I usually don't forward these messages but this is alarming for nonforprofit ors
Read on. It's a long one
roshani
URGENT! ACTION NEEDED TODAY
TO: NLIHC Board of Directors, State Housing
Coalitions and all NLIHC members
FROM: Sheila Crowley
DATE: February 3, 2004
RE: Potential restrictions on advocacy speech
I have just returned from a briefing on a pending action by the
Federal Election Commission that could severely restrict the
ability of 501(c)(3) and 501 (c)(4) organizations to engage in
federal policy advocacy that could be considered to "promote,
support, attack, or oppose" any candidate for federal office,
including people currently in office. This means that a 501(c)(3)
and 501 (c)(4) organization could not issue a press release, a
report, a fundraising letter, post something on a website, or
engage in any other form of public communication that was
critical or supportive of the policy positions of President Bush,
any other candidate for President, or anyone running for Congress
or the Senate unless it was using funds specifically raised from
individuals who would be limited to contributions of $5,000 or
less.
This would have a severe chilling effect on all federal public
policy advocacy speech. For example, NLIHC's press release
yesterday on President Bush's plans for the housing voucher
program would not be allowable.
A group of public interest attorneys, including NLIHC's attorney
Gail Harmon, have drafted a comment letter to the FEC that is
attached. They are seeking as many as organizations as possible
to sign on to this letter by no later than 10:00 am Wednesday,
February 4. Yes, that is tomorrow. (The implications of the FEC
action have just come to light apparently and the deadline for
comments is tomorrow at noon.) This is simply the first legal
move. An extensive public relations campaign is also planned.
I have added the National Low Income Housing Coalition and the
National Low Income Housing Policy Center (our 501(c)(4)) to the
signatories and urge you to do the same.
To sign on to the letter, email Elliot Mincberg at People for the
American Way at [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]>
with the full name of your organization and the name of the
person authorizing the sign-on.
The Alliance for Justice will be posting details of what the FEC
is doing in the next few days at www.afj.org
<http://www.afj.org>.
Thank you for your prompt response.
<<sign on letter to FEC.doc>>
Sheila Crowley
President
National Low Income Housing Coalition
1012 14th St. NW, Suite 610
Washington, DC 20005
202-662-1530
fax-202-393-1973
========================
DOCUMENT/SIGN-ON LETTER
Draft (2/3/04)
By Electronic and Hand Delivery
Commission Secretary
Federal Election Commission
999 E Street, NW
Washington, DC 20463
Re: Draft Advisory Opinion 2003-37
Dear Commission Secretary:
The [insert final number] undersigned environmental, civil
rights, civil liberties, women�s rights, and
________________organizations submit these comments on the
General Counsel�s draft of Advisory Opinion 2003-37 prepared in
response to a request by Americans for a Better Country (�ABC�).
For the reasons set forth below, we wish to express our
profound concern over the broad scope of the draft opinion, both
as it applies to federal political committees and as it appears
to reach the educational, advocacy and voter participation
activities of nonfederal political organizations and other
nonprofit corporations. There is no authority under the
Commission�s regulations, the Federal Election Campaign Act
(�FECA�) or the Supreme Court�s recent opinion in McConnell v.
FEC to regulate these activities in the manner suggested in the
draft opinion.
The organizations signing this letter are organized as nonprofit
corporations under state law and are exempt from federal income
taxation under sections 501(c)(3) and 501(c)(4) of the Internal
Revenue Code (�Code�). Several organizations operate as
qualified nonprofit corporations under 11 C.F.R. � 114.10. A
number of the signatories have established separate segregated
funds that are registered with the Commission as political
committees; many also maintain nonfederal political
organizations established under IRC section 527(e)(3) that are
not registered with the Commission. The common interest among
all of these organizations is that we regularly seek to educate
the public and to advocate positions on progressive legislative
and policy issues, including the positions taken by federal
officeholders with respect to these issues.
If the draft opinion is adopted as proposed by the General
Counsel, the result may be that we could no longer conduct these
activities unless we raise and spend funds in accordance with
the source and contribution limitations of the FECA. For most
of our organizations, raising funds under these restrictions
would be impossible. For those organizations represented here
that are exclusively organized under IRC section 501(c)(3), we
are not permitted under federal tax law to establish or maintain
a separate segregated fund to engage in political activity.
Therefore, this opinion would entirely shut down many of the
advocacy activities of our organizations. As 501(c)(3) and
501(c)(4) organizations, we are funded by large and small
donors. Most of the undersigned organizations could not exist
without the large grants and contributions from foundations,
corporations and individuals that are prohibited under FECA.
See 2 U.S.C. � 441a and 441b. Even those of us that operate
federal political committees are able to raise relatively small
amounts from our members for these purposes - amounts that could
never support the extensive educational and advocacy programs we
have conducted for many years. In any event these limited
contributions are desperately needed to support our political
programs as required by law. We therefore urge the Commission,
with the greatest sense of urgency and in the strongest terms
possible, not to issue the draft opinion in its present form.
Discussion
Although numerous aspects of the draft opinion are extremely
troublesome, we are most concerned by the opinion�s proposed
reworking and expansion of the definition of �expenditures� in
FECA � 431(9) to include any communication that �promotes,
supports, attacks, or opposes� a candidate for federal office.
While the facts of the current request concern a nonconnected
political committee, by adopting this analysis the opinion can
be read to extend to independent issue groups as well. As
nonprofit corporations, the vast majority of us are flatly
prohibited by FECA � 441b from making any �contribution or
expenditure in connection with any election to any political
office.� Because we frequently refer to federal officeholders
and candidates in our communications with the general public,
and do so in a manner that may be highly critical of the
officeholders� positions on issues, the proposed redefinition of
�expenditures� would cause many of our currently lawful
communications to become unlawful corporate expenditures.
Just in the past few months, for example, the organizations
represented here have criticized Congress� and the
Administration�s policies and actions concerning such issues as
tax cuts for the rich, Medicare and prescription drugs, oil
exploration in the Arctic, nominations to the federal judiciary,
abuses of civil liberties in connection with the war on terror,
and numerous other issues. There is little doubt, we fear, that
these communications would be perceived both by our opponents,
who are constantly looking for ways to handcuff our efforts on
behalf of our causes, and, based on the reasoning of this draft,
by the Commission itself, as �opposing�, or even �attacking,�
President Bush and other federal officeholders. This is the
case even though these communications have not identified Mr.
Bush or any other officeholder as a candidate for re-election,
referred to the November 2004 election, or otherwise urged or
implied opposition to the President�s or any other individual�s
candidacy.
These communications have been aimed, not at these individuals
as candidates, but as current officeholders in an attempt to
influence legislation and public policy. Making it unlawful to
criticize the policies and actions of a sitting President or
Members of Congress except under the auspices of a registered
political committee is one of the most fundamental attacks on
the freedom of speech and freedom of association of American
citizens ever contemplated by a governmental agency.
The proposed definition of �expenditures� is nowhere to be found
in section 441b, even though it is the only provision of federal
election law governing contributions and expenditures by
nonprofit corporations such as those represented here. Under
the Supreme Court�s decisions in Buckley v. Valeo and
Massachusetts Citizens For Life v. FEC, section 441b was
authoritatively construed to prohibit corporate communications
that expressly advocate the election or defeat of clearly
identified candidates. We have relied on this long-standing
interpretation and have fully complied with it in all of our
educational and advocacy programs. In passing the Bipartisan
Campaign Reform Act of 2002 (BCRA), Congress restricted certain
limited broadcast communications, but it did nothing to modify
the express advocacy test as applied to communications in other
forms of media or even to broadcast communications disseminated
outside of BCRA�s 30/60 day black-out periods.
In redefining �expenditures,� the draft opinion relies on the
Supreme Court�s recent decision in McConnell v. FEC, that upheld
the constitutionality of BCRA�s provisions limiting, and in some
case prohibiting, political party committees from using
nonfederal funds to support communications that �promote,
support, attack or oppose� federal candidates. But, these
restrictions are contained in a separate provision of BCRA, 2
U.S.C. � 441i, that applies exclusively to political parties and
no other organization or entity. Most importantly, Congress did
not amend the provisions applicable to corporations in a similar
manner, nor did it revise the statutory definition of
�expenditures� as proposed in the draft opinion. The Commission
has no authority to enact a new standard for corporate
communications when Congress itself chose not to do so.
The extent to which the draft advisory opinion reaches far
beyond Congress� intent is also demonstrated by recent
legislation governing so-called �527" or �soft-money� political
organizations. Even prior to BCRA, Congress considered the
operation of these organizations and concluded that, in the
interest of greater public disclosure, they should register and
file reports with the Internal Revenue Service. See Pub.L.
106-230, 114 Stat. 477 (July 1, 2000), codified at I.R.C. ��
527(i)-(j). In 2002, shortly after it enacted BCRA, Congress
again considered the disclosure obligations for these
organizations and amended the registration and reporting
requirements to ease the burden on some of the organizations
covered by the 2000 amendments. See Pub.L. 107-276, 116 Stat.
1929 (Nov. 2, 2002). In neither instance, however, did Congress
outlaw 527 political organizations or even authorize the IRS to
curtail their activities. Furthermore, in ruling on the
constitutionality of BCRA, the Supreme Court expressly noted
that despite the Act�s limitations on the fundraising abilities
of political parties, �interest groups, however, remain free to
raise soft money to fund voter registration, GOTV activities,
mailings, and broadcast advertising.� McConnell v. FEC, 540
U.S. ________ at _________ [slip op. at 80]. This plain reading
of the statute is inconsistent with the approach of the proposed
advisory opinion. If the Commission adopts the ABC opinion as
drafted, it would be to appropriate to itself authority which
Congress has twice refused to provide.
The draft opinion is also inconsistent with the Commission�s own
rulemaking excluding section 501(c)(3) organizations from the
ban on electioneering communications. Several months ago, the
Commission recognized the need to limit the scope of BCRA�s
prohibition on 501(c)(3) organizations to protect advocacy
communications by these groups:
The Commission believes the purpose of BCRA is not served by
discouraging such charitable organizations from participating
in what the public considers highly desirable and beneficial
activity, simply to foreclose a theoretical threat from
organizations that has not been manifested, and which such
organizations, by their nature, do not do.
Final Rules and Explanation and Justification, �Electioneering
Communications,� 67 Fed. Reg. 65190, 65200 (Oct. 23, 2002)
Based on this draft opinion, it appears the Commission is
prepared to consider denying all 501(c) organizations the ability
to engage in this �highly desirable and beneficial activity.�
Even if this conclusion is not mandated by the terms of the
opinion itself, it is the logical conclusion based on the
reasoning set forth here.
Recent IRS guidance, in stark contrast to the position set
forth in the draft opinion, confirms that 501(c) organizations
are permitted to continue their advocacy activities, including
attempts to influence legislative and administrative actions,
throughout an election year. See Rev. Rul. 2004-6. These
communications may in some cases oppose the position of an
officeholder, who is also a candidate, in a manner that could
be deemed, under the broad language of the General Counsel�s
draft, to �support� or �attack� a candidate for federal office.
Nevertheless, the IRS ruled that such communications, under
the circumstances described in the ruling, are consistent with
the exempt purposes of a 501(c) organization and would not
subject them to tax or jeopardize their exempt status.
While we have focused on the impact of the draft opinion on
nonprofit organizations� educational and advocacy activities, we
are also concerned about how the opinion would handcuff our
ability to undertake voter participation activities such as
voter registration and get-out-the-vote, especially among
minority and other under-represented communities. In response
to question 8 of the opinion, the draft proposes that voter
registration and GOTV public communications that do not
expressly advocate, but �promote, support, attack or oppose� a
federal candidate, must be paid entirely with federally
permissible funds. Therefore, a nonprofit organization that
informs the public that President Bush and his Administration
has permitted corporations to increase harmful mercury emissions
and encourages individuals to register to vote would be required
to pay for this activity with federal funds. The regulations at
section 114.4 state only that voter registration conducted by a
corporation must not contain express advocacy or be coordinated
with a candidate or political party. The Commission has no
authority to broaden the restriction placed on these voter
participation activities.
We would like to address two other aspects of the draft opinion,
which cause equally deep concerns. First, the draft opinion
states that any fundraising communications that �support,
promote, attack or oppose� a federal candidate must be paid for
with federally permissible funds and may only raise funds
subject to the federal source and contribution limits. Unlike
other portions of the opinion, this language is not even
arguably limited to the nonconnected PAC making this request but
applies to any solicitation. Thus, it appears that a
fundraising letter from our organizations that appeals for
contributions to �fight against President Bush�s budget cuts
that threaten to undermine effective international family
planning� would be subject to this requirement. The effect of
such a conclusion is staggering. In addition to soliciting
contributions, fundraising communications provide another
critical avenue for reinforcing and generating public support
for our advocacy messages. We, and other nonprofit
organizations like us, would be required to choose to forgo
either the messages that inform our supporters about the public
policy debate or the funds that are vital to our existence.
There is no legal basis for imposing this restraint on the
broader nonprofit community.
Finally, the draft opinion proposes to extend the prohibition
on foreign national contributions to any organizations that
engage in voter registration, get-out-the-vote and other
activities in connection with a federal, state or local
election for public office as well as ballot measures. Many of
our 501(c) organizations conduct these activities. For some of
us, these activities comprise a major part of our program;
others engage in these activities only as the need arises
related to a specific policy objective or program. Our ability
to continue to engage in these activities would be threatened
if we were required to screen all of our contributions to
determine whether or not they were made by a foreign national
as defined under the FECA. The Commission, even in its own
rulemakings on foreign national contributions, has never
suggested that there is a need to extend the coverage of this
provision to all nonprofit organizations that conduct voter
participation activities. Such an intrusion would have a
severe impact on these nonpartisan activities that are vital to
fostering civic participation.
Conclusion
This draft opinion poses an unprecedented threat to the advocacy
and educational activities of the undersigned organizations as
well as many organizations that are not represented. We
respectfully urge the Commission to reject this draft in its
current form.
Respectfully submitted,
TO: NLIHC Board of Directors, State Housing
Coalitions and all NLIHC members
FROM: Sheila Crowley
DATE: February 3, 2004
RE: Potential restrictions on advocacy speech
I have just returned from a briefing on a pending action by the
Federal Election Commission that could severely restrict the
ability of 501(c)(3) and 501 (c)(4) organizations to engage in
federal policy advocacy that could be considered to "promote,
support, attack, or oppose" any candidate for federal office,
including people currently in office. This means that a 501(c)(3)
and 501 (c)(4) organization could not issue a press release, a
report, a fundraising letter, post something on a website, or
engage in any other form of public communication that was
critical or supportive of the policy positions of President Bush,
any other candidate for President, or anyone running for Congress
or the Senate unless it was using funds specifically raised from
individuals who would be limited to contributions of $5,000 or
less.
This would have a severe chilling effect on all federal public
policy advocacy speech. For example, NLIHC's press release
yesterday on President Bush's plans for the housing voucher
program would not be allowable.
A group of public interest attorneys, including NLIHC's attorney
Gail Harmon, have drafted a comment letter to the FEC that is
attached. They are seeking as many as organizations as possible
to sign on to this letter by no later than 10:00 am Wednesday,
February 4. Yes, that is tomorrow. (The implications of the FEC
action have just come to light apparently and the deadline for
comments is tomorrow at noon.) This is simply the first legal
move. An extensive public relations campaign is also planned.
I have added the National Low Income Housing Coalition and the
National Low Income Housing Policy Center (our 501(c)(4)) to the
signatories and urge you to do the same.
To sign on to the letter, email Elliot Mincberg at People for the
American Way at [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]>
with the full name of your organization and the name of the
person authorizing the sign-on.
The Alliance for Justice will be posting details of what the FEC
is doing in the next few days at www.afj.org
<http://www.afj.org>.
Thank you for your prompt response.
<<sign on letter to FEC.doc>>
Sheila Crowley
President
National Low Income Housing Coalition
1012 14th St. NW, Suite 610
Washington, DC 20005
202-662-1530
fax-202-393-1973
========================
DOCUMENT/SIGN-ON LETTER
Draft (2/3/04)
By Electronic and Hand Delivery
Commission Secretary
Federal Election Commission
999 E Street, NW
Washington, DC 20463
Re: Draft Advisory Opinion 2003-37
Dear Commission Secretary:
The [insert final number] undersigned environmental, civil
rights, civil liberties, women�s rights, and
________________organizations submit these comments on the
General Counsel�s draft of Advisory Opinion 2003-37 prepared in
response to a request by Americans for a Better Country (�ABC�).
For the reasons set forth below, we wish to express our
profound concern over the broad scope of the draft opinion, both
as it applies to federal political committees and as it appears
to reach the educational, advocacy and voter participation
activities of nonfederal political organizations and other
nonprofit corporations. There is no authority under the
Commission�s regulations, the Federal Election Campaign Act
(�FECA�) or the Supreme Court�s recent opinion in McConnell v.
FEC to regulate these activities in the manner suggested in the
draft opinion.
The organizations signing this letter are organized as nonprofit
corporations under state law and are exempt from federal income
taxation under sections 501(c)(3) and 501(c)(4) of the Internal
Revenue Code (�Code�). Several organizations operate as
qualified nonprofit corporations under 11 C.F.R. � 114.10. A
number of the signatories have established separate segregated
funds that are registered with the Commission as political
committees; many also maintain nonfederal political
organizations established under IRC section 527(e)(3) that are
not registered with the Commission. The common interest among
all of these organizations is that we regularly seek to educate
the public and to advocate positions on progressive legislative
and policy issues, including the positions taken by federal
officeholders with respect to these issues.
If the draft opinion is adopted as proposed by the General
Counsel, the result may be that we could no longer conduct these
activities unless we raise and spend funds in accordance with
the source and contribution limitations of the FECA. For most
of our organizations, raising funds under these restrictions
would be impossible. For those organizations represented here
that are exclusively organized under IRC section 501(c)(3), we
are not permitted under federal tax law to establish or maintain
a separate segregated fund to engage in political activity.
Therefore, this opinion would entirely shut down many of the
advocacy activities of our organizations. As 501(c)(3) and
501(c)(4) organizations, we are funded by large and small
donors. Most of the undersigned organizations could not exist
without the large grants and contributions from foundations,
corporations and individuals that are prohibited under FECA.
See 2 U.S.C. � 441a and 441b. Even those of us that operate
federal political committees are able to raise relatively small
amounts from our members for these purposes - amounts that could
never support the extensive educational and advocacy programs we
have conducted for many years. In any event these limited
contributions are desperately needed to support our political
programs as required by law. We therefore urge the Commission,
with the greatest sense of urgency and in the strongest terms
possible, not to issue the draft opinion in its present form.
Discussion
Although numerous aspects of the draft opinion are extremely
troublesome, we are most concerned by the opinion�s proposed
reworking and expansion of the definition of �expenditures� in
FECA � 431(9) to include any communication that �promotes,
supports, attacks, or opposes� a candidate for federal office.
While the facts of the current request concern a nonconnected
political committee, by adopting this analysis the opinion can
be read to extend to independent issue groups as well. As
nonprofit corporations, the vast majority of us are flatly
prohibited by FECA � 441b from making any �contribution or
expenditure in connection with any election to any political
office.� Because we frequently refer to federal officeholders
and candidates in our communications with the general public,
and do so in a manner that may be highly critical of the
officeholders� positions on issues, the proposed redefinition of
�expenditures� would cause many of our currently lawful
communications to become unlawful corporate expenditures.
Just in the past few months, for example, the organizations
represented here have criticized Congress� and the
Administration�s policies and actions concerning such issues as
tax cuts for the rich, Medicare and prescription drugs, oil
exploration in the Arctic, nominations to the federal judiciary,
abuses of civil liberties in connection with the war on terror,
and numerous other issues. There is little doubt, we fear, that
these communications would be perceived both by our opponents,
who are constantly looking for ways to handcuff our efforts on
behalf of our causes, and, based on the reasoning of this draft,
by the Commission itself, as �opposing�, or even �attacking,�
President Bush and other federal officeholders. This is the
case even though these communications have not identified Mr.
Bush or any other officeholder as a candidate for re-election,
referred to the November 2004 election, or otherwise urged or
implied opposition to the President�s or any other individual�s
candidacy.
These communications have been aimed, not at these individuals
as candidates, but as current officeholders in an attempt to
influence legislation and public policy. Making it unlawful to
criticize the policies and actions of a sitting President or
Members of Congress except under the auspices of a registered
political committee is one of the most fundamental attacks on
the freedom of speech and freedom of association of American
citizens ever contemplated by a governmental agency.
The proposed definition of �expenditures� is nowhere to be found
in section 441b, even though it is the only provision of federal
election law governing contributions and expenditures by
nonprofit corporations such as those represented here. Under
the Supreme Court�s decisions in Buckley v. Valeo and
Massachusetts Citizens For Life v. FEC, section 441b was
authoritatively construed to prohibit corporate communications
that expressly advocate the election or defeat of clearly
identified candidates. We have relied on this long-standing
interpretation and have fully complied with it in all of our
educational and advocacy programs. In passing the Bipartisan
Campaign Reform Act of 2002 (BCRA), Congress restricted certain
limited broadcast communications, but it did nothing to modify
the express advocacy test as applied to communications in other
forms of media or even to broadcast communications disseminated
outside of BCRA�s 30/60 day black-out periods.
In redefining �expenditures,� the draft opinion relies on the
Supreme Court�s recent decision in McConnell v. FEC, that upheld
the constitutionality of BCRA�s provisions limiting, and in some
case prohibiting, political party committees from using
nonfederal funds to support communications that �promote,
support, attack or oppose� federal candidates. But, these
restrictions are contained in a separate provision of BCRA, 2
U.S.C. � 441i, that applies exclusively to political parties and
no other organization or entity. Most importantly, Congress did
not amend the provisions applicable to corporations in a similar
manner, nor did it revise the statutory definition of
�expenditures� as proposed in the draft opinion. The Commission
has no authority to enact a new standard for corporate
communications when Congress itself chose not to do so.
The extent to which the draft advisory opinion reaches far
beyond Congress� intent is also demonstrated by recent
legislation governing so-called �527" or �soft-money� political
organizations. Even prior to BCRA, Congress considered the
operation of these organizations and concluded that, in the
interest of greater public disclosure, they should register and
file reports with the Internal Revenue Service. See Pub.L.
106-230, 114 Stat. 477 (July 1, 2000), codified at I.R.C. ��
527(i)-(j). In 2002, shortly after it enacted BCRA, Congress
again considered the disclosure obligations for these
organizations and amended the registration and reporting
requirements to ease the burden on some of the organizations
covered by the 2000 amendments. See Pub.L. 107-276, 116 Stat.
1929 (Nov. 2, 2002). In neither instance, however, did Congress
outlaw 527 political organizations or even authorize the IRS to
curtail their activities. Furthermore, in ruling on the
constitutionality of BCRA, the Supreme Court expressly noted
that despite the Act�s limitations on the fundraising abilities
of political parties, �interest groups, however, remain free to
raise soft money to fund voter registration, GOTV activities,
mailings, and broadcast advertising.� McConnell v. FEC, 540
U.S. ________ at _________ [slip op. at 80]. This plain reading
of the statute is inconsistent with the approach of the proposed
advisory opinion. If the Commission adopts the ABC opinion as
drafted, it would be to appropriate to itself authority which
Congress has twice refused to provide.
The draft opinion is also inconsistent with the Commission�s own
rulemaking excluding section 501(c)(3) organizations from the
ban on electioneering communications. Several months ago, the
Commission recognized the need to limit the scope of BCRA�s
prohibition on 501(c)(3) organizations to protect advocacy
communications by these groups:
The Commission believes the purpose of BCRA is not served by
discouraging such charitable organizations from participating
in what the public considers highly desirable and beneficial
activity, simply to foreclose a theoretical threat from
organizations that has not been manifested, and which such
organizations, by their nature, do not do.
Final Rules and Explanation and Justification, �Electioneering
Communications,� 67 Fed. Reg. 65190, 65200 (Oct. 23, 2002)
Based on this draft opinion, it appears the Commission is
prepared to consider denying all 501(c) organizations the ability
to engage in this �highly desirable and beneficial activity.�
Even if this conclusion is not mandated by the terms of the
opinion itself, it is the logical conclusion based on the
reasoning set forth here.
Recent IRS guidance, in stark contrast to the position set
forth in the draft opinion, confirms that 501(c) organizations
are permitted to continue their advocacy activities, including
attempts to influence legislative and administrative actions,
throughout an election year. See Rev. Rul. 2004-6. These
communications may in some cases oppose the position of an
officeholder, who is also a candidate, in a manner that could
be deemed, under the broad language of the General Counsel�s
draft, to �support� or �attack� a candidate for federal office.
Nevertheless, the IRS ruled that such communications, under
the circumstances described in the ruling, are consistent with
the exempt purposes of a 501(c) organization and would not
subject them to tax or jeopardize their exempt status.
While we have focused on the impact of the draft opinion on
nonprofit organizations� educational and advocacy activities, we
are also concerned about how the opinion would handcuff our
ability to undertake voter participation activities such as
voter registration and get-out-the-vote, especially among
minority and other under-represented communities. In response
to question 8 of the opinion, the draft proposes that voter
registration and GOTV public communications that do not
expressly advocate, but �promote, support, attack or oppose� a
federal candidate, must be paid entirely with federally
permissible funds. Therefore, a nonprofit organization that
informs the public that President Bush and his Administration
has permitted corporations to increase harmful mercury emissions
and encourages individuals to register to vote would be required
to pay for this activity with federal funds. The regulations at
section 114.4 state only that voter registration conducted by a
corporation must not contain express advocacy or be coordinated
with a candidate or political party. The Commission has no
authority to broaden the restriction placed on these voter
participation activities.
We would like to address two other aspects of the draft opinion,
which cause equally deep concerns. First, the draft opinion
states that any fundraising communications that �support,
promote, attack or oppose� a federal candidate must be paid for
with federally permissible funds and may only raise funds
subject to the federal source and contribution limits. Unlike
other portions of the opinion, this language is not even
arguably limited to the nonconnected PAC making this request but
applies to any solicitation. Thus, it appears that a
fundraising letter from our organizations that appeals for
contributions to �fight against President Bush�s budget cuts
that threaten to undermine effective international family
planning� would be subject to this requirement. The effect of
such a conclusion is staggering. In addition to soliciting
contributions, fundraising communications provide another
critical avenue for reinforcing and generating public support
for our advocacy messages. We, and other nonprofit
organizations like us, would be required to choose to forgo
either the messages that inform our supporters about the public
policy debate or the funds that are vital to our existence.
There is no legal basis for imposing this restraint on the
broader nonprofit community.
Finally, the draft opinion proposes to extend the prohibition
on foreign national contributions to any organizations that
engage in voter registration, get-out-the-vote and other
activities in connection with a federal, state or local
election for public office as well as ballot measures. Many of
our 501(c) organizations conduct these activities. For some of
us, these activities comprise a major part of our program;
others engage in these activities only as the need arises
related to a specific policy objective or program. Our ability
to continue to engage in these activities would be threatened
if we were required to screen all of our contributions to
determine whether or not they were made by a foreign national
as defined under the FECA. The Commission, even in its own
rulemakings on foreign national contributions, has never
suggested that there is a need to extend the coverage of this
provision to all nonprofit organizations that conduct voter
participation activities. Such an intrusion would have a
severe impact on these nonpartisan activities that are vital to
fostering civic participation.
Conclusion
This draft opinion poses an unprecedented threat to the advocacy
and educational activities of the undersigned organizations as
well as many organizations that are not represented. We
respectfully urge the Commission to reject this draft in its
current form.
Respectfully submitted,
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