FEC Action May Have Impact on Nonprofit Advocacy; Nonprofit Leadership Organizations Join in Common Message

2/13/2004

From: Rick Cohen of the National Committee for Responsive Philanthropy, 202-387-9177, ext. 13, or rick@ncrp.org; or Kay Guinane of OMB Watch, 202-234-8494 or guinanek@ombwatch.org

WASHINGTON, Feb. 13 -- Four national nonprofit organizations -- Charity Lobbying in the Public Interest (CLPI), the National Committee for Responsive Philanthropy (NCRP), the National Council of Nonprofit Associations (NCNA), and OMB Watch - have joined to express their common concern about a draft advisory opinion (AO number 2003-37) of the Federal Election Commission (FEC) issued on Jan. 29, 2004 at the request of a political committee calling itself Americans for a Better Country that is organized to support Republican candidates for office.

The FEC will soon rule on the draft advisory opinion that would greatly increase regulation of what nonprofit 527 political committees can do and may lead to similar restrictions on other nonprofit organizations. The draft opinion would sharply restrict the ability of political committees to speak out on public policy matters in any ways that seem to "promote, support, attack, or oppose" a candidate, even if the effort is not related to an election. The FEC was originally scheduled to consider the draft ruling on February 5, but a flood of comments forced the Commission to delay its ruling until February 18th. If the draft is approved, the ruling will apply immediately to political committees, but many FEC observers are concerned that it is so expansive that it may eventually impose similar restrictions on 501(c)(3) and 501(c)(4) organizations. If that were to happen, it could undermine the existing rights of charities to speak on public policy matters, lobby within limits, and undertake nonpartisan voter engagement activities (such as voter registration efforts).

The key to this draft AO is that it expands the definition of electioneering "expenditures" to include spending for any activity that "promotes, supports, attacks, or opposes" a federal candidate. This seems to include any criticism or support of a public official who happens to be running for federal office, even if the election is not mentioned or the official is not identified as a candidate.

The AO explains its definition of "electioneering" in a manner that covers virtually any type of policy discussion that refers to a federal candidate. For example, criticism of President Bush's recent budget or support for his actions on the war against terrorism would be construed as promoting, supporting, attacking, or opposing presidential candidate George W. Bush, even with no mention of candidacy, voting, or elections.

-- Fundraising appeals - A fundraising pitch that touts the organization's efforts opposing the Bush administration's environmental positions or takes credit for the organization's successful efforts to draw administration attention to childcare issues could be "expenditures" because President Bush is a candidate for re-election.

-- Policy advocacy - If an email were sent describing the actions of a member of Congress to limit nonprofit advocacy, it could be construed as an "expenditure" if that member of Congress were a candidate for re-election. So could an anti-war rally or a march for women's rights if the policies of the President are praised or criticized.

-- Educational materials - Information in printed materials, on websites or elsewhere that tends to cast federal elected officials in a favorable or unfavorable light could be "expenditures". Thus, a website that lists the political contributions candidates have received from particular industries or a study examining the increase in unemployment during a particular administration could be "expenditures".

The restrictions would apply not just to commentary on incumbents in Congress or the White House but also to others who are running for federal office, including potentially state or local officials, business leaders, and others, thus affecting advocacy at the state or local level.

CLPI, NCRP, NCNA, and OMB Watch are not calling for any immediate action at this time since a number of letters from nonprofit leaders have already gone to the FEC and the Commissioners appear to be aware of these concerns. However, we are using this occasion to begin an education process preceding potentially additional actions in March as the FEC begins a rulemaking process that might have implications for nonprofit advocacy. Further information about this issue is available at http://www.nonprofitadvocacy.org, a Web site that the four groups have created that is dedicated to this issue.

Founded in 1976, the National Committee for Responsive Philanthropy is dedicated to helping the philanthropic community advance the traditional values of social and economic justice for all Americans. Committed to helping funders more effectively serve the most disadvantaged Americans, NCRP is a national watchdog, research and advocacy organization that promotes public accountability and accessibility among foundations, corporate grantmakers, individual donors and workplace giving programs. For more information on NCRP or to join, please visit http://www.ncrp.org or call 202-387-9177.