits: Restoring Trust in Elections.

At a new website, Ask Your Lawmaker, anyone can ask lawmakers questions on issues they care about. The site was created by Capitol News Connection (CNCNews). Users of the site vote on the questions, and then CNCNews reporters track down lawmakers in Congress and on the campaign trail to get the questions answered. The answers are then posted back on www.askyourlawmaker.org. In addition, users can add a customizable widget to their own websites, allowing visitors to their websites to ask and rank questions.

A new website, www.votervoter.com allows individuals to either broadcast their own political ads or support those of others. The Nation states; "Forget the YouTube election. For the first time, Americans can now run their own political advertising campaigns on television, thanks to VoterVoter.com, a new business unit of a major advertising firm. Starting around $1,000, the site lets people purchase broadcast time in any market across the country, target specific demographics, and choose an ad for their candidate or cause -- or even make their own. Current users kept their names private, for now, but [Federal Election Commission] FEC law requires that buyers' names are listed at the end of the ads when they air."

VoterVoter also provides the FEC required sponsorship disclosure information at the end of each ad and automatically files for you the required FEC contribution form.

Such advertising paid for through VoterVoter is an interesting approach to citizens' communications to candidates. The Hill quotes founder Eric Mathewson; "In practice, people could always do this, but because putting together a TV commercial and buying TV time just seemed a little bit too onerous, it just didn't happen, [. . .] Mathewson said he has heard from Democrats and Republicans who wanted to do more to help an individual candidate but were stifled by $2,300 contribution limits."

An opinion piece in Politico defends the use of political robocalls.

Political robocalls can often be annoying. They may come during the dinner hour, slant the truth or even peddle outright falsehood. They can arrive several times a day — perhaps even more often than that near Election Day, if you live in a hotly contested state. [. . .] While robocalls may be conveyed by machines with artificial intelligence, at their core, these calls are citizen-to-citizen communication about the political issues of the day. Such speech is First Amendment activity, and limiting it should not be undertaken lightly. [. . .] Congress should respect the fact that robocalls offer an easy, effective and inexpensive means of communication that gives the recipient an opportunity to learn more about an issue or a candidate. It should tread lightly when contemplating this issue and consider only speech-sensitive proposals.

The article references a bill introduced by Senator Dianne Feinstein (D-CA) and Sen. Arlen Specter (R-PA), the Robocall Privacy Act of 2008, S. 2624. "Feinstein voiced support for amending the Federal Do Not Call Registry to add robocalls to its list of prohibited communications. Such an amendment would be very unwise and would likely be unconstitutional. The Do Not Call Registry is premised on the idea that Congress has been given great leeway under the Constitution to regulate commercial speech — telemarketers selling insurance and diet pills, for example." The author suggests that there are some provisions of the bill that could be permissible, such as restricting calls between 9 p.m. and 8 a.m.

In addition, the American Association of Political Consultants is planning on opposing efforts to regulate political robocalls for the same reasons, citing First Amendment objections. "The AAPC's 'First Amendment Legal Defense Fund' has sent out an appeal for donations to thousands of consultants to help fund what it anticipates could be a long legal fight." The letter clarifies that legislators should instead call on the responsible use of robocalls.