Electioneering law stifles nonprofits’ speech

By Tim Mooney

A showdown is looming before the U.S. Supreme Court – one pitting the advocacy rights of nonprofits against a law that may sacrifice some of those rights in the name of campaign finance reform.

The case of Wisconsin Right to Life v. Federal Election Commission, which will be argued in January, may determine when, where and how nonprofits can advertise about issues important to them.

Last year, Wisconsin Right to Life, a 501(c)(4) nonprofit corporation, produced a series of television ads urging the general public to contact Senators Kohl and Feingold and ask them to reject using the filibuster as a tool to block confirmation of conservative judges to the Court of Appeals.

Because Sen. Feingold was a candidate for reelection, the otherwise legitimate grassroots lobbying ads were illegal “electioneering communications” under a relatively new provision of federal election law.  Congress created this restriction as a part of the Bipartisan Campaign Reform Act of 2002.

It prohibits the use of corporate money to pay for advertisements that clearly identify a federal candidate and are broadcast 30 days before a primary or convention or 60 days before a general election.

Wisconsin Right to Life challenged this law by asking a district court to declare the ban an unconstitutional infringement of free speech as applied to its grassroots lobbying ads.

The key issue in the case is whether the electioneering communications provision goes too far in restricting the ability of nonprofit corporations to conduct legitimate issue advocacy over the airwaves within the law’s blackout periods.

The 30- and 60-day windows are typically periods of intense legislative activity.

Congress considered bills, for example, on welfare reform, tort reform, defense appropriations and even a constitutional amendment on marriage during a period within 60 days of the 2004 presidential election.

Each Congressional vote was over an important domestic policy question, but the electioneering-communications provision of the 2002 law limited nonprofit corporations’ access to an effective grassroots lobbying tool — broadcast advertisements that specifically ask the public to contact their representatives about a legislative issue.

The electioneering communications provisions stifle the free speech rights of nonprofits.

The law is intended to end the corruptive influence of big money on government, but it does so with a blunt tool that captures communications that have nothing to do with influencing the outcome of elections.

The Supreme Court has the opportunity to declare this application of the law unconstitutional.

If it does not, many nonprofits will be forced to choose between potentially less effective avenues for grassroots lobbying or sitting out the legislative discussion altogether.

Most observers predict the court will be closely divided on the ultimate outcome of this showdown.

In the meantime, an important venue for nonprofit advocacy hangs in the balance.

Tim Mooney is senior counsel for the Alliance for Justice in Washington, D.C.

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