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.'"

Yesterday, April 21, was the first filing deadline for lobbying reports under provisions of the new Honest Leadership and Open Government Act of 2007 (HLOGA). And unfortunately for the National Association of Manufacturers (NAM), a federal district judge turned down their request for a delay of the April 11 decision upholding the member disclosure provision. In addition, NAM's "emergency appeal" with the U.S. Court of Appeals for the District of Columbia Circuit was denied. NAM's last hope was the Supreme Court. However, Supreme Court Chief Justice Roberts rejected an emergency request to delay the requirement.

And reportedly, NAM has "filed its lobbying report for the first quarter of the year without naming its members, citing its pending legal battle to overturn that requirement in the law."

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."

Text messaging can be a powerful tool for advocacy. For example text messages can be used as get out the vote reminders on Election Day or for updates on other various campaigns. However, wireless carriers are continuing to block some of these services, claiming they have the right to control what text messages are sent over their network. After Verizon denied NARAL Pro Choice America a short code, a five-digit code that subscribers can dial to receive a text message, several nonprofits filed petitions with the Federal Communications Commission (FCC) asking it to rule on restrictions on text messaging by wireless providers; "mobile carriers' discrimination has demonstrated that regulation is necessary to prevent unreasonable discrimination."

Reportedly, Gigi Sohn, president of Public Knowledge said, "If wireless carriers are allowed to decide who can speak to whom, it has huge implications for free speech, civic discourse, accessibility for the disabled ... and for competition."

Public Knowledge has an action alert where you can tell the FCC to protect text messaging.

The National Association of Manufacturers' (NAM) challenge to a new member disclosure law was dismissed on April 11. NAM was challenging a provision in the Honest Leadership and Open Government Act (HLOGA) that requires coalitions and associations to reveal organization that contribute at least $5,000 per quarter and actively participates in the lobbying campaigns. The lawsuit attempted to block implementation of the new law, charging that the provision was too vague, and would interfere with their First Amendment right of free association. However, the judge found that the provision in question was "narrowly tailored to serve compelling government interests, and is neither vague on its face nor as applied to the NAM."

The Hill reports that NAM will ask for a stay and appeal the ruling. "We remain convinced that many of the law's burdensome and intrusive disclosure requirements will have a serious chilling effect on the constitutional rights of our members," NAM President John Engler said.

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."

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 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."

The Campaign Legal Center has updated its two page summary of the Honest Government and Open Leadership Act (HLOGA). The document is a great resource to have on hand with a clear outline of the different provisions of the law. Some of which have taken effect while others are still being interpreted and not yet implemented.

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.