Commentary is rolling in on the WRTL decision... Rick Hassen has predicted that the corporate and union money will flood the 2008 election because of this ruling. Possible? I think so... but let's also remember that as sweeping of a ruling this is (essentially, the Court said if there's a reasonable interpretation that an ad is NOT influencing an election, it can't be regulated by BCRA... that's pretty broad), advertisements will still have to facially be about something other than elections. It's interesting that the Court ruled in a manner that went well beyond what WRTL was asking for... but that might be a bigger picture issue related to the new Court members.
Are we back to a pre-BCRA world for nonprofits who wish to advocate in and around election season? I'd argue it hasn't rolled back that far, but suffice to say that this ruling certainly reshuffles the deck in the constant struggle between our values of free speech and the right to express viewpoints (whether from corporations or not) versus our values of controlling campaign finance to limit the perception of corruption. This time, it seems, the Court has swung the pendulum back to the notion that we as a country would rather filter through the speech rather than limit the expression through campaign finance limitations.
One thing is clear. This debate has raged for over 31 years, and shows no signs of ebbing.
Monday, June 25, 2007
WRTL wins: issue ads now legal during election season
SCOTUSblog has the scoop... it was 5-4 and the dissenting Justices spoke at length (which seems to be a new thing on the Court).
Needless to say, there will be a LOT of analysis on this. I think this is a good thing in a sense, however, I think Congress needs to rethink the electioneering communications scheme to regulate what should be regulated and leave lobbying and other protected communications alone.
This is not the death of campaign finance reform... it is, however, the first time the reform legal theory has been knocked down by the Court in a while. We'll see how both sides react...
UPDATE: The Washington Post gives some additional details here.
UPDATE, Part Deux: Campaign Legal Center has posted the decision here.
Needless to say, there will be a LOT of analysis on this. I think this is a good thing in a sense, however, I think Congress needs to rethink the electioneering communications scheme to regulate what should be regulated and leave lobbying and other protected communications alone.
This is not the death of campaign finance reform... it is, however, the first time the reform legal theory has been knocked down by the Court in a while. We'll see how both sides react...
UPDATE: The Washington Post gives some additional details here.
UPDATE, Part Deux: Campaign Legal Center has posted the decision here.
Sunday, June 24, 2007
Nonprofit Law Podcast #2
Episode number 2 of the Nonprofit Law Podcast was just unleashed on the Internets... this week's topic is nonprofit startup tips. It came from a listener, so please feel free to contact me and give me your ideas for future shows at nplawcast.com!One-click subscribe in iTunes
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Pressuring disclosure of donors
I just came across this story on CNN regarding the Center for Responsive Politics call for the Center for Promise and Opportunity (John Edwards' anti-poverty charity) to release its donors to prove it wasn't electioneering. Let me be the first to call for the Center for Responsive Politics, a well-respected group, to stop preening for press based on a sack full of nothing.
They have a theory... the theory is that Edwards used the Center for Promise and Opportunity to jump start his presidential run without having to form an exploratory committee subject to FEC reporting requirements. The problem is that it's simply a theory based solely on Edwards' travel to a few early primary states that ignores - it seems - the other work done by the organization that fully complies with its charitable mission. Their allegation is thinly supported, and that's being kind.
In another article, former FEC chair Scott Thomas (not generally a staunch supporter of nonprofits) told a reporter that "there's nothing wrong with the approach Edwards took - so long as he did not conduct any campaign-like activities, such as disproportionate travel to early voting states or using funds to maintain a political staff." In other words, you need a lot more to prove this charity did anything wrong.
To ask for donors based on what the Center for Responsive Politics has is pretty remarkable... and not in a good way. The law protects the identity of donors to charities for a variety of reasons. People who give to charities have, often, relied on that for a long time. The Center for Responsive Politics should respect that and find some hard evidence of misuse of charitable resources before it tries to pressure a charity in the press to hand over private information. This is a seriously slippery slope (a term I hate to use)... the next charity targeted could be yours.
They have a theory... the theory is that Edwards used the Center for Promise and Opportunity to jump start his presidential run without having to form an exploratory committee subject to FEC reporting requirements. The problem is that it's simply a theory based solely on Edwards' travel to a few early primary states that ignores - it seems - the other work done by the organization that fully complies with its charitable mission. Their allegation is thinly supported, and that's being kind.
In another article, former FEC chair Scott Thomas (not generally a staunch supporter of nonprofits) told a reporter that "there's nothing wrong with the approach Edwards took - so long as he did not conduct any campaign-like activities, such as disproportionate travel to early voting states or using funds to maintain a political staff." In other words, you need a lot more to prove this charity did anything wrong.
To ask for donors based on what the Center for Responsive Politics has is pretty remarkable... and not in a good way. The law protects the identity of donors to charities for a variety of reasons. People who give to charities have, often, relied on that for a long time. The Center for Responsive Politics should respect that and find some hard evidence of misuse of charitable resources before it tries to pressure a charity in the press to hand over private information. This is a seriously slippery slope (a term I hate to use)... the next charity targeted could be yours.
Wednesday, June 20, 2007
Quietly waiting...
I am currently on a mini, semi-vacation in rural Virgina but managed to duck in a little coffee shop wi-fi access time to check in on Wisconsin Right to Life... looks like the next potential day for a decision is tomorrow, but it could be put off until next week. We'll see...
In the meantime, I'm hard at work (remember it's a mini, semi-vacation!) on the next episode of the Nonprofit Law Podcast... I hope to get it up by Friday.
In the meantime, I'm hard at work (remember it's a mini, semi-vacation!) on the next episode of the Nonprofit Law Podcast... I hope to get it up by Friday.
Friday, June 15, 2007
The new Form 990
The Chronicle of Philanthropy has a great article that breaks down the brand new, ink-still-wet Form 990. The highlights:
This is not the final form... the IRS is taking comments through September 14. If you're interested in checking out the draft, or in making comments go to the IRS draft 990 site and fire away. I'm still digesting the proposed changes... clearly the new form asks for more information, and I'm unsure what the practical utility is for some of these adds.
One last note... the proposed form will not go into effect until the 2008 tax year, so none of this really hits until 2009. Seems like it's far away, but it will be here before you know it!
- Lots of new schedules following a 10 page "core" form that all groups fill out
- Supplemental compensation information for the highly-paid executives of nonprofits (>$150k)
- A narative section for the most significant accomplishment for the year
- A new schedule devoted to fundraising
This is not the final form... the IRS is taking comments through September 14. If you're interested in checking out the draft, or in making comments go to the IRS draft 990 site and fire away. I'm still digesting the proposed changes... clearly the new form asks for more information, and I'm unsure what the practical utility is for some of these adds.
One last note... the proposed form will not go into effect until the 2008 tax year, so none of this really hits until 2009. Seems like it's far away, but it will be here before you know it!
Thursday, June 14, 2007
WRTL: Has Justice Alito shown his hand?
The Washington Post reports today that Justice Alito gave a speech warning about the threats to free speech to the National Italian American Foundation.
That sound you hear is the speculation machine in DC going to 11.
If Justice Alito sides with WRTL on the free speech side (as opposed to the campaign finance reform side of the FEC), that would most likely represent the reversing vote for the provision of McCain-Feingold that stops nonprofits from engaging in certain types of grassroots lobbying communications near elections. Remember Alito replaced O'Connor and she voted to support the general principle (for lack of a better term) of this portion McCain-Feingold a few years back.
I've long felt that this part of the law (the "electioneering communications" provision) was created with the best of intentions, but simply carved out more legitimate nonpartisan, nonpolitical speech than the Constitution allows. Unlike many of the people that I agree with on this issue, I am definitely not a supporter of election deregulation. Should the Court toss this out to the recycling bin, I hope there's a middle path to ensure election advertisements can be properly regulated while protecting the lobbying voices of nonprofit groups.
That sound you hear is the speculation machine in DC going to 11.
If Justice Alito sides with WRTL on the free speech side (as opposed to the campaign finance reform side of the FEC), that would most likely represent the reversing vote for the provision of McCain-Feingold that stops nonprofits from engaging in certain types of grassroots lobbying communications near elections. Remember Alito replaced O'Connor and she voted to support the general principle (for lack of a better term) of this portion McCain-Feingold a few years back.
I've long felt that this part of the law (the "electioneering communications" provision) was created with the best of intentions, but simply carved out more legitimate nonpartisan, nonpolitical speech than the Constitution allows. Unlike many of the people that I agree with on this issue, I am definitely not a supporter of election deregulation. Should the Court toss this out to the recycling bin, I hope there's a middle path to ensure election advertisements can be properly regulated while protecting the lobbying voices of nonprofit groups.
Tuesday, June 12, 2007
Nonprofit Law Podcast #1
Episode number 1 is up... just a lay of the land this week. Please feel free to contact me and give me your show ideas at nplawcast.com!One-click subscribe in iTunes
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Monday, June 11, 2007
WRTL update
SCOTUSblog and Rick Hassen report no ruling from the Supreme Court on everyone's favorite campaign finance case.... maybe next week.
Nonprofits should be interested in this if they engage in grassroots lobbying activity using broadcast ads... most don't, quite frankly. Still, it's an interesting view into what direction this Court is headed when it comes to the balance between advocacy rights and the need to regulate campaign finance.
Nonprofits should be interested in this if they engage in grassroots lobbying activity using broadcast ads... most don't, quite frankly. Still, it's an interesting view into what direction this Court is headed when it comes to the balance between advocacy rights and the need to regulate campaign finance.
New forms on the way
The IRS is about ready to unveil some new forms for nonprofits to fill out as a part of their annual reporting... no news yet on what they look like, but that's only fueling the speculation as to whether the new forms will be helpful or more of the same.
Back from New Orleans after a great weekend with the Waterkeeper Alliance. I gave a presentation on effective grassroots lobbying on Saturday and had a nice chance to meet some of the new programs' Keepers. I expect to do a segment on grassroots lobbying issues on a future edition of the Nonprofit Law Podcast, so stay tuned. Speaking of the podcast, I'll be posting episode #1 sometime this week...
Back from New Orleans after a great weekend with the Waterkeeper Alliance. I gave a presentation on effective grassroots lobbying on Saturday and had a nice chance to meet some of the new programs' Keepers. I expect to do a segment on grassroots lobbying issues on a future edition of the Nonprofit Law Podcast, so stay tuned. Speaking of the podcast, I'll be posting episode #1 sometime this week...
Friday, June 08, 2007
Countdown to WRTL
The Supreme Court is probably with a few weeks of releasing its holding in Wisconsin Right to Life... the Green Bay Press-Gazette has this story in advance. I mentioned the case in the latest Capital Caucus... the newest members of the Court may have to abandon their own stated principles of stare decisis in order to reverse aspects of McConnell and find for WRTL. It shall be interesting...
Wednesday, June 06, 2007
Waterkeeper Alliance conference
I'll be speaking this week at the Waterkeeper Alliance annual conference in New Orleans... the topic is the laws of grassroots lobbying for 501(c)(3)s. I hope to post the first edition of the Nonprofit Law Podcast while I am down there, but I expect blogging to be a bit on the light side.
Friday, June 01, 2007
IRS releases guidance on election activity
It's not my birthday, but the IRS just handed out a gift... precedential guidance on what 501(c)(3)s can do around election time.
Updating a fact sheet released early last year, the new Revenue Ruling covers a host of topics near and dear to charities that engage in advocacy around election time. Remember it's illegal for a charity to do anything that remotely supports or opposes a candidate for public office. Nonpartisan activities, however, are permissible (like voter guides, public debates, get-out-the vote drives, etc.). Charities can also engage in issue advocacy and general education activities so long as they do not connote support or opposition to any candidates. Individuals involved in charities are still free to engage in partisan activities on their own time, using their own resources, so long as the 501(c)(3) is not tapped for assistance.
I'll be covering some of the issues raised in the Revenue Ruling in one of the first few episodes of the Nonprofit Law Podcast. In the meantime, check out the Revenue Ruling here (PDF).
Updating a fact sheet released early last year, the new Revenue Ruling covers a host of topics near and dear to charities that engage in advocacy around election time. Remember it's illegal for a charity to do anything that remotely supports or opposes a candidate for public office. Nonpartisan activities, however, are permissible (like voter guides, public debates, get-out-the vote drives, etc.). Charities can also engage in issue advocacy and general education activities so long as they do not connote support or opposition to any candidates. Individuals involved in charities are still free to engage in partisan activities on their own time, using their own resources, so long as the 501(c)(3) is not tapped for assistance.
I'll be covering some of the issues raised in the Revenue Ruling in one of the first few episodes of the Nonprofit Law Podcast. In the meantime, check out the Revenue Ruling here (PDF).
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