A group of 17 charities filed an amicus brief in the U.S. Supreme Court case Wisconsin Right to Life v. Federal Election Commission on March 23, urging the Court to protect the right of charities to broadcast grassroots educational and lobbying communications. Multiple amicus briefs have been filed on both sides of the case, which challenges the constitutionality of the "electioneering communications" rule in the Bipartisan Campaign Reform Act of 2002 (BCRA). The rule bans broadcasts that refer to federal candidates and are funded by corporations, including charities, 60 days before a general election and 30 days before a primary. The Court will hold oral argument on April 25, and a decision is expected in the summer or early fall, in time to clarify the law before the 2008 elections.

The charities' amicus brief argues charities and religious organizations do not pose a threat of corruption to the electoral system when they air grassroots lobbying broadcasts, since tax law requires them to remain nonpartisan in elections. As a result, they do not broadcast the type of "sham issue ads" that the McCain-Feingold law was meant to stop. It also argues that the "electioneering communications" rule is overbroad, since there are no exceptions for unpaid or nonpartisan broadcasts.

The case, which is reaching the Supreme Court for the second time, was brought by Wisconsin Right to Life (WRTL), a 501(c)(4) social action organization. In 2004, WRTL wanted to conduct a grassroots lobbying campaign urging Sens. Russ Feingold (D-WI) and Herb Kohl (D-WI) to oppose upcoming Senate filibusters of President Bush's judicial nominees. Because Feingold was up for re-election, the ads could not air 60 days before the election, which was when Congress was considering judicial nominations. WRTL filed suit challenging the constitutionality of the law, and the Federal Election Commission argued that, because the Supreme Court had upheld McCain-Feingold generally, WRTL could not challenge application of the rule to its grassroots lobbying effort. The Supreme Court ruled that WRTL could bring the challenge and sent the case back to the lower courts to consider the merits. WRTL won a favorable judgment in December 2006, and the FEC appealed.

Congressional supporters of grassroots lobbying rights are ready to push H.R. 71, the First Amendment Restoration Act. It would repeal the electioneering communications rule if the Supreme Court does not strike it down. It is sponsored by Rep. Roscoe Bartlett (R-MD), who spoke against the rule on the House floor on March 29, the fifth anniversary of passage of BCRA. He said it "limits a citizen's freedom of speech and freedom of association." Rep. Virginia Foxx (R-NC) also spoke out against the provision on March 27, saying the rule sends the wrong message to organizations, since it "communicates to them that they have no right to voice their views during elections."

The charities' amicus brief was written by attorneys Robert F. Bauer, Karl J. Sandstrom and Ezra W. Reese of the firm Perkins Coie. It is available online here. Charities that signed the brief are:

National organizations:

• Alliance for Healthy Homes
• American Conservative Union Foundation
• Center for Lobbying in the Public Interest
• Independence Institute
• Independent Sector
• NARAL Pro-Choice America Foundation
• National Council of Jewish Women
• National Council of Nonprofit Associations
• National Legal and Policy Center
• National Low Income Housing Coalition
• OMB Watch
• Violence Policy Center

State organizations:

• California Association of Nonprofits
• The Housing Alliance of Pennsylvania
• Nonprofit Coordinating Committee of New York, Inc.
• The North Carolina Center for Nonprofits
• Pennsylvania Association of Nonprofit Organizations