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

Nos. 06-969 and 06-970

$n the Supreme Court of the Cited States

PE DERAL ELECTION COMMISSION,

Appellant,

¥.

WISCONSIN RIGHT TO LIL. ING.

Appellee.

SENATOR JOHN MCCAIN, EL AL.

Intervenor-Appellants,

or

WISCONSIN RIGHT TO LIFES ING.

Appellee.

ON APPEALS

PROM THE UNTIED STATES DISTRICT COP RI

LOR THE DISTRICT OF COLLNMIBIT

BRIEF OF A COALITION OF PUBLIC CHARITIES,

AS AMICT CURTAE IN SUPPORT OF APPELLEE

ROBERT FF. BAUER

Counsel of Record

KARI J. SANDSTROM

b/RAW.REES

PERKINS Con LEP

607 Fourteenth Street. N.W.

Washington, D.C. 20005

(202) 628-6600

Counsel for Amici Curiae

WiLSON-EPES PRINTING CO. INC. — (202) 789-0096 - WasHincton,D C 20002

INTEREST OF THE AMICI CURIAE ..................ccccscsssssssssooeees l

A. ee I reat nieicnnnisiintenicesinteiecanianinhalanianinamiinnialtlad l

B. I IID cicrscsnisinriersintnientnninnnsanssonianieninae 3

TE lee CUI UIIE sricisnssisessiicnbcinlininieentnsittabeiniaticsnnictansaieie 5

od Electioneering Restrictions Are Too Broad......... 6

l. Electioneering Communication

Prohibition Restricts

Communications by 501(c)(3)

SE rrnseeenncqentsonscsamennitneentnencies 6

2. Nonprofit Lobbying Is Protected

under the First Amendment ................... 12

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

Intervene in Political Campaigns....................... 16

l. Section 501(c)(3) Organizations

Are Prevented From Directly

Intervening in Elections..................c008 16

y Section 501(c)(3) Organizations

TABLE OF CONTENTS

Are Prevented From Operating

E. ‘Section 501(c)(3) Organizations Pose No

Risk of Corruption or Distortion

F. The Court Should Permit Section 501(c)(3)

Organizations To Operate Freely within the

Limits of their Tax Structure

CONCLUSION

ii

TABLE OF AUTHORITIES

Cases

Buckley v. Valeo, 424 U.S. 1 (1976).......ccccccesesceeeeeeees 19, 24

Cal. Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508 (1972) .....ccccceeceseeeeeeeees 13

Christian Echoes Nat. Ministry, Inc. v.

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

Suni SHUI icsinciciehinsitcenesenebidsenieeainditesnipceteiphabaepeasteliaatnanan 19

Electioneering Communications, 67

Fed. Reg. 65,190 (Oct. 23, 2002) ............0c0sccceceeeee 8, 9, 26

FEC v. Beaumont, 539 U.S. 146

EESTI eo an ee Toe TET 6

FEC v. Nat'l Right to Work Comm.,

Ge SI cieeneniesscicsticiicniipsinctinnnigenennnnisnninsiabien 25

First Nat'l Bank of Boston v. Bellotti,

ee ees. ee isetenihichissicnchsntcdiibnsenbieateiesetuiciianiainiin 14

McDonald v. Smith, 472 U.S. 479

SIE hschiasbedsieniiiehsibadeiienibiaiatsiedinnitianiibiedamnieversepeininhteateinedadne 13

New York Times Co. v. Sullivan, 376

Na EE chicsiinsisinddenliedaniieiestsitaceiinbanpanitiiiinbunibsie 14

Pac. Gas & Elec. Co. v. Pub. Util.

RS ee 14

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

ans: ME asiniadiiinincnsasoensici adndoiseinndui Dyesseeeseeeseeees 9, 10, 16

iil

TABLE OF AUTHORITIES—Continued

United States v. Cruikshank, 92 U.S.

Pe TaD csivsishicinincinsigsestnsicihinsisdianiateipriniimidipabuiinstaaamasdieid 13

US. V. UAW-CIO, 352 U.S. 567 (1957).....:ccccecceeceeeees 25

Statutes

10 ILL. COMP. STAT. 5/9-1.14 cascecsssesssssssssssseseesveseee 17

es Se ecreresipeseipedinectaininaperreniiennioteistancisialiopniiiiien 7

ae I sicusisapinnniinetniincnnaeniivinemeiinmnnicinnestinmeiin 10, 31

aes ee scinsciianrsncisepachissatomneeiandnilatansiemnepiesnadeidin 25

Bs Se srensennindntictintpcinciniinneneniiniuiumnninienaediil passim

PEA TUE. 6 SOD ceccettincvinninscmininmnaccenenniess 17

Bipartisan Campaign Reform Act of

2002 ("BCRA"), Pub. L. No. 107-

I a passim

oe eB, Ey REE 17

rae ee Mat SUTIN TY cihehseheecicindichchaincniaehceinenisiinseiiiataisnenscinainindionii 17

GUAM CODE ANN. tit. 3, § 19L12. 1... eee 17

Rs 5 aaa eee 17

a 15, 19, 20

dS LS SENS COREE 20

iV

TABLE OF AUTHORITIES—Continued

Snail a UTUIITEDY iesncipiehieiileilensabideideiepnccdeatomasiashaiccahonatinciainiaionsieias 18

na a isis ssicdestineeitatincianinncnnnindinesiiinaniesill passim

a ceeenll 19

Seo a ee eerie 19, 20

RSE ee ee PET 18

IDAHO CODE ANN. § 67-6602 ......c..00000000000 ys aenueeni 17

es ls Gs Ae PE PIRI cicnniccccvnstncisenosediasanchsnspeses 17

ee FD. >. enn ee DaNTED EEE 17

ile ee SP iernssnsinrrccccenincosseeenensnenbicnisencanins 17

PHAGE, FEBV. COE © GF Fi iceccnccgecceccencsvsctescccesesece 17

Regulations and Rules

Be ee OF I ctincevriictindenstninindcnininntnisctcesive 7,8,9

Ee aes Oe SRI ST Rvccccennccntnschctsonnniatitinasndedsitees 22

ee ele Oe 6 I IE Piniccinssncncusdvotasnonsnsssoacicssmmecasion 26

Treas. Reg. § 1.501(c)(3)-1 (2007)... eee 17

Treas. Reg. § 1.501(c)(4)-1 (2007)... eens 26

Treas. Reg. § 1.501¢0)-1 (2007) ........c.ccccccrcscrcrrssessecess 18

Vv

TABLE OF AUTHORITIES—Continued

BORD, GR. © 1 Fra Gre Pevesecscsiesernicntiininiibadehdtuaatens 17

Treas. Reg. § 56.491 1-2 (2007)....ccscoscccccssosscesssvsscoooess 13

Treatises

1 Blackstone's Commentaries (St.

George Tucker ed., Philadelphia,

EN Ge I Ce ericctnnstertcsccciecniianiiiaiiiicnsanamianaia’ 14

2 STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED -

TG TGR revsecicnusicctisénditiniittinsipadimmataaaa’ 15

Other Authorities

Electioneering Communications, 70

FOR. REG. 75,703 (IGE. 21, BABS) .cocssccccsrececevsccsvesses 8, 9, 24

Exception for Certain "Grassroots

Lobbying” Communications From

the Definition of "Electioneering

Communication," 71 Fed. Reg.

Fe GRUB. Fi, Fe cocccevsnccsavsicsnasinnmmntsntintdiinaiia 10

Express Advocacy; Independent

Expenditures; Corporate and Labor

Organization Expenditures, 60 Fed.

FA, SS te CUE G, TOD ccsncsccncscnsnccsssucsciuincaionsiions 26, 27

I.R.S. Priv. Ltr. Rul. 96-52-026 (Dec.

Bio Tee acccsccsstnnionintenctinistnteninianeniavinamiaiiiaiali 18

vi

TABLE OF AUTHORITIES—Continued

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

Year Issues, EXEMPT

ORGANIZATIONS CONTINUING

PROFESSIONAL EDUCATION

TECHNICAL INSTRUCTION PROGRAM

EEE Ce 21

Rev. Rul. 2004-6, 2004-1 C.B. 328.000... cceeeeeees 19

INTEREST OF THE AMICI CURIAE

Amici' are public charities, tax-exempt under section

50l(c)3) of the Internal Revenue Code. Individual

organizations’ Statements of [nterest 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 1|7-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 estate tax. Roughly

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

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

authored this bref, 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

ninety percent of its revenue comes from foundations,

often in the form of project grants.

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 tur,

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.

3

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 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, ts 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 575

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

4

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 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 nghts 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 represcntatives 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

5

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 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.?

SUMMARY OF ARGUMENT

The electioneering communication restriction 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)), is overbroad as applied to organizations

granted tax exemption by the Internal Revenue Service

("IRS") under section 501(c)(3) of the Internal Revenue

Code ("the Code"). Sections 203 and 204 of BCRA were

designed to prevent only "sham issue ads," which are "the

functional equivalent of express advocacy." McConnell v.

FEC, 540 U.S. 93, 185, 206 (2003). Organizations such as

amici, organized and operating under section 501(c){3) of

the Code, are already subject to severe restrictions,

enforced by the Code and United States Treasury

regulations, preventing them from intervening in political

campaigns. In light of these restrictions, the

Additional Interests of Amici are included in the Appendix to

this brief.

6

electioneering communication prohibition serves no

compelling state interest when applied to charitable

organizations. Moreover, section 501(c)(3) organizations

do not enjoy the alternative of establishing federally-

registered political committees ("PACs") to speak freely

within the electioneering communication period, an option

this Court found critical when rejecting a facial challenge

to the electioneering communication restriction on

corporate speech. See id. at 204 (citing FEC v. Beaumont,

539 U.S. 146, 163 (2003)).

When considering when the First Amendment requires

an as-applied exception to the electioneering

communication restrictions, this Court should consider

and rely on the unique restrictions on section S501(c)(3)

organizations, already strictly enforced by the IRS, that

make it impossible for them to the sponsor sham issue ads

targeted by BCRA, and permit them to speak freely so

long as they honor the boundaries mandated by their tax-

exempt status.

C. Electioneering Restrictions Are Too Broad

1. Electioneering Communication Prohibition

Restricts Communications by 501(c)(3)

Organizations

Among other significant changes in federal election

law. BCRA amended 2 U.S.C. § 441b to prohibit

corporations and labor unions from making a payment for

an "electioneering communication.” 2 US.C.

§ 441b(b)(2). The prohibition applies to all corporations,

including 501(c)(3) organizations that incorporate solely

for liability purposes. It bars electioneering

communications by charitable corporations even when

7

paid for with funds contributed only by individuals. See

id.§ 441b(c)(2), (6).

The definition of an “electioneering communication"

includes "any broadcast, cable, or _ satellite

communication" that "refers to a clearly identified

candidate for Federal office," that is made 30 days before

a primary election, or 60 days before a general election,

and that can be received by 50,000 or more persons in the

relevant district or state. Jd. § 434(f)(3)(A), (C).?

For candidates for President and Vice President, the 30-

day electioneering communication period before the

primary election will differ from state to state, due to the

presidential primary schedule that begins with the lowa

caucuses on January 14, 2008; the electioneering

communication period also includes the 30 days before

each national political party convention and the days of

the convention itself. See 11 C.F.R. § 100.29(a)(3)(11)(A)

(2007). Though the primary dates are not yet finalized for

either the Democratic or Republican parties, the

presidential primary calendar will likely result in an

almost continual electioneering communication blackout

period for the nationwide reference of presidential

candidates between December 15, 2007, and the end of

each party's national convention.

3 The statutory scheme only includes the "received by 50,000

persons" limitation for electioneering communications _ that

refcrence a candidate for Senator or Representative to Congress;

the Federal Election Commission, by regulation, has also applied

this limitation to communications that reference candidates for

President or Vice President. See 11 C.F.R. § 100.29(a)(3)(ii)

(2007).

8

The definition of "clearly identified" is defined, by

Federal Election Commission ("FEC") regulation, to

include a candidate's name or photograph; it also includes

communications in which "the identify of the candidate is

otherwise apparent," including terms such as the term

"your Congressman." 11 C.F.R. § 100.29(b)(2).

Surprisingly, it even includes a reference to a popular

name of legislation identified by the sponsors’ name. See

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

65,200-201 (Oct. 23, 2002). Thus, a reference to

"McCain-Feingold," made on television or radio within

the electioneering communication period, is considered an

"electioneering communication" under BCRA and the

promulgated regulations.

In its implementing regulations, the FEC limited the

definition of an electioneering communication to a

communication "disseminated for a fee." The FEC

explained that BCRA's "legislative history abundantly

documents that paid advertisements were the focus of the

electioneering communication provisions." 67 Fed. Reg.

at 65,192. However, that limitation was challenged in the

United States District Court for the District of Columbia,

which found that the exception was inconsistent with the

plain meaning of the statute. Shays v. FEC, 337 F. Supp.

2d 28, 129 (D.D.C. 2004), aff'd, Shays v. FEC, 414 F.3d

76, 109 (D.C. Cir. 2005). Subsequently, the FEC revised

its regulation to remove this exception. See Electioneering

Communications, 70 Fed. Reg. 75,713, 75,715 (Dec. 21,

2005).

The original electioneering communication regulations

also contained an exception for any communication that is

"paid for by any organization operating under section

501(c)\(3) of the Internal Revenue Code of 1986." 67 Fed.

Reg. at 65,200. The FEC reasoned:

9

Section 501(c)(3) organizations are barred as a

matter of law from being involved in partisan

political activity. 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

very nature, do not do.

Id. The FEC noted: "Should the Internal Revenue Service

determine, under its own standards for enforcing the tax

code, that an organization has acted outside its 501(c)(3)

status, the organization would be open to complaints that it

has violated or is violating Title Il of BCRA." /d. The

FEC also pledged to work with the IRS to promulgate

mutually consistent rules and regulations, as they are

required to do by statutory mandate. See 2 U.S.C.

§ 438(f).

This regulatory exception was also challenged in Shays

v. FEC; the court held that it violated the Administrative

Procedures Act. See Shays, 337 F. Supp. 2d at 127. The

FEC thereafter revised the electioneering communication

definition to remove this exception for charitable

organizations. See 70 Fed. Reg. at 75,714.

To provide an avenue for the broadcast of genuine

nonpartisan lobbying communications, a coalition of

organizations described in section 50l(c) of the Code,

including OMB Watch, filed with the FEC a Petition for

Rulemaking on February 16, 2006. The Petition requested

that the FEC revise 11 C.F.R. § 100.29 to permit

"grassroots lobbying" communications. The petition

requested an exception from the “"electionecring

10

communication" definition, based on the following six

factors: |

(1) "The ‘clearly identified federal candidate’ is an

incumbent public officeholder;"' (2) "The

communication exclusively discusses a particular

current legislative or executive branch matter;" (3)

"The communication either (a) calls upon the

candidate to take a particular position or action

with respect to the matter in his or her incumbent

capacity, or (b) calls upon the general public to

contact the candidate and urge the candidate to do

so;" (4) "If the communication discusses the

candidate’s position or record on the matter, it does

so only by quoting the candidate’s own public

statements or reciting the candidate’s official

action, such as a vote, on the matter;" (5) "The

communication does not refer to an election, the

candidate’s candidacy, or a political party;" and (6)

"The communication does not refer to the

candidate’s character, qualifications or fitness for

office." :

Exception for Certain "Grassroots Lobbying"

Communications From the Definition of "Electioneering

Communication," 71 Fed. Reg. 52,295, 52,295 (Sep. 5,

2006).4 On August 29, 2006, the FEC voted to decline the

petitioners’ request, noting that the litigation in the case

presently before this Court "may provide the Commission

4 Amici believe that FEC reguiatory action could alleviate but

not cure the constitutional injury occasioned by the overbreadth of

the electioneering communication ban as applied to chantable

organizations.

11

with guidance on whether and how the Commission

should exercise its discretion in this area." /d. at 52,296.

As a result, the current statutory and regulatory regime

provides no avenue for a section 501(c)(3) organization

that wishes to reference a federal candidate on radio or

television during the electioneering communication period

to do so. It matters not that the content is entirely neutral

and nonpartisan and devoid of electoral content. [t matters

not that the organization is statutorily forbidden to attempt

to influence the election.’ And it matters not that the

organization's communication is broadcast for free as a

public service announcement or on public access

television or radio. E

The electioneering communication restriction, as

enacted by Congress, prohibits a_ section 501(c)(3)

organization from airing a_ grassroots lobbying

communication that asks listeners to contact their Member

of Congress, even if the communication says nothing

about the Member's position on the issue. The restriction

requires a public charity sponsoring a C-Span nationally

televised educational conference to instruct speakers that

they may not mention a federal officeholder or candidate,

or even the phrase "your Congressman," if the conference

will be in the 30 days before any congressional primary or

in the 60 days before the general election. The restriction

prohibits a church from broadcasting a service in which a

candidate may be in attendance during the electioneering

communication period before that candidate's election.

Indeed, the electioneering communication restriction

goes so far as to prevent a section 501(c)(3) organization

> See section D, infra.

12

from holding a symposium, nationally televised on C-

Span, on the very topic of this brief. BCRA is commonly

known as the "McCain-Feingold" legislation. Senator

McCain is a candidate for nomination for President from

the Republican Party. Due to the series of presidential

nominating contests, the electioneering communication

period for the primary elections will be in place

somewhere in the country almost continuously beginning

on December 15, 2007. These restrictions do not end until

the day after the Republican National Convention, the

very day the sixty-day period before the general election

begins. Thus, an educational institution's discussion of

this very case must wait until after November 4, 2008, if it

will be carried nationally via a public access television or

radio station.

The electioneering communication restriction prevents

wide swaths of educational and nonpartisan speech by

section 501(c)(3) organizations. Against the powerful

First Amendment interests of these organizations, the

absolute ban on corporate electioneering communications

cannot stand.

2. Nonprofit Lobbying Is Protected under the

First Amendment

"Congress shall make no law respecting . . . the nght 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)).

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 (1972).

13

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.

| 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).

The First Amendment protects the right of corporations,

as well as individuals, to petition the legislature through

direct or grassroots lobbying. The discussion of

government affairs "is the type of speech indispensable to

decisionmaking in a democracy, and this is no less true

because the speech comes from 2 corporation rather than

an individual." First Nat'l Bank of Boston v. Bellotti, 435

U.S. 765, 777 (1978). "The mere fact that the Chamber ts

a corporation does not remove its speech from the ambit of

the First Amendment." Austin v. Mich. Chamber of

Commerce, 494 U.S. 652, 657 (1990). Corporations also

"contribute to the ‘discussion, debate, and _ the

dissemination of information and ideas’ that the First

Amendment seeks to foster." Pac. Gas & Elec. Co. v.

Puy. Util. Comm'n, 475 U.S. 1, 8 (1986) (quoting Bellotti,

435 U.S. at 783).

The term "grassroots lobbying" is defined by regulation

as “any attempt to influence any legislation through an

attempt to affect the opinions of the general public or any

segment thereof." Treas. Reg. § 56.4911-2(b)(2)(i)

(2007). According to a survey of over 1,700 section

14

501(c){3) organizations conducted by OMB Watch in

2002, seventy-eight percent of section 501(c)(3)

organizations participate in policy debates through

grassroots lobbying. 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.

The grassroots lobbying efforts conducted by section

501(c)(3) organizations fall squarely into the protection

offered by the First Amendment. These lobbying

campaigns are pure speech, directed at legislative officials

and the public, with the sole purpose of affecting the shape

and direction of public policy. These efforts are vital to a

well-functioning democracy.®

Often lobbying efforts are undertaken in response to

unanticipated legislative developments. These campaigns

depend on speed and timeliness; their timing is completely

dependent on when legislative issues arise. Section

501(c)(3) organizations cannot simply put their efforts on

hold during election years; the rolling primary calendar

means that nationwide lobbying efforts are forbidden for

much of the year. Moreover, if lobbying efforts cannot be

unveiled contemporaneous.y with the timing of the

legislative vote at issue, no matter when that vote occurs,

® "(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).

15

the right to petition will be little more than an academic

privilege.’

As noted above, in the wake of Shays v. FEC and the

resulting revision of the electioneering communication

regulations, section 501(c)(3) organizations are limited not

just with regard to their paid lobbying communications,

but also for completely dispassionate educational

programming that is broadcast for free on public access

television or radio. These activities were not the focus of

Congress when enacting BCRA, nor do they bear any

threat of influencing federal elections. And yet the broad

scope of 2 U.S.C. § 441 b(c) restricts these activities just as

completely. This prohibition on speech is not justified by

the nonexistent threat of electoral influence posed by

section 501(c)(3) organizations and the special statutory

and regulatory restrictions imposed on them as a result of

their tax status.

Amici are not completely silenced during the

electioneering communication blackout periods. A

corporation, including a charitable organization, may refer

to a federal candidate in direct mail, over the telephone, on

the Internet or in a pamphlet during a blackout period.

These avenues of communication, however, are often

more costly and less effective than broadcast

communications. Amici are also concerned that Congress

7 Indeed, legislators and lobbyists can easily take advantage of

the blackout to enact legislation hostile to ncnprofit organizations’

interests, knowing that the nonprofit community will have

difficulty mobilizing public opposition.

16

may extend, as several states already have,* the

electioneering communication ban to other forms of

communication. If the electioneering ban can be

constitutionally applied to the broadcast communications

of charitable organizations, there is no apparent reason

why other means of communication would be entitled to

greater constitutional protection.

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

Intervene in Political Campaigns

1. Section 501(c)(3) Organizations Are

Prevented From Directly Intervening in

Elections

Section S0l(c)3) of the Code requires that

organizations described there “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." I.R.C.

§ 501(c)(3); see also id. § 170(c2)(D). This prohibition

is absolute; the IRS does not permit section 501(c)(3)

organizations from engaging in any political activity, even

a de minimis amount.

Any violation of this prohibition can result in an

organization losing its tax-exempt status entirely. An

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

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

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

N.C. GEN. STAT. § 163-278.90(2); 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.

17

organization in violation of this restriction is also subject

to fines; so is any individual manager of the organization

who engaged in the activity knowing it was a political

expenditure. /d. § 4955. Moreover, the IRS also has the

authority, in the case of “flagrant” political campaign

activity, to seek an injunction in federal court to prevent

future political expenditures. /d. § 7409.

Section 501(c)(3) organizations must apply to the IRS for

approval of their tax-exempt status. See I.R.C. § 508(a).

As part of the application process, they must establish to

the IRS's satisfaction that they can meet both the

organizational and the operational limitations of section

501(c)(3), including the prohibition on political activity.

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

The definition of political intervention is extremely

broad. Communications that do not "expressly advocate

the election or defeat of a clearly identified candidate," see

Buckley v. Valeo, 424 U.S. 1, 80 (1976), may still be

found to be political micrvention; the IRS examines "all

the facts and circumstances" surrounding _ the

communication to determine whether it is political in

nature. Treas. Reg. § 1.527-2(c)(1); see, e.g., Christian

Echoes Nat. Ministry, Inc. v. United States, 470 F.2d 849,

856 (10th Cir. 1972), cert. denied, 414 U.S. 864 (1973).

Section 501(c)(3) organizations are also strictly limited

in their total amount of grassroots lobbying. "No

substantial part” of the activities of a section 501(c)(3)

organization may be “carrying on propaganda, or

otherwise attempting, to influence legislation." I.R.C.

§ 501(c)(3). The actual amount varies, depending on

whether an organization has elected a specific expenditure

test, or whether it is subject only to the baseline

"substantial part" test. See id. § SOl(h); id. § 4911(c);

18

Treas. Reg. § 1.501(h)-I(a). Lobbying in excess of the

prescribed limits can result in a fine for those

organizations subject to the expenditure test, see I.R.C.

§ 4911, and revocation of the organization's tax-exempt

status.?

The IRS has focused extensively on the political

intervention prohibition in recent years, both by providing

an increased level of guidance and by strengthening its

enforcement activities. In December 2003, the IRS issued

a revenue ruling that clarified, through examples, when a

communication would be considered to be political

intervention.'® The revenue ruling included six factors

that "tend to show that an advocacy communication on a

public policy" is, in fact, a political communication:

a) The communication identifies a candidate for

public office;

b) The timing of the communication coincides with

an electora! campaign;

c) The communication targets voters in a particular ,

election;

9 Private foundations are even more restricted; they cannot

engage in any lobbying activities at all. See id. § 4945(d)(1).

'0 In fact, this revenue ruling technically addressed only when

the activities of a section 501(c)(4), (5), or (6) organization would

be deemed political intervention; these organizations may engage

in limited amounts of political activity, subject to tax. See id.

§ 527(f). However, for most purposes, the IRS considers the

inquiry to be the same. See I.R.S. Priv. Ltr. Rul. 96-52-026 (Dec.

27, 1996). Thus, this revenue ruling is considered instructive on

the political prohibition on section 501(c)(3) organizations.

19

d) The communication identifies that candidate's

position on the public policy issue that is the

subject of the communication;

e) The position of the candidate on the public

policy issue has been raised as distinguishing the

candidate from others in the campaign, either in

the communication itself or in other public

communications; and

f) The communication is not part of an ongoing

series of substantially similar advocacy

communications by the-organization on the same

issue.

Rev. Rul. 2004-6, 2004-1 C.B. 328. More recently, in

February 2006 the IRS released a fact sheet with more

examples of what the IRS does and does not consider to be

political intervention. See I.R.S. News Release IR-2006-

36 (Feb. 24, 2006).

At the same time, the IRS released the initial results of its

Political Activities Compliance Initiative. Through this

process, the IRS conducted one hundred thirty-two field

examinations of section 501(c)(3) organizations suspected

of engaging in prohibited political campaign activity. The

IRS also pledged "to provide more and better guidance

and move quickly to address prohibited activities." See id.

It is now clear that the IRS is taking strong action to both

clarify what constituted prohibited political campaign

activity, and to take enforcement action against those

organizations that violate the prohibition. As a result,

section 501(c)(3) status — now more than ever — is an

effective barrier to political campaign activity.

20

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

Prevented From Operating PACs

When this Court upheld 2 U.S.C. § 441b(c) against a

facial challenge, it noted: "in the future corporations and

unions may finance genuine issue ads during those

timeframes by simply avoiding any specific reference to

federal candidates, or in doubtful cases by paying for the

ad from a segregated fund." See McConnell, 540 U.S. at

206. The Court was referring to the ability of a

corporations or labor union to establish a federally-

registered separate segregated fund (a "PAC"), into which

individual funds can be solicited from a corporation's

stockholders and executive and administrative personnel,

or from a labor union's members. See 2 U.S.C. § 441b(2).

The ability of a corporation or labor union to engage in

some political speech, albeit through constrained channels,

was crucial to the Court's holding; it was also an important

factor when the Court found that the state of Michigan's

ban on corporate political contributions was narrowly

tailored. See Austin, 494 U.S. at 660 (noting that "the Act

does not impose an absolute ban on all forms of corporate

political spending but permits corporations to make

independent political expenditures through separate

segregated funds"). Indeed, even Appellant defends the

absolute prohibition on electioneering communications by

corporations by explaining: “A corporation or union

remains free, moreover, to establish a separate segregated

fund and to pay for electioneering communications in

unlimited amounts from that fund." (Appellant Br. 7).

Section 501(c)(3) organizations, due to the prohibition

on political campaign activity, are prohibited from taking

advantage of this option. While the IRS has never made a

formal ruling on this precise issue, the statutory and

regulatory regime prevents a_ section 501(c)(3)

21

organization from engaging in political activity, including

creating a subsidiary political account. Informally, the

IRS has so advised its agents and the regulated

community. See J.E. Kindell & J.F. Reilly, Election Year

Issues, EXEMPT ORGANIZATIONS CONTINUING

PROFESSIONAL EDUCATION TECHNICAL INSTRUCTION

PROGRAM 335, 344 (2002) (advising that "an IRC

501(c\(3) organization may not . . . establish political

action committees (PACs)").

Moreover, even if a section 501(c)(3) organization

could form a political committee account solely to use as a

safe harbor, it would ordinarily have extremely few

individuals to solicit for contributions: there are no

stockholders; the number of executive and administrative

personnel are usually small in number; and section

501(c)(3) organizations, unlike their brethren organized

under section 501(c)(4), (5), or (6), are rarely organized as

membership organizations. Thus, even if there were not a

strong legal prohibition to the use of a separate segregated

fund, there is an equally strong practical barrier.

The result is that section 501(c)(3) organizations are

singled out for silence. Only these organizations, which

are prohibited from partisan political intervention as a

condition of their tax status, are completely barred from

speaking during the electioneering communication

periods. The irony could not be greater, because section

501(c)(3) organizations do not pose any of the risks

justifying the electioneering communication restrictions

on corporate speech.

22

E. Section 501(c)(3) Organizations Pose No Risk of

Corruption or Distortion

This Court has only upheld the regulation of freedom of

speech in the political sphere if justified by one of two

compelling interests. The first is “corruption or the

appearance of corruption," McConnell, 540 U.S. at 179;

the second is "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, 540 U.S. at 205. Neither of

these justifications can justify onerous restrictions on the

lobbying and educational activities of section 501(c)(3) .

organizations.

Independent political expenditures do not "appear to

pose dangers of real or apparent corruption comparable to

those identified with large campaign contributions."

Buckley, 424 U.S. at 46. The lobbying and educational

efforts of section 501(c)(3) organizations, cabined within

the IRS's strict prohibition against political campaign

activity, pose even less of a danger. Moreover, because of

the existing restrictions on coordinated communications, a

section S501(c)(3) organization cannot distribute lobbying

or educational communications within the electioneering

communication period that reference a federal candidate

"in cooperation, consultation, or concert," with either that

candidate or a political party. See 2 U.S.C. § 44la(a){7);

11 C.F.R. § 109.21.'' Simply put, there is no legitimate

'' 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 id.

23

risk of corruption or the appearance thereof from the

educational and lobbying activities of section 501(c)(3)

organizations.

Nor does the lobbying and educational activity of

section 501(c)(3) organizations raise “the prospect that

resources amassed in the economic marketplace may be

used to provide an unfair advantage in the political

marketplace." FEC v. Mass. Citizens for Life, Inc., 479

U.S. 238, 257 (1986). Section 501(c)(3) organizations

cannot accumulate commercial wealth to dominate the

political debate; their resources, by law, must be devoted

to public purposes. They do not "exercise control over

large aggregations of capitol," US. V. UAW-CIO, 352 U.S.

567, 585 (1957); nor do they hold "substantial

aggregations of wealth amassed by the special advantages

which go to the corporate form of organization." FEC v.

Nat'l Right to Work Comm., 459 U.S. 197, 207 (1982).

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.

Indeed, there is no evidence — none at all — to suggest

that genuine section 501(c)(3) lobbying or educational

activities are a vehicle for "the corrosive and distorting

effects of immense aggregations of wealth that are

accumulated with the help of the corporate form." Austin,

494 U.S. at 660. Unlike "sham issue ads," which this

Court found to be the "functional equivalent" of express

advocacy, legitimate lobbying efforts are barred, by statute

and IRS regulation, from being "intended to influence the

voters’ decisions." McConnell, 540 U.S. at 206. There is

no evidence that section 501(c)(3) organizations produce

the "bogus issue advertising" that was the focus of the

electioneering communication restriction. See id. at 129.

The evidence Congress compiled when passing BCRA, on

24

which this Court relied heavily in upholding the

electioneering communication — restrictions, never

referenced section 501(c)(3) organizations. See id. at 126-

32. More recently, the FEC found no evidence during its

rulemakings that suggest sham issue ads sponsored by

501(c)(3) organizations are a factor. See 70 Fed. Reg. at

75, 714; 67 Fed. Reg. at 65,200.

F. The Court Should Permit Section 501(c)(3)

Organizations To Operate Freely within the

Limits of their Tax Structure

This Court, when upholding the electioneering

communication restriction against a facial challenge,

"assume|d] that the interests that justify the regulation of

campaign speech might not apply to the regulation of

genuine issue ads." McConnell, 540 U.S. at 206 n.88.

The Court is now faced with a group of organizations that,

because of their tax status and rigorous IRS oversight, can

only sponsor "genuine issue ads." When considering the

contours of a First Amendment as-applied exception to the

electioneering communication restriction, this Court

should rely on that tax status to allow greater flexibility for

section 501(c)(3) organizations.

There is precedent, in both the Court's interpretation of

the corporate ban on expenditures and in the FEC's

regulations, for reliance on tax status for increased First

Amendment protection. Furthermore, the FEC has

previously recognized that the political restrictions which

are a condition of section 501(c)(3) status allow greater

freedom for section 501(c)(3) organizations without the

risk that they will use that freedom for political purposes.

In the case FEC v. Massachusetts Citizens for Life, Inc.,

this Court confronted an as-applied challenge to the

25

statutory prohibition on corporate independent

expenditures. It ruled that the First Amendment did not

permit the prohibition to extend to the appellant. "We

acknowledge the legitimacy of Congress’ concern that

organizations that amass great wealth in the economic

marketplace not gain unfair advantage in the political

marketplace... . [T]hat justification does not extend

uniformly to all corporations." 479 U.S. at 263. The

Court went on to explain the factors that differentiated the

appellant from the commercial enterprises that remained

bound by the statutory prohibition:

First, it was formed for the express purpose of

promoting political ideas, and cannot engage in

business activities. . . . Second, it has no

shareholders or other persons affiliated so as to

have a claim on its assets or earnings... . Third,

MCFL was not established by a_ business

corporation or a labor union, and it is its policy not

to accept contributions from such entities.

Id. at 263-64. The Court also cautioned, "should MCFL's

independent spending become so extensive that the

organization's major purpose may be regarded as

campaign activity, the corporation would be classified as a

political committee." /d. at 262.

When the FEC promulgated regulations to define the

outer boundaries of this exception and what it meant to be

an organization "formed for the express purpose of

political ideas" but not one whose "major purpose may be

regarded as campaign activity," it relied explicitly on the

tax status of a corporation. A "qualified nonprofit

corporation" that is exempt from the prohibition on

corporate independent expenditures and electioneering

communications must be, among other requirements,

26

"described in 26 U.S.C. 501(c)(4)." ll C.F.R.

§ 114.10(c)(S). In its rulemaking, the FEC explained:

"Section 501(c)(4) describes a class of organizations

known as social welfare organizations that are exempt

from certain tax obligations.... A corporation must be a

social welfare organization in order to be exempt from the

prohibition on independent expenditures." Express

Advocacy; Independent Expenditures; Corporate and

Labor Organization Expenditures, 60 Fed. Reg. 35,292,

35,301 (July 6, 1995). The FEC reasoned that because

section 501(c)(4) status permitted "a limited amount of

political activity," but not so much that it becomes an

organization's primary purpose, the tax status of the

organization should be made a requirement to the

corporate expenditure exception. See id.; see also Treas.

Reg. § 1.S01(c)(4)-1(a)(2)(i1), (a)(2)(1).

There is also precedent in the FEC's regulations for the

permissive treatment of section 501(c)(3) organizations

due to the strict political activity prohibition enforced by

the IRS. As noted above, the Court in MCFL carved an

exception only for nonprofit corporations that did not

accept contributions from labor unions or husiness

corporations. See 479 U.S. at 264. The FEC's definition

of a “qualified nonprofit corporation" imported this

concept, requiring that an organization "[{d]oes not directly

or indirectly accept donations of anything of value from

business corporations, or labor organizations." See 11

C.F.R. § 114.10(c)(4). However, there was a real concern

that this clause would prevent qualifying organizations

from receiving grants from section 501(c)(3) organizations

that do accept contributions from business corporations

and labor unions. And indeed, the FEC noted that as a

gencral matter, "if a corporation accepts donations from an

organization that accepts donations from these entities, the

27

corporation will not be a qualified nonprofit corporation."

60 Fed. Reg. at 35,300.

In the face of this worry, the FEC made a regulatory

exception for section 501(c)(3) organizations.

However, under IRS rules, section S01(c)(4)

organizations that receive funds from a section

501(c)(3) organization are required to use those

funds in a way that is consistent with the section

501(c)(3) organization's exempt purpose. Since

political campaign intervention is never consistent

with a section 501(c)(3) organization's exempt

purpose, the recipient’ section 501(c)(4)

organization is not supposed to use the grant for

campaign activity... . So long as these safeguards

exist, the Commission will not regard a grant from

a section 501(c)\(3) organization to a qualified

nonprofit corporation as an indirect donation from

a business corporation or labor organization.

Id. at 35,301. The FEC explicitly relied on the restrictions

inherent in section 501(c)(3) tax status to exempt those

organizations from the ban on the receipt of indirect

corporate contributions by a _ qualified nonprofit

corporation. It qualified that exemption on the continued

enforcement of the political campaign activity ban to

prevent a loophole from developing should tax law change

to remove this exemption.

Section 50l(c)(3) organizations are due _ similar

treatment under the electioneering communication

restriction. As explained above, section 501(c)(3)

organizations are structurally unable to air the "sham issue

ads" targeted by the electioneering communication

restriction; as a result, they pose no threat of either

28

corruption, or distortion of the political arena. Because

they cannot create political committees for use as a safe

harbor, the electioneering communication restriction acts

as a complete prior restraint during the electioneering

communication periods. The First Amendment does not

permit ihe electioneering communication restrictions to so

completely silent section 501(c)(3) organizations

Amici propose that when this Court crafts an as-applied

constitutional exception to the _ electioneering

communication restriction, it make clear that the provision

cannot be constitutionally applied to section 501(c)(3)

organizations that are barred by statute and regulation

from intervening in political campaigns, so long as the

following conditions are met: their tax status has been

approved by the IRS; they are operating within the bounds

of their tax status; and the broadcast or radio

communication in question is not political campaign

activity as defined by the IRS. Section 501(c)(3)

organizations face a dizzying array of _rules and

regulations to comply with IRS requirements. For such

organizations, making the bounds of the as-applied

exception coterminous with the tax restrictions already in

place simplifies an already too complicated regime.

In the wake of such guidance from the Court, the FEC

and the IRS can easily cooperate to issue joint

enforcement regulations if they deem it necessary. Indeed,

both agencies are already under a statutory mandate to

work together to promulgate “mutually consistent"

regulations, and to report their progress annually to

Congress. 2 U.S.C. § 438(f).

29

CONCLUSION

Amici, and section 501(c)(3) organizations generally,

must be able to speak and engage in constitutionally

protected grassroots lobbying whenever issues erupt in

Congress, even during the electioneering communication

periods. Section 501(c)(3) organizations were not the

target of BCRA's restriction on corporate speech, and

there is no legitimate case to be made that they threaten

any of the ills justifying corporate restrictions on political

speech; yet despite the initial efforts of the FEC to exempt

them, the broad wording of the statutory prohibition,

combined with these organizations’ inability to form

separate segregated funds, has resulted in a complete prior

restraint during most of the election year.

Amici urge this Court to consider the as-applied

challenge in this case and find in favor of Appellee, and

we support Appellee's right to conduct certain restricted

lobbying activities during the _ electioneering

communication periods. Yet the Court should also

consider the special circumstances presented by section

501(c)(3) organizations. In the case before it, this Court

has an opportunity to explain to the regulated community

the contours of the First Amendment protections for

nonprofit organizations. Amici urge the Court to take the

occasion to grant both clarity and relief to section

501(c)(3) organizations.

30

Respectfully submitted,

Robert F. Bauer

Counsel of Record

Kar! J. Sandstrom

Ezra W. Reese

PERKINS COIE

607 Fourteenth street, N.W.

Washington, D.C. 20005

(202) 628-6600

Counsel for Amici Curiae

APPENDIX

ADDITIONAL INTERESTS OF AMICI

National Organizations:

Alliance for Healthy Homes

The Alliance for Healthy Homes is a national, nonprofit,

public interest organization working to prevent and eliminate

hazards in our homes that can harm the health of children,

families, and other residents. These hazards include lead,

mold, carbon monoxide, radon, pests, and pesticides. The

Alliance is a tax-exempt organization under Section

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

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 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.

2

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.

Independence Institute

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

organization, founded 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 nonpartisan, nonprofit

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 I[nstitute’s work is carried out through

several Centers which are part of the Institute: the

Uducation 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

3

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 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

4

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 same

Congressperson the next week (such as for supporting

restrictions on a Bill of Rights freedom).

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

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

rights and freedoms for all through its network of 90,000

mei ibers, supporters, and volunteers nationwide.

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 midsized 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.

5

National Legal and Policy Center

The National Legal and Policy Center ("NLPC")

promotes ethics in public life through research, education

and legal action. NLPC is a 50l(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 nghts 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 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.

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.

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State Organizations:

California Association of Nonprofits

With over 1,800 members, the California Association

of Nonprofits ("CAN") mission is to: protect, strengthen

and advance the influence, accountability and

effectiveness of nonprofit organizations in a manner that

builds their capacity to accomplish their missions and

reserve and promote the idealism and value of nonprofit

organizations in California. The California Association of

nonprofits is a 501 (c) 3 public benefit corporation.

Nonprofit Coordinating Committee of

New York, Inc.

The Nonprofit Coordinating Committee of New York,

Inc., ("NPCC") is the voice and information source for

New York nonprofits. Established in 1984, NPCC

informs and connects nonprofit leaders, saves nonprofits

money, and strengthens the nonprofit sector’s relations

with government. NPCC publishes a monthly newsletter,

New York Nonprofits, offers workshops and roundtables

on management issues, provides cost-saving vendor

services, manages a Government Relations Committee

that works on sector-wide government and legislative

issues, and maintains a website loaded with information

on operating a nonprofit. NPCC has more than 1,400

dues-paying members in the New York City area.

The N.C. 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

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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.

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.