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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 449

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A18. Public record. Not legal advice.