Update on Elections and Nonprofit Advocacy

Complaints filed against Jerry Falwell Ministries at the Internal Revenue Service (IRS) and the Federal Election Commission (FEC) allege that the organization illegally endorsed President Bush and solicited donations for a conservative political action committee. A bill to repeal the electioneering communications blackout of broadcasts referring to federal candidates within 60 days of an election or 30 days of a primary or convention is introduced in the Senate, as the Wisconsin Right to Life Committee sues to overturn application of the rule to their grassroots lobbying ads Falwell Ministries Accused of Partisan Electioneering In early July Jerry Falwell Ministries, a 501(c)(3) organization, posted an endorsement of President George Bush on its website and circulated it via an email newsletter, Falwell Confidential. Both messages included a solicitation of donations and link to a conservative political action committee, the Campaign for Working Families. Americans United for Separation of Church and State filed a complaint at the IRS July 15 requesting an investigation. On July 27 the Campaign Legal Center filed a complaint at the IRS alleging violation of the prohibition on intervention in elections for 501(c)(3) organizations and another complaint at the FEC alleging illegal general public endorsement and solicitation of contributions by a corporate entity. Falwell responded that the communications were paid for by a 501(c)(4) entity, the Liberty Alliance and that he was speaking as an individual and publisher and is legally entitled to express his views. However, the communications were made using corporate facilities, including the groups' shared website, which does not clearly distinguish between the 501(c)(3) and 501(c)(4) entities. It bears the name of the Jerry Falwell Ministries, the 501(c)(3), but in the About Us section says it is a project of the Liberty Alliance, the 501(c)(4). The Campaign Legal Center asked the IRS to "use its authority under Section 7409 of the tax code to enjoin Jerry Falwell Ministries Inc. from engaging in further direct express endorsements of any candidates for public office." Electioneering Communications Challenges A bill introduced in the Senate on July 21 by Sen. Saxby Chamblis (R-GA), S. 2702, would repeal the electioneering communications provisions of the Bipartisan Campaign Reform Act of 2002. It has five co-sponsors and has been referred to the Committee on Rules. The bill would effectively eliminate restrictions on broadcasts that refer to federal candidates within 60 days of an election or 30 days of a primary or party convention. On August 3, the Federal Election Commission accepted two Advisory Opinion requests seeking interpretation of the electioneering communications rule. The first involved Russ Darrow, a Republican candidate for U.S. Senate in Wisconsin. His request, AO 2004-31 seeks clarification on how the rule applies to advertisements for his business, which bears his name. The second request comes from Citizens United, whose request, AO 2004-30 seeks permission to air broadcasts publicizing a book about Presidential candidate John Kerry. The same group has previously filed a complaint against advertisements for Michael Moore's film Fahrenheit 9/11. On August 6, the FEC dismissed that complaint based on stipulations from Moore and the film's distributor that it had already planned to delete references to federal candidates from advertising during the blackout period. The Wisconsin Right to Life Committee has filed a lawsuit challenging application of the electioneering communications rule to grassroots lobbying ads it is airing now and wants to continue to run this fall. The ads urge the public to contact Sens. Russ Feingold and Herb Kohl, both Democrats, to end the filibuster against President Bush's judicial nominees. Feingold is running for re-election. The suit seeks an injunction against application of the rule to these facts, even though the Supreme Court upheld the general provisions of the law in McConnell v. FEC in December 2003. Wisconsin Right to Life is a 501(c)(4) organization that has endorsed Republican candidates. The three-judge panel considering the case held a status conference on August 5 and told the parties to attempt to negotiate stipulated activities that may eliminate the need for protracted litigation. The Wisconsin Right to Life Committee could use "hard" dollars, raised and spent subject to federal campaign finance regulations, to pay for the ads, but said they have only minimal funds in their regulated PAC account. The parties will report their progress to the court on August 9.
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