Amicus Curiae Brief — Wisconsin Right to Life, Inc. v. Federal Election Comm'n

FILED

No. 04-1581 NOV 14 a

IN THE SETHE CLERK

Supreme Court of the United States

WISCONSIN RIGHT TO LIFE,

Appellant,

Vv.

FEDERAL ELECTION COMMISSION,

Appellee.

On Appeal from the

United States District Ce=urt

for the District of Columbia

BRIEF OF A COALITION OF PUBLIC CHARITIES,

AS AMICI CURIAE tN SUPPORT OF APPELLANT

ROBERT F. BAUER

Counsel of Record

KARL J. SANDSTROM

EZRA W. REESE

PERKINS Cole LLP

607 Fourteenth Street, N.W.

Washington, D.C. 20005

(202) 628-6600

Counsel for Amici Curiae

November 14, 2005

WiLSON-EPES PRINTING Co., INC. — (202) 789-0086 -— WasninaTon, D.C. 20001

o> ~

TABLE OF AUTHORITIES

INTEREST OF THE AMICI] CURIAE

A. OMB Watch ,

InGependent SeCtOP .....:<.cssccccccesesesscsscosesesees

Independence Institute ..................cccscceeeeeees

SUMMARY OF ARGUMENT

ARGUMENT

B.

C.

B.

TABLE OF CONTENTS

RETR SIeS aRT OD

The Electioneering Communication

Restrictions Uniquely Burden Section

501(c)(3) OrgamizationS..............:.ccccceeeeeees

1. The Electioneering Communi-

cation Restrictions Are Broad....

2. Section 501(c\(3) Organiza-

- tions Cannot Comply with the

Restrictions by Speaking

Through Separate Segregated

The Justifications that Led Congress to

Pass the Electioneering Communication

Restrictions, and This Court to Uphold

Them, Do Not Apply to Section

501(c)(3) Organizations. ..................cceeeeeeees

SPEEA EEE EEE HEHEHE ESET EEEEES ERE EEEES

1]

11

14

15

il

TABLE OF CONTENTS—Continued

1. Section SOl(c)(3) organiza-

tions cannot intervene in

2. The legitimate lobbying

efforts of section 501(c)(3)

organizations pose no risk of

corruption or evasion .............0.. 17

3. Legitimate lobbying efforts

are an important part of a

charitable mission ..................0++. 19

D. The Electioneering Communication

Restrictions Cannot Constitutionally Be

Applied to Legitimate 501(c)(3)

E. Public Charities Must Have Flexibility

to Conduct Their Grassroots Lobbying

Te crecpicicernasmtinipinitinnaienmninaieion 21

1. The Constitution commands

more space for charitable

grassroots activity than the

law on its face would allow or

than the government concedes... 21

2. Section S01(c)(3) Organiza-

tions Should Be Permitted to

Use General Funds..................... 23

aD cecnicenscasesussnivsinenptnsnewnemnmensntesnnnncennanaistitte 24

ill

TABLE OF AUTHORITIES

CASES

Allied Tube & Conduit Corp. v. Indian

Head, Inc., 486 U.S. 492 (1988) ......:..cccccsecesseeseeees

Austin v. Michigan Chamber Of

Commerce, 494 U.S. 652 (1990).........cccccccccessseeeeeees

Branch Ministries v. Rossotti, 211 F.3d

I a

Buckley v. Valeo, 424 U.S. 1 (1976) .........cccccceesseceseeees

Cal. Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508 (1972).........cccscscceceeseeseenee

Christian Echoes Ministries, Inc. v.

United States, 470 F.2d 849 (10th

Cir. 1972), cert. denied, 414 US.

anal iciciigetsiiivesiciiiliahicnitintliadiniasispiphaianiititgnasanasicidens

City Of Columbia v. Omni Outdoor

Adver., Inc., 499 U.S. 365 (1991) ........cccsecsseceeeseees

FEC v. Massachusetts Citizens For

eR ee

First Nat'l Bank Of Boston v. Bellotti,

Se s. He ee ichccenbiitinshiianinihcisipninsinabiinmbinaaibtaion

Mcconnell v. FEC, 540 U.S. 93 (2003)..............:ceceeeees

McDonald v. Smith, 472 U.S. 479

ities chitnceiiiincieaitdaiaialnenbieaaitartitin

iv

TABLE OF AUTHORITIES—Continued

Page

New York Times Co. v. Sullivan, 376

SS SE Ue cincsicintenthitiniapiniabetiaipaaiitantanianadioniaietiele i)

Or. Natural Res. Council v. Mohla,

ot FL} | | Sm reneoen 10

Prof'l Real Estate Developers, Inc. v.

Columbia Pictures Indus., Inc., 508

Ses Se ee cinsiitatitinadiiinin tiie arid, 22

Shays v. FEC, 337 F. Supp. 2d 28

SPU) AN xcciiniinasiliisiaieitabeeieniabandiciiatianidihiabiaiinas 11, 12, 21

Shays v. FEC, 414 F.3d 76 (D.C. Cir.

STD cnieiocectieniisciruniatiaaiinaiaiaabdinaiminiadiintieatataliciiaiatie inthe 11

United States v. Cruikshank, 92 U.S.

Pe Cre ccccesnwenicininciinissiisiiniiibiaiauliiilicisitatiiaiaal aia 9

CONSTITUTIONS & STATUTES

oa CIE. SIE, & cccinccvinsincvtcnesinnibittenininiansiiiaitiaisaas )

Bs a Pcctictevietiiieipiameiadl hiisintieiis 11

BI. BD ceevsccsticcessonesiststescersiaitteiieeniatiatiiinbieiapiiieasente 18

BB ec Oe SM icccinineitntninicitsitliieciecieninicaiiiaaataiininldaaiieiaioaes 10

Bipartisan Campaign Reform Act of

2002, Pub. L. No. 107-155, 166

REE, GR, DU cccncsensiscisinicmensissiniseciieisibsitetemminniainiedsasiaatamedin 7

v

TABLE OF AUTHORITIES—Continued

Page

Se it ti te ecitcnetierrependsnnnateccsnemnentebanatocsseqsneemnancotneasiee 15

STITT TTT cnitdiahintecsmnenstenteneemenipainenmntsensmmmmeneeees 16, 17

Se ai cticrecciansipantutcuesenpedmeperencennianntenscsntceminene 17

SEe TUE El cneiicentantenercndsatnenncenptsnsecnatecsnetpennianmnenseeseess 16

Ea eee ae ee ee 14, 15, 16

Be it riaditacdiiininincnncaasenennccscbincneienmmenseiemenmmenerass 15

ALASKA STAT. § 15.13.400(5) ....c.ccccssscecsessesssessesssessees 12

COLO. CONST. ART. XXVIII, § 2(7).......ccccccceseeceeeerereees 12

SEE 12

ET CUD ccctctecnsensnsncenentcesnenscesemantusensseets 12

IDAHO CODE ANN. § 67-6602(f) .....cc.ccceccoccceccecesesseeenes 12

Bie NS Me UUU ie SOP cecacoccsnscacssepescscenscsscsccnssess 12

RE ene 12

WASH. REV. CODE § 42.17.020(20) ............cceceeeeeceeeeees 12

EET a ae 12

GUAM CODE ANN. tit. 3, § 19D E20 oo... cece ceeeeeeeeeeeee 12

vi

TABLE OF AUTHORITIES—Continued

REGULATIONS

BS Cre B Se cenensssmemesnantntnimnmnnensess

BB Ge © BRIA cccnsccsessscenenemscssnsnserntestssnininiecantsnens

pS aT ee

ek Oe ID cctunteterenctiinniusisenninctiigtiinesl

OTHER AUTHORITIES

E. Kingsley & J. Pomeranz, A Crash at

the Crossroads: Tax and Campaign

Finance Laws Collide in Regulation

of Political Activities of Tax-Exempt

Organizations, 31 WM. MITCHELL

Be SE SP Ga rccciancessvcasnamisecansimmmammaveienenietapees

Electioneering Communications, 67

Fed. Reg. 65,190 (Oct. 23, 2002)...........:csccessessereneees

GARY W. SELNOW, ELECTRONIC

WHISTLE-SToPS: THE IMPACT OF

THE INTERNET ON AMERICAN

FD Corr recersanrecresetnentensgneemnnemeneme

J.E. Kindell & J.F. Reilly, Election

Year Issues, EXEMPT

ORGANIZATIONS CONTINUING

PROFESSIONAL EDUCATION

TECHNICAL INSTRUCTION PROGRAM

A are ac RF es

vil

TABLE OF AUTHORITIES—Continued

Page

2 STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED

rere 10

1 BLACKSTONE'S COMMENTARIES (St.

George Tucker ed., Philadelphia,

Te 9

INTEREST OF THE AMICI CURIAE

Amici' are thirty-five public charities, tax-exempt under

section 501(c)(3) of the Internal Revenue Code. Individual

organizations' Statements of Interest are presented below.

A. OMB Watch

OMB Watch is the operating name of Focus Project, Inc.,

a nonprofit corporation organized under section 501(c)(3) of

the Internal Revenue Code. Its goal is to promote

government accountability and citizen participation in public

issues. It is guided by the belief that improving access to

governmental decision-makers and energizing citizen

participation will lead to a more just, equitable and

accountable government, and a stronger society.

OMB Watch’s primary focus areas are the federal budget;

nonprofit advocacy; government transparency and

accountability; and legislation and regulations impacting

economic justice, health, safety, and the environment. OMB

Watch has a 17-person staff and a $1.7 million annual

budget. On this modest budget it has had a significant

impact. Over the years, it has played a leadership role on

important federal policies, including regulatory reform

measures, balanced budget constitutional amendments, and

the repeal of the estate tax. Roughly ninety percent of its

revenue comes from foundations, often in the form of project

grants.

' This brief is filed with the consent of all parties, as indicated

by letters of consent filed with the Court. No counsel for a party

authored this brief, in whole or in part. No person or entity other

than the amici curiae, its members, or its counsel made a monetary

contribution to the preparation or submission of this brief.

2

In order to be effective, OMB Watch must react quickly

and flexibly to emerging policy debates. Changing

congressional goals require it to shift from planned agenda

items to unplanned ones. It often works through coalitions,

and it places a high value on bridging the gap between

Washington and the grassroots level, and energizing citizens

at the community level. The coalitions OMB Watch leads

connect it to scores of umbrella groups and national

membership associations. They, in turn, distribute OMB

Watch's materials to thousands of their respective

constituents around the country.

When choosing how it will communicate, OMB Watch

along with its coalition partners must select means of

communication that are suitable to the task. For example, if

the House of Representatives or the Senate unexpectedly

schedules a vote of importance, time does not always allow

for a direct mail or telephone campaign. Broadcast

advertising may be the only way to influence the debate.

OMB Watch and its coalition partners of nonprofit

organizations take advantage of free and paid media efforts to

spread their messages. If they cannot afford to pay for

television or radio advertisements, they rely on the

broadcasters’ willingness to provide unpaid access. Access is

provided consistent with the broadcasters’ legal obligation to

operate in the public interest. OMB Watch and its coalition

partners also hold press conferences or other informational

events, some of which are covered by C-SPAN or local

public interest channels.

As a public charity, OMB Watch does not and cannot use

these occasions to intervene in political campaigns.

Nevertheless, in the course of a typical broadcast there will

be regular references to clearly identified officeholders who

may also be candidates for federal office. Indeed, it is

3

impossible for OMB Watch to avoid referring to federal

candidates, given that the key decision-makers on the issues

it seeks to affect are almost always qualified as candidates

under federal campaign finance law. Almost invariably, the

sponsor of the legislation discussed or the executive who has

initiated the policy debate is also a federal candidate.

Because OMB Watch is a public charity, it does not have

the option of speaking through an affiliated political

committee. As a result, due to the electioneering

communication restrictions, it has only two choices: stay

silent or risk prosecution.

B. Independent Sector

Independent Sector ("IS"), a nonprofit corporation

organized under section 501(c)3) of the Internal Revenue

Code, is the leadership forum for charities, foundations, and

corporate giving programs committed to advancing the

common good in America and around the world. Its

nonpartisan coalition leads, strengthens, and mobilizes the

charitable community in order to fulfill its vision of a just and

inclusive society of active citizens, vibrant communities,

effective institutions, and healthy democracy. Independent

Sector's membership of 500 organizations collectively

represents tens of thousands of charitable groups serving _

every cause in every region of the country, as well as

millions of donors and volunteers.

IS serves as the premier meeting ground for the leaders of

America’s charitable and philanthropic sector. Since its

founding in 1980, IS has sponsored ground-breaking

research; fought for public policies that support a dynamic,

independent sector; and created resources so staff, boards,

and volunteers can improve their organizations and better

serve their communities. IS fulfills its mission by convening

——s

4

sector leaders to work together on key issues; promoting

policies that enable the charitable community to engage with

public officials on a nonpartisan basis; supporting the

development and dissemination of strategies to strengthen

volunteering, voting, giving, and other forms of citizen

engagement; encouraging the sector to meet the highest

standards of ethical practice and effectiveness; and serving as

the voice of the charitable community to the media,

government, business, and _ international voluntary

communities.

IS is currently engaged in a broad range of public policy

issues ranging from federal and state regulation of charitable

organizations, federal tax and spending policies, federal tax

incentives for charitable giving, and protecting the advocacy

rights of nonprofit organizations. The majority of its

members are 501(c)(3) organizations that may not participate

in, Or intervene in any political campaign on behalf of (or in

opposition to) any candidate for public office, but these

organizations frequently engage in advocacy efforts to inform

public policy debates on issues that affect their constituents’

and their ability to fulfill their charitable purposes.

These advocacy efforts at times include communications

with elected officials in their current capacity as

representatives of the people, whether or not they are, at the

same time, candidates for federal office. Organizations

cannot predict or control the timing of when an issue will be

considered by public officials. Some of IS's member

organizations, for example, are concerned about the

possibility of estate tax repeal because of the negative effect

that would have on charitable giving. Their ability to

encourage the public to contact their elected officials about a

pending vote on the estate tax would be curtailed if the vote

was scheduled during an election period. IS members may

find it necessary to run ads asking a local official to keep a

5

particular shelter open, even though the official is also a

candidate for federal office. IS members have called on the

public to contact their congressional representatives about

pending votes that affect the funding and eligibility

requirements for specific government programs related to

charitable purposes ranging from human services to health to

the arts.

OF Independence Institute _

The Independence Institute is a 501(c)(3) educational

organization, fuunded in 1985. Located in Colorado, it is a

state-based think tank. The Independence Institute is

established upon the eternal truths of the Declaration of

Independence. The Institute is a non-partisan, non-profit

public policy research organization dedicated to providing

timely information to concerned citizens, government

officials, and public opinion leaders. The Independence

Institute is involved in local, state, national, and international

issues.

Much of the Institute’s work is carried out through several

Centers which are part of the Institute: the Education Policy

Center, the Health Care Policy Center, the Second

Amendment Project, the Center for the American Dream, the

Campus Accountability Project, and the Fiscal Policy Center.

The work of all these Centers often intersects with policy

questions being debated by Congress.

The Independence Institute communicates with the public

in a very broad variety of ways: through newspaper articles,

television and radio programs, books, law review articles,

presentations at scholarly conferences, legislative testimony,

e-mail, podcasts, long monographs, and shorter research

papers. For many years, the Independence Institute has also

communicated with the public through radio advertising, one

6

of the communications media which is censored by the

speech restrictions enacted by Congress in 2002.

Radio advertising is a very important part of the

Independence Institute’s educational mission. The Institute’s

other means of communications (such as research papers and

newspaper op-eds) are certainly important, but they reach

only a small fraction of the public — a relatively elite fraction

that already has a high pre-existing interest in policy

questions. In contrast, radio advertising allows the Institute

to communicate with a much broader group of the public.

Such advertising allows the Institute to share its ideas with

hundreds of thousands or millions of people whom, as a

practical matter, the Institute has no other capacity to reach.

Significantly, radio advertising allows the Institute to present

its ideas in their purest form — without the limitations (and,

sometimes, distortions) of those ideas being rephrased or

selectively quoted by a reporter.

The speech restrictions imposed in 2002 chill the

Independence Institute’s ability to communicate with the

public about important federal questions during the thirty and

sixty days censorship periods. The Independence Institute

has no desire to advocate for the election of federal

candidates (or, for that matter, state and local candidates). In

twenty years, the Independence Institute has never done so.

The Independence Institute has a perfect record of

compliance with all federal, state, and local laws against

candidate advocacy by non-profit organizations. Indeed,

because the Independence Institute is founded to advance

particular ideas — namely the eternal truths of the Declaration

of Independence, as applied to contemporary concerns — we

will often praise a particular Congressperson one week (such

as for voting against pork-barrel spending), and criticize the

7

same Congressperson the next week (such as for supporting

restrictions on a Bill of Rights freedom).?

SUMMARY OF ARGUMENT

The "electioneering communication" restrictions of the

Bipartisan Campaign Reform Act of 2002 ("BCRA"), Pub. L.

No. 107-155, 166 Stat. 81, 91 (codified at 2 U.S.C.

§ 441b(c)), cannot constitutionally be applied to 501(c)(3)

charities like amici. Sections 203 and 204 of BCRA were

designed to prevent "sham issue ads." Yet amici are, by

definition, nonpartisan and nonpolitical organizations. They

cannot intervene in a political campaign without violating the

law.

Moreover, unlike the corporations whose sham ads

Congress sought to curb, charities like amici do not enjoy the

alternative of establishing federally-registered political

committees ("PACs") to engage in political spending. The

availability of a PAC spending option was a critical

consideration for this Court in upholding the electioneering

communication restrictions in McConnell v. FEC, 540 U.S.

93, 206 (2003), just as it was when the Court upheld the

statute under challenge in Austin v. Michigan Chamber of

Commerce, 494 U.S. 652, 670 (1990). Yet this option does

not exist for charities like amici. The district court suggests

that the severity of the injury to Appellant's free speech

interest is allayed because it can speak freely through its

separate segregated political fund. Public charities find no

comfort in this suggestion; their nonpartisan voices are

targeted for silence.

2? Additional Interests of Amici are included in the Appendix to

this brief.

8

Finally, section 501(c)(3) organizations, unlike for-profit

corporations, are not in a position to use vast resources

accumulated in the commercial marketplace to dominate the

political debate. Quite to the contrary, section 501(c)(3)

organizations often serve as a counterweight to the immense

resources that corporations expend to influence government

policy.

Neither of the justifications relied upon by the Court in

McConnell to uphold the electioneering communication

restrictions is present here. There is no record to support a

claim that the activities of these organizations have led to

corruption of government officials. Nor is there any

evidence that the grassroots lobbying efforts of public

charities distort the political process. Public charities have

not been, and are not plausibly considered, vehicles for

corporate circumvention of our election laws. The

application of the electioneering communication restrictions

to the legitimate grassroots lobbying of public charities is

unsupportable.

Rather than corrupting or distorting our democracy, public

charities enhance it. They bring voices to the deliberations of

government that otherwise might not be heard. If their

communications pose a threat to the integrity of our

government, it has not been demonstrated. Indeed, the very

transparency and accountability of governmental processes

depend on untrammeled speech on public policy by

organizations like amici.

The First Amendment guarantees their right to speak,

subject to the rules that already exist to prohibit and penalize

political intervention by them. In considering whether

Appellant is entitled to a grassroots lobbying exception, this

Court should ensure that any legal restrictions on such

lobbying cannot be applied in a manner that would deny

9

public charities their First Amendment right to petition their

government.

ARGUMENT

A. Nonprofit Lobbying Is Protected by the First

Amendment

"Congress shall make no law respecting . . . the right of

the people . . . to petition the Government for a redress of

grievances." U.S. CONST. amend. I. This right is "implicit in

[t]he very idea of government, republican in form.”

McDonald v. Smith, 472 U.S. 479, 482 (1985) (quoting

United States v. Cruikshank, 92 U.S. 542, 552 (1876)). "For

a representative democracy ceases to exist the moment that

the public functionaries are by any means absolved from their

responsibility to their constituents; and this happens

whenever the constituent can be restrained in any manner

from speaking, writing, or publishing his opinions upon any

public measure, or upon the conduct of those who may advise

or execute it." 1 BLACKSTONE'S COMMENTARIES editor's app.

at 297 (St. George Tucker ed., Philadelphia, Birch & Small

1803), quoted in New York Times Co. v. Sullivan, 376 U.S.

254, 297 (1964) (Goldberg, J., concurring in result).

Nowhere is the right to petition more deeply implicated

then when a representative body insulates itself from the

opinions of those it represents. Measures that have the effect

of silencing the public voice precisely at the time legislation

is being considered are, as Blackstone suggests, a threat to

the very concept of popular sovereignty. If the right to

petition is to have meaning, it needs to find expression on

those occasions.

This Court has consistently held that the nght to petition

applies equally to all branches of government. See Cal.

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510

10

(1972). This Court has recognized that "the First

Amendment protects the right of corporations to petition

legislative and administrative bodies." First Nat'l Bank of

Boston v. Bellotti, 435 U.S. 765, 791 (1978). The First

Amendment protection of lobbying is even more powerful

when the goals sought are political rather than economic. See

Or. Natural Res. Council v. Mohla, 944 F.2d 531, 535 n.3

(9th Cir. 1991).

Grassroots lobbying efforts conducted by nonprofit

corporations fall squarely into the protection offered by the

right to petition. The lobbying campaigns restricted by 2

U.S.C. § 441b(c) are speech campaigns directed at legislative

and executive officials and designed to influence the shape

and direction of public policy as specific governmental

measures or actions are considered. The lobbying causes

championed by section 501(c)(3) organizations are used to

bring light to otherwise little-known issues, and to mobilize

the public on issues of national public importance. Lobbying

is at the heart of the activity protected by the First

Amendment.’ The right to petition is in essence a right to be

heard and it is that right that amici seeks to preserve.

3 "[The right of petition] would seem unnecessary to be

expressly provided for in a republican government, since . . . [i]t is

impossible that it could be practically denied until the spirit of

liberty had wholly disappeared, and the people had become so

servile and debased as to be unfit to exercise any of the privileges

of freemen." 2 STORY, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED STATES 645 (Sth ed. 1891).

1]

B. The Electioneering Communication

Restrictions Uniquely Burden Section 501(c)(3)

Organizations

1. The Electioneering Communication

Restrictions Are Broad

The electioneering communication restrictions cut a broad

swath through otherwise permissible lobbying by section

501(c)(3) organizations. In practice, they criminalize ail

broadcast references to a "clearly identified candidate," even

if the context is not electoral. See 2 U.S.C. § 434(f)(3)(i).

The Federal Election Commission ("FEC") regulations make

clear that “clearly identified" includes such innocuous

references as "your Congressman." ll C.F.R.

§ 100.29(b)(2). Indeed, even a reference to the popular name

of legislation that includes a candidate's name, such as

"McCain-Feingold," would count as a clear reference. See

Electioneering Communications, 67 Fed. Reg. 65,190,

65,202 (Oct. 23, 2002).

The FEC limited the reach of the ban to broadcast

communications for a fee. See 11 C.F.R. § 100.29(b)(3)(i).

This limitation was challenged, and the United States District

Court for the District of Columbia found the exemption to be

inconsistent with the plain meaning of the statute. See Shays

v. FEC, 337 F. Supp. 2d 28, 129 (D.D.C. 2004). The FEC

appealed, and the United States Court of Appeals for the

District of Columbia Circuit affirmed the district court's

decision. Shays v. FEC, 414 F.3d 76, 109 (D.C. Cir. 2005).

As a consequence, any reference made to a candidate in a

public service announcement or over a public access channel

is now subject to the electioneering communication

restrictions. The only remaining exemption is for references

made by a qualified press entity during the course of a news

story, commentary or editorial. Nine states have gone even

12

further than the congressional prohibition and created

electioneering communication laws that reach forms of

communications other than the broadcast medium.‘

Because section 50l(c)(3) organizations pose no

constitutionally cognizable threat to the governmental

interests targeted by the electioneering communication

restrictions, the FEC originally granted them a blanket

exemption from the rules. See 11 C.F.R. § 100.29(c)(6).

However, last year the United States District Court for the

District of Columbia found that this exception violated the

Administrative Procedures Act.’ See Shays, 337 F. Supp. 2d

at 127. The FEC did not appeal this portion of the district

court's decision and is proposing rules that would cover

communications by section 501(c)(3) organizations.

The holding of the district court in this case, coupled with

the developments in the Shays litigation, suggests that the

FEC has very little authority to protect 501(c)(3) activities.

4 See ALASKA STAT. § 15.13.400(5); COLO. CONST. ART.

XXVIII, § 2(7); FL. STAT. § 106.011(18); Hi. Cope R. § 11-207.6;

IDAHO CODE ANN. § 67-6602(f); 10 ILL. Comp. STAT. 5/9-1.14;

OKLA. STAT. tit. 74, § 257:1-1-2; WASH. REV. CODE

§ 42.17.020(20); W. VA. CODE § 3-8-1A(10); see also GUAM

CODE ANN. tit. 3, § 19112.1.

5 The District Court's decision puts the FEC in a difficult

position. Because the FEC may not provide a blanket exemption

for section 5Ol(c)(3) organizations and may only exempt

communications that do not promote, attack, support or oppose a

candidate, the FEC will need, for example, to examine the content

found on cable channels devoted to religious broadcasting. A

reference to a candidate in a religious program or a candidate's

appearance during a broadcasted service in the electioneering

blackout period would be covered by the ban.

13

The district court in this case said that Appellant's proposed

advertising “may fit the very type of activity McConnell

found Congress had a compelling interest in regulating."

(Mem. Op. 6.) Implicit in the district court's decision is the

conclusion that Appellant's proposed ad attacked Senator

Feingold and therefore could not be exempted. If Appellant's

ads, seemingly neutral in content, crossed the line, then it is

hard to imagine a 501(c)(3) lobbying ad that the FEC could

ever exempt. Unless the Court weighs in, the FEC will be

compelle’ to give the broadest reading to the statute. No

incorporated section 501l(c)\(3) organization could ever

confidently make an electioneering communication.®

The FEC's hands appear to have been judicially tied. The

agency is no longer able to give meaningful relief to section

501(c)(3) organizations. Under the decision of the court

below, it is poised to interpret the ban broadly to cover all

direct advertising and public service announcements offered

by section SO0Il(c)(3) organizations, however neutral in

content. And if the district court's characterization of

Appellant's ads is correct, the FEC will likely need to

examine the motives of the speaker before allowing an ad.

Thus, the FEC, even if it were disposed to do so, could not

grant the relief that Appellant seeks and amici support.

The district court held that the last remaining source of

relief — a constitutional as-applied challenge to the

electioneering communication restrictions — is no longer

® In fact, in rules recently proposed by the agency, the FEC is

considering, among other approaches, a requirement that any

501(c) grassroots lobbying avoid language that could be construed

to "promote, attack, support or oppose” a federal candidate. Under

the law, as under the proposed rules, there is no definition offered

for this term.

14

available. (Mem. Op. 4.) In so holding, it relied on

McConnell, which upheld “all applications of the primary

definition [of electioneering communications]." 540 U.S. at

190 n.73. This holding misstates McConnell, and leaves both

Appellant and amici in an unconstitutional bind. This Court

also held that "we assume that the interests that justify the

regulation of campaign speech might not apply to the

regulation of genuine issue ads." /d. at 206 n.88. If the

district court's decision is affirmed, this Court would be

foreclosing the ability to vindicate a right that this Court

suggests amici may well enjoy. To deny parties access to the

courts under those circumstances, when the very right at

stake is the right to petition the government, is an irony the

Constitution cannot indulge.

2. Section 501(c)(3) Organizations Cannot

Comply with the Restrictions by Speaking

Through Separate Segregated Funds

One of the rationales that this Court used to uphold 2

U.S.C. § 441b(c) is that corporations and unions could pay

for otherwise covered advertisements through their PACs.

See id. at 206. Yet section S0l(c)(3) organizations are

prohibited from establishing such PACs, because of their

inability to participate in partisan activity. See i.R.C.

§ 501(c)(3); see also J.E. Kindell & J.F. Reilly, Election Year

Issues, EXEMPT ORGANIZATIONS CONTINUING PROFESSIONAL

EDUCATION TECHNICAL INSTRUCTION PROGRAM 335, 344

(2002).

The effect is to single out section 501(c)(3) organizations

for silence. The irony could not be greater. Organizations

prohibited from partisan political intervention as a condition

of their tax status, and that have presented no evidence of

sponsoring "sham issue ads" are left with no access to the

airwaves during the thirty and sixty day “blackout periods.”

15

Meanwhile, the very corporations and unions that Congress

saw as evading the campaign finance laws remain able to

sponsor broadcast advertisements through their PACs. This

is constitutionally untenable.

C. The Justifications that Led Congress to Pass

the Electioneering Communication Restrictions,

and This Court to Uphold Them, Do Not Apply to

Section 501(c)(3) Organizations

1. Section 501(c)(3) organizations cannot

intervene in elections

Section 501(c)(3) organizations like amici must apply to

the Internal Revenue Service ("IRS") for approval of their

status. See I.R.C. § 508(a). In order to gain approval as a

section 501(c)(3) entity, and to have contributions be deemed

tax-deductible by the contributors, see id. § 170(a)(1), the

organization must prove to the IRS that it can meet the

organizational and operational limitations under section

501(c)(3). See generally Treas. Reg. § 1.501(c)(3)-1.

Though section 501(c)(3) organizations face a host of

statutory and regulatory restrictions on their behavior, two

are important for purposes of applying the electioneering

communication restrictions.

First, section 501(c)(3) charities must "not participate in,

or intervene in (including the publishing or distributing of

statements), any political campaign on behalf of (or in

opposition to) any candidate for public office.” [R.C.

§ 501(c)(3); see also id. § 170(c\(2)(D). This ban is absolute;

there is no de minimis or insubstantial amount of political

intervention that is permissible. Organizations that engage in

any political intervention at all risk their status under section

501(c)(3). Moreover, in 1987, Congress amended the

Internal Revenue Code to provide for fines against the

16

individuals in a section 501(c\(3) organization who approve

expenditures for political purposes. See id. § 4955.

The IRS defines “political intervention" broadly. The

term is not limited “> merely expressly advocating the

election or defeat of candidates, nor even to the promotion,

support, attack or opposition of candidates; instead, the IRS

examines the facts and circumstances of the activity at issue.

See, e.g., Branch Ministries v. Rossotti, 211 F.3d 137 (D.C.

Cir. 2000); Christian Echoes Ministries, Inc. v. United States,

470 F.2d 849 (10th Cir. 1972), cert. denied 414 U.S. 864

(1973). The context of the activity is weighed alongside the

activity itself; communications that would alone be

considered lobbying can become impermissible political

intervention if conducted in a context of partisanship. See E.

Kingsley & J. Pomeranz, A Crash at the Crossroads: Tax

and Campaign Finance Laws Collide in Regulation of

Political Activities of Tax-Exempt Organizations, 31 WM.

MITCHELL L. REV 55, 69 (2004).

Second, while section 501(c)(3) organizations can and do

engage in grassroots lobbying, they are limited in the extent

to which they may do so. “No substantial part" of the

activities of section 501(c)(3) organizations may be attempts

to influence legislation. I.R.C. § 501(c)(3). The amount of

permitted lobbying varies, depending on whether the

organization has elected to proceed under the expenditure

test, or whether it is subject to the default "substantial part"

test. See id. § S01(h); id. § 4911(c); Treas. Reg. § 1.501(h)-

l(a). Either way, a section 501(c)(3) organization cannot

devote a large portion of its activities to lobbying, including

both the direct lobbying of officeholders and indirect

17

"grassroots" lobbying.’ For organizations electing the

expenditure test, the IRS imposes fines for lobbying in excess

of the prescribed limits. See id § 4911. Violation of the

terms of either the substantial part test or the expenditure test

can lead to the revocation of an organization's tax-exempt

Status.

Thus, section 501l(c)(3) organizations cannot legally

function as vehicles to distort the political process, or to serve

as agents of officeholder corruption, even in the absence of

the electioneering communication restrictions. Public

charities are severely limited in even the amount of lobbying

they can conduct; and they are strictly forbidden to engage in

any political intervention.

2. The legitimate lobbying efforts of

section 501(c)(3) organizations pose no risk

of corruption or evasion

There are two potential justifications for the government ©

regulation of political speech: "corruption or the appearance

of corruption,” McConnell, 540 U.S. at 179; and "the

corrosive and distorting effects of immense aggregations of

wealth that are accumulated with the help of the corporate

form," see Austin, 494 U.S. at 660, quoted in McConnell, 54°

U.S. at 205. Neither of these justifications applies to bona

fide lobbying by section 501(c)(3) organizations.

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court found

that independent political expenditures do “not presently

appear to pose dangers of real or apparent corruption

comparable to those identified with large campaign

7 Private foundations are even more restricted; they cannot

engage in any lobbying activities at all. See I.R.C. § 4945(d)(1).

18

contributions." /d. at 46. Lobbying efforts pose even less of

a danger. Because of the Internal Revenue Code's

restrictions on political intervention, and because of the

Federal Election Campaign Act's restrictions on coordination,

see 2 U.S.C. § 44la(a)(7), a section 501(c)(3) organization

cannot distribute lobbying communications in conjunction

with candidates or political parties. No candidate or political

party may request or suggest the communication; may be

materially involved in the communication; may have a

substantial discussion with the sponsor regarding the

communication; or may use a common vendor or former

employee to coordinate the communication. See 11 C.F.R.

§ 109.21. The Buckley rationale is simply not implicated in

legitimate grassroots lobbying by public charities; such

groups lack the motive and opportunity to corrupt. If

unlimited independent spending by a political committee

does not pose sufficient risk of corruption to justify

regulation, then certainly the limited grassroots lobbying of a

public charity must provide less.

Nor is the Austin rationale implicated. Unlike for-profit

corporations, section 501(c)(3) organizations cannot

accumulate commercial wealth to dominate the political

debate. Their resources must be devoted to public purposes.

The idea that commercial corporations are likely to use

public charities to circumvent the electioneering

communication restrictions is the product of imagination, not

experience.

There is no evidence that genuine lobbying will serve as a

vehicle for the use of corporate funds to promote corporate

"political ideals." McConnell, 540 U.S. at 205. Unlike

“sham issue ads," which this Court found to be the

"functional equivalent" of express advocacy, legitimate

lobbying efforts are not “intended to influence the voters’

decisions." See id. at 206. There is no evidence that section

19

501(c)(3) organizations produce the “bogus issue

advertising" that was the focus of the electioneering

communication restrictions. See id. at 129. Indeed, the

evidence Congress compiled regarding "sham issue ads," on

which this Court relied heavily in upholding the

electioneering communication restrictions, gave no hint that

genuine charitable grassroots lobbying was a threat. See id.

at 126-32. Congress was concerned about the sorts of

advertisements that section 501(c)(3) organizations cannot

legally sponsor — those that mimicked the form and content

of lobbying advertisements, but were actually crafted to

intervene in elections by turning voters against candidates.

See id. at 129.

There was and remains good reason to believe that other

laws effectively deter section 501(c)(3) organizations from

engaging in sham issue advertising. The legislative record is

devoid of facts that would suggest a different conclusion.

Congress simply produced no evidence that grassroots

lobbying by public charities was a source of legislative

concern. Similarly, the FEC found no evidence during its

rulemaking that suggests sham issue ads sponsored by

501(c)(3) organizations are a problem. See 67 Fed. Reg. at

65,200.

3. Legitimate lobbying efforts are an

important part of a charitable mission

Seventy-eight percent of section 501(c)(3) organizations

participate in policy debates through grassroots lobbying,

according to a survey of over 1,700 section 501(c)(3)

organizations conducted by OMB Watch in 2002. While

some lobbying efforts are ongoing efforts, more often they

are deployed quickly to respond to unanticipated legislative

developments. These campaigns depend on speed and

20

timeliness. To require them to stop during the sixty days

before a general election would render them ineffective.

The blackout periods for electioneering communications

create an additional problem. Legislators and lobbyists can

easily take advantage of the blackout to enact legislation

hostile to nonprofit organizations' interests, knowing that the

nonprofit community will have difficulty mobilizing public

opposition. Underscoring this concern is the longstanding

practice of Congress of appending controversial riders to

appropriations bills that are considered in the sixty day period

before the general election.

D. The Electioneering Communication

Restrictions Cannot Constitutionally Be Applied

to Legitimate 501(c)(3) Lobbying

The electioneering communication restrictions cannot

constitutionally be applied to the legitimate grassroots

lobbying in which public charities may engage. In FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986),

this Court held that the corporate expenditure prohibition of 2

U.S.C. § 441b cannot be applied to certain nonprofit

corporations. It relied on the organizational structure of the

nonprofit corporation in that case, and found that its structure

"prevents such corporations from serving as conduits for the

type of direct spending that creates a threat to the political

marketplace." /d. at 264.

Just as the characteristics of an MCFL corporation keep

section 441b from being constitutionally applied to its

activities, the characteristics of a section 501(c)(3)

organization keep the electioneering communication

restrictions from being constitutionally applied to its

legitimate grassroots lobbying. The strict prohibition on

political intervention and the harsh limits on the amount of

21

lobbying — backed both by fines, and by the ultimate penalty

of tax-exempt revocation — make it impossible for section

501(c)(3) organizations to serve as_ conduits for

impermissible political expenditures. Moreover, an entity

cannot simply assert section 501{c)(3) status; the government

must affirmatively grant it after an arduous application

process, and can revoke it at any time.

It is essential for this Court to acknowledge this limit on

the scope of the electioneering communication restrictions.

The FEC's attempt to completely exempt section 501(c)(3)s

from the electioneering communication restrictions has now

been overturned on statutory grounds. See Shays, 337 F.

Supp. 2d at 127. If the law continues to be understood to

apply to 501(c)(3) lobbying, then charities will be singled out

for silence, while for-profit corporations, unions and even so-

called "527s" will enjoy opportunities to speak over the

airwaves during the thirty and sixty day windows.

E. Public Charities Must Have Flexibility to

Conduct Their Grassroots Lobbying Activities

Even in the absence of an absolute exception for all

grassroots lobbying by section 501(c)(3) organizations, the

Constitution compels ample space for these kinds of

communications. The First Amendment also forbids any

requirement that public charities use segregated individual

funds to speak during the electioneering communications

periods.

1. The Constitution commands more space

for charitable grassroots activity than the

law on its face would allow or than the

government concedes

There are times in which legitimate lobbying campaigns

detail the current, tentative stance of a legislator, or his or her

22

past record on an issue. Such details are sometimes

necessary to explain the immediacy of an issue to the public.®

Stripped of this detail, effective advocacy is reduced to a

whimper. Section 501(c)(3) organizations, given their unique

status, must have the flexibility, not afforded by the law on

its face or as read by the government, to use these techniques.

The Constitution requires that the law be read to permit

section 501l(c)(3) organizations to conduct activities

permitted under the right to petition, while it seeks to restrict .

the "sham issue ads" targeted by Congress and this Court in

McConnell. See 540 U.S. at 129-32.°

8 Indeed, only thirty-five percent of Americans can name their

member of Congress at all. GARY W. SELNOW, ELECTRONIC

WHISTLE-STOPS: THE IMPACT OF THE INTERNET ON AMERICAN

POLITICS (1998). Without the ability to name names and describe

legislators’ positions on issues, it is difficult, if not impossible, to

generate grassroots activity.

9 One example of a flexible approach to lobbying activity is

found in the Noerr-Pennington doctrine. Through this doctrine,

this Court has established parameters to determine whether or not a

lobbying effort is a sham. The question is whether the activities

are “not genuinely aimed at procuring favorable government

action” at all. Allied Tube & Conduit Corp. v. Indian Head, Inc.,

486 U.S. 492, 500 n.4 (1988). Lobbying activities are protected if

they are aimed at achieving "governmental action,” but not if their

goals are achieved only by “the lobbying process itself." City of

Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379 (1991).

Similar protections are extended to the filing of litigation, where

this Court has considered it important whether litigants "could

realistically expect success on the merits." Prof'l Real Estate

Developers, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60

(1993). Because the Noerr-Pennington test implicates the nght to

petition, and because amici are only requesting the ability to

conduct legitimate lobbying efforts, this test could serve as a guide

23 .

2. Section 501(c)(3) Organizations Should

Be Permitted to Use General Funds

Appellant has suggested that when carving out a

constitutional exception to the electioneering

communications restrictions, this Court could require that the

communications be paid for with wholly individual funds. In

so doing, the as-applied exception would be similar to that of

MCFL, 479 U.S. at 264, which applied only to social welfare

organizations that foreswore all corporate and labor union

contributions.

While this may be a necessary step to prevent corporate

political expenditures by most nonprofit corporations, it is

wholly unnecessary to require the same from _ section

501(c)(3) organizations, which are structurally unable to

serve as vehicles for corporate political activity. Because

section 501(c)(3) organizations are expressly forbidden to

engage in political activity, they cannot be used as conduits

for corporate political speech. Furthermore, because their

mission is by definition to support public and beneficial

causes as defined in the Internal Revenue Code and in IRS

regulations, any speech they make cannot have the effect of

magnifying corporate interests. In short, a requirement that

only individual funds be used may make sense as applied to a

nonprofit corporation that is permitted to engage in some

political activity, such as Appellant, but the same standard

need not apply to amici and to other public charities.

A requirement of this kind would impose a significant

administrative burden on section 501(c)(3) organizations.

Rather than assume this burden, many public charities will

choose not to air their views on matters of public concern or

when determining the extent of an as-applied exception to the

electioneering communication restrictions.

24

will self-censor what they say. This will likely be the case

for most small community-based public charities.'°

CONCLUSION

Amici urge this Court to consider the as-applied challenge

in this case and find in favor of Appellant, and we support

Appellant's right to conduct certain restricted lobbying

activities during the electioneering communication periods.

Yet the Court should also consider the special circumstances

presented by public charities like amici. Even though they

are barred from partisan political intervention, and present no

record or opportunity for corruption or evasion, they stand

alone as groups that are completely limited in their ability to

petition their elected officials over the airwaves before an

election.

In finding for Appellant, the Court should make it clear

that the electioneering communication restrictions cannot

constitutionally be applied to the bona fide grassroots

lobbying of public charities. Such an outcome is consistent

with precedent, and is essential to ensure that important,

nonpartisan voices fully enjoy their right to petition their

government.

'0 Although these organizations seldom can afford to pay for

major broadcast advertising, the organizations will be impacted in

their use of public service announcements and public access

television and radio channels. These organizations are also very

concerned with the trend apparent in state law to adopt similar

bans on “electioneering communications" and to expand the

definition to include other forms of communication. See supra

note 4.

25

Respectfully submitted,

Robert F. Bauer

Counsel of Record

Karl J. Sandstrom

Ezra W. Reese

PERKINS COIE

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2011

(202) 628-6600

Counsel for Amici Curiae

ADDITIONAL INTERESTS OF AMICI

National Organizations

Alliance for Justice

Alliance for Justice is a 501(c)(3) national association of

environmental, civil rights, mental health, women’s,

children’s, and consumer advocacy organizations. These

organizations and their members support legislative and

regulatory measures that promote political participation,

judicial independence, and greater access to policy processes.

Most of Alliance for Justice’s members are charitable

organizations that receive tax exemption under Section

501(c)(3) of the Internal Revenue Code. A significant

number of its members also work with, or are affiliated with,

other types of nonprofit organizations that promote their

views not only through public education and advocacy on

public policy issues but also in the electoral process.

Alliance for Justice and its 501(c)(4), Alliance for Justice

Action Campaign, occasionally run broadcast ads on

legislative issues — particularly those relating to judicial

nominations.

American Conservative Union Foundation

The American Conservative Union Foundation ("ACUF")

is the educational and charitable arm of the American

Conservative Union ("ACU"), the nation's oldest

conservative lobbying organization. ACUF created the

"Conservative University," designed to place all of the classic

documents and books of the conservative movement in one,

central location. The mission of the Conservative University

is to train the next generation of conservative leaders

nationally by providing them, in a systematic, easily

available and focused manner, the intellectual tools necessary

to become successful political and civic leaders. It is a

2

mission that must be advanced or the movement will die.

There are many things taught to conservatives but the

specific mission here is to provide a fundamental core

curriculum and set of ideas that can provide a lifetime guide

to political and social decision-making.

Center for Lobbying in the Public Interest

The Center for Lobbying in the Public Interest promotes,

supports and protects nonprofit advocacy and lobbying in

order to strengthen participation in our democratic society

and advance charitable missions. It accomplishes this mission

through strategic messaging, a national training program,

targeted resources housed on its website, www.clpi.org, and

co-convening of left/right coalitions to expand and defend

nonprofit advocacy rights.

NARAL Pro-Choice America Foundation

NARAL Pro-Choice America Foundation's mission is to

support and protect, as a fundamental right and value, a

woman's freedom to make personal decisions regarding the

full range of reproductive choices through education,

training, organizing, legal action, and public policy.

National Council of Jewish Women, Inc.

The National Council of Jewish Women, Inc. (NCJW) is a

volunteer organization, inspired by Jewish values, that works

to improve the quality of life for women, children, and

families and to ensure individual nights and freedoms for all

through its network of 90,000 members, supporters, and

volunteers nationwide.

National Legal and Policy Center

The National Legal and Policy Center (NLPC) promotes

ethics in public life through research, education and legal

3

action. NLPC is a 501(c)(3) non-profit foundation which has

played an active role in the public policy debate regarding

issues affecting governmental and public accountability. In

furtherance of its mission, NLPC has been asked to testify on

numerous occasions before Congressional committees and

has participated in public policy debates. NLPC strongly

opposes restrictions which will have the effect of chilling

First Amendment rights of non-profits to vigorously engage

in public discussion on.a wide array of issues which are being

considered before Congress at any given time.

National Council of Nonprofit Associations

The National Council of Nonprofit Associations (NCNA)

is the network of state and regional nonprofit associations

serving over 22,000 members in 46 states and the District of

Columbia. NCNA links local organizations to a national

audience through state associations and helps small and mid-

sized nonprofits manage and lead more effectively;

collaborate and exchange solutions; save money through

group buying opportunities; engage in critical policy issues

affecting the sector; and achieve greater impact in their

communities.

National Low Income Housing Coalition

The National Low Income Housing Coalition is dedicated

solely to ending America’s affordable housing crisis. It

believes that this is achievable, that the affordable housing

crisis is a problem that Americans are capable of solving.

While it is concerned about the housing circumstances of all

low income people, it focuses its advocacy on those with the

most serious housing problems, the lowest income

households.

4

Violence Policy Center

The Violence Policy Center (VPC) is a national

educational organization that engages in research and policy

development to prevent firearm-related death and injury in

America. The VPC regularly communicates with grassroots

organizations and individuals in an effort to educate the

public, policymakers and the media, and to activate support

for gun violence prevention strategies.

Arizona Organizations

Association of American Physicians &

Surgeons Educational Foundation

The Association of American Physicians & Surgeons

(AAPS) Educational Foundation is an Arizona corporation

founded in 1996. A S50l(c)\(3) organization, AAPS

Educational Foundation advocates on behalf of free

enterprise in medicine. It educates the public on the practice

of private and ethical medicine. As part of its activities, it

informs the public about positions taken by public officials.

The dissemination of this information can occur within thirty

days of an election by a public official. While AAPS

' Education Foundation does not attempt to influence the

outcome of elections, its advocacy can occur in proximity to

an election and thus be chilled by the contested campaign

finance regulations.

California Organization.

Eden Housing, Inc.

Eden Housing is a nonprofit affordable low-income

housing developer, manager and resident services provider.

It works within communities to advocate for affordable

housing and for the establishment and retention of social

5

services to help its low-income resident families, seniors and

people with disabilities.

California Association of Nonprofits

California Association of Nonprofits is the nation's largest

nonprofit state association. It is dedicated to reducing the

barriers in the external environment in which nonprofits work

and to streamlining internal operations and developing tools

nonprofits can use to save time and money. With over 2,000

members representing all nonprofit sub-sectors, CAN's

mission is to (a) expand and strengthen the influence,

accountability, and effectiveness of California nonprofits in a

manner that builds their capacity to accomplish their

missions, and (b) preserve and promote the idealism and

value of nonprofits in California.

Connecticut Organizations

Connecticut Association of Nonprofits

The Connecticut Association of Nonprofits organization

represents nearly 500 nonprofit organizations in Connecticut.

It is exempt under 501(c)(3), as are its full members.

Kentucky Organizations

- Clients Council of the Legal Aid Society

Multi-County Clients Council is a 25 year old organization

that has been serving the low-income community since 1981.

M3c addresses the needs and issues of the low wealth client

community by providing information, educational and

referral services as it relates to government benefits and

services its clients receive.

Florida Organizations

Florida Association of Nonprofit Organizations

Incorporated in 1990, the Florida Association of Nonprofit

Organizations (FANO) was created to address the needs of

the nonprofit community at a state level. The mission of

FANO is to enhance the well being of all people and

communities in the State of Florida by building the capacity

of the nonprofit sector. FANO assists Florida’s nonprofits in

strengthening their leadership, management, financial, and

public policy capacity to reach their missions. FANO is a

member-based service organization (over 700 members),

with services to include education, coaching, train-the-trainer

programs, cost-saving offerings for liability and health

insurance, workers compensation, a nonprofit database and

interactive website for outreach, information and education,

and a Preferred Partners Program, a strong relationship with

the for profit community and private sector to increase

opportunities for fundraising, board development, consultant

referrals, and volunteerism for nonprofits. FANO conducts

advocacy education and a minimal amount of grassroots

communications activities.

Maryland Organizations

Maryland Association of Nonprofit

Organizations

The Maryland Association of Nonprofit Organizations is a

statewide organization comprised of almost 1,600 member

nonprofit agencies, associations and institutions, and its

purpose is to support and enhance the effectiveness of the

State's more than 22,000 nonprofit groups in carrying out

their missions of public and community service. It does this

through training and technical assistar:ce to boards and staff,

offering cooperative buying programs, performing research

:

and fostering information sharing and networking, and public

education and policy advocacy.

Massachusetts Organizations

Massachusetts Council of Human Service

Providers

The Massachusetts Council of Human Service Providers is

the state's largest membership organization for the human

service sector. Its sector reaches one in ten residents through

community-based, nonprofit, organizations. It regularly

organizes its members and their employees (over 60,000) to

work with their elected officials to request adequate funding

for human services which includes adequate salaries for low

paid workers and adequate rates to fund quality services. It

also encourages its members to have all stakeholders in their

programs to register and vote.

Michigan Organizations

Michigan League for Human Services

The Michigan League for Human Services (MLHS) is a

statewide citizens non-profit organization dedicated to

education, research and advocacy for the benefit of low

income and other vulnerable citizens in the state of Michigan.

MLHS is comprised of over 1,900 organizational and

individual members and has served the human services

community in Michigan since 1912. MLHS offers

Michigan’s citizens an opportunity to be connected to the

state’s vital human services network and the chance to affect

the outcome of public policy decisions that ultimately impact

the lives of all of the residents of Michigan.

8

Michigan Nonprofit Association

The Michigan Nonprofit Association(MNA) is_ the

collective voice of Michigan's nonprofit organizations. MNA

serves as a statewide network for the sector, a resource center

on effective management practices, and as an advocate for

the nonprofit community.

Montana Organizations

Montana Conservation Voters Education Fund

Montana Conservation Voters Education Fund is a

statewide, non-profit organization dedicated to community

organizing, public education and civic engagement on behalf

of this state's clean air and water, wildlife, forests and open

space. MCVEF provides tools and strategies to the

conservation and environmental community to be more

effective participants in this state's democratic process and

coordinates voter education services to over 35,000 Montana

conservationists, publishes environmental briefing papers,

and monitors legislation and regulations dealing with voter

registration, vote by mail, Montana's ballot measure process,

and environmental issues. MCVEF also provides leadership

development training on communications and civic

engagement techniques to the conservation and

environmental community.

New Jersey Organizations

Center for Non-Profit Corporations, Inc.

The Center for Non-Profit Corporations, New Jersey’s

state association of non-profits, is a 501(c)(3) umbrella

organization serving New Jersey’s non-profit community

(including 600 members) through advocacy, public

education, legal and management assistance, research and

9

membership programs. Its advocacy and public policy work

includes direct and grassroots lobbying on state and federal

issues of concern to the non-profit sector. Its grassroots

lobbying activities primarily take the form of newsletters, e-

mail communications and occasional web page alerts which

are either distributed or visible to non-members as well as

members.

New York Organizations

Bronx AIDS Services, Inc.

Bronx AIDS Services is the largest non-hospital based

provider of services to Bronx residents living with

HIV/AIDS or at risk for HIV/AIDS. Services for HIV

positive people include pantry and nutrition counseling, case

management, legal services, support groups and prevention

services. Prevention services include a mentoring program

for adolescent girls, prevention case management, prevention

programs that use the Internet as an outreach tool, street

outreach, HIV counseling and testing, programs focused on

high risk populations, such as adult and young MSM of

color, and general education classes held both on-site and at

requesting organizations.

Nonprofit Coordinating Committee of New York

The Nonprofit Coordinating Committee of New York

(NPCC) is an “umbrella” nonprofit serving more than 1350

New York City area member nonprofit organizations. Its

mission involves helping New York City area nonprofits to

function better. NPCC provides many workshops on

infrastructure issues (such as preparing for an audit or dealing

with employee issues), offers discounts on goods and

services needed by nonprofits, has an active Government

Relations Committee that works on legislation and

regulations affecting the nonprofit sector, and provides a high

10

volume of telephone and e-mail one-on-one advice and

referrals on numerous questions that nonprofits have.

North Carolina Organizations

North Carolina Center for Nonprofits

The N.C. Center for Nonprofits is a private, 501(c)(3)

nonprofit organization that serves as a statewide network for

nonprofit boards and staffs, an information center on

effective organizational practices, and an advocate for the

nonprofit sector as a whole. It offers services directly to all

sizes and types of 501(c)(3) nonprofits, and it works closely

with other local, state and national groups that assist

nonprofits. It communicates regularly with its membership

of more than 1,600 organizations on a wide variety of

important issues.

Ohio Organizations

The Urban League of Greater Cleveland

The Urban League of Greater Cleveland is a non-profit

organization working to create an equal quality of life for

African Americans, other minorities and persons of

indigenous status through programs, services, research and

advocacy.

Pennsylvania Organizations

Pennsylvania _ Association of Nonprofit

Organizations

The Pennsylvania Association of Nonprofit Organizations

is a statewide membership organization serving and

advancing the charitable nonprofit sector through leadership,

advocacy, education and services in order to improve the

quality of life in Pennsylvania.

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Housing Alliance of Pennsylvania

Established in 1985, The Housing Alliance of

Pennsylvania is a statewide membership organization

working for a home within reach of every Pennsylvanian,

especially those with low incomes. It conducts research,

education and outreach to fulfill its mission.

South Carolina Organizations

New Morning

New Morning supports programs to reduce the incidence

of adolescent pregnancies in South Carolina, primarily in

Richland and Charleston counties. It also supports related

research-based initiatives, and encourages the formation of

community coalitions to help at-risk youth, in the interest of

permanent and positive community change. It does this

primarily through its e-advocacy network,

www.tellthemsc.org.

Texas Organizations

Liberty Legal Institute

Liberty Legal Institute is a 501(c)(3) organization that was

founded in 1997. The Institute fights to protect religious

freedoms and First Amendment rights for individuals,

groups, and churches. The Institute’s assistance is provided

free of charge to ensure all individuals and groups can thrive

without the fear of governments restricting their freedoms.

Liberty Legal Institute is interested in this case because it

occasionally engages in grassroots efforts to effect positive

change in the law for Texas families, including gains in

religious freedom and other civil rights for a broad spectrum

of diverse organizations and individuals.

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Vermont Organizations

Vermont Alliance of Nonprofit Organizations

The Vermont Alliance of Nonprofit Organizations

(VANPO) is a 501(c)(3) nonprofit organization based in

Vermont. It represents over 380 Vermont nonprofit

organizations, plus it has approximately 80 individual and

corporate supporting members. It engages in occasional

grassroots communications with its members regarding~

issues of interest to its members.

Utah Organizations

Utah Nonprofits Association

The Utah Nonprofits Association's mission is to strengthen

and promote the success of Utah's nonprofit community. It

provides training, services, and advocacy on behalf of the

nonprofit sector in Utah. UNA exists to help nonprofit

organizations succeed by providing their -leaders with

valuable information, resources and training opportunities to

help them more effectively manage their organizations.

Wisconsin Organizations

NARAL Pro-Choice Wisconsin Foundation

NARAL Pro-Choice Wisconsin Foundation, a_ section

501l(c)(3) organization, supports and protects, as a

fundamental right and value, a woman’s freedom to make

personal decisions regarding the full range of reproductive

choices through education, training, organizing, legal action,

and public policy.