Issue ads legal again

The DC Circuit Court of Appeals just handed down a 2-1 decision that will make things very interesting in federal election law... at least until the Supreme Court takes a look. The court in Wisconsin Right to Life v. FEC has held that electioneering communications regulatons cannot restrict groups from airing ads that are attempting to impact public policy... the argument WRTL sought was for a narrow grassroots lobbying exemption. The Supreme Court now has a chance to clarify the scope of the original McConnell decision upholding BCRA... Is this a reasonable exemption or is it a gigantic loophole? I think that remains to be seen... if the law only works by restricting legitimate lobbying communications, then perhaps it wasn't such a hot idea to begin with. To be continued.

I'll note again that I always considered BCRA to be the Election Lawyer Full Employment Act of 2002... that was both funny and true.

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UPDATE... Rick Hassen has more at the Election Law Blog here. Opinion is here (PDF).

Light blogging month

I will be serving on a DC grand jury this month, which will keep me away from some of the usual daily exposure to the political and podcasting world. I'm hoping to use some of the downtime to pull out some tips from the podcast expo, as promised, however!

Speaking of audio content... I was interviewed for Air America's State of Belief recently... feel free to listen here (mp3). I have a few other interviews floating about that I will eventually post someplace on the blog or elsewhere on the site. Never fear... I'll keep you posted.

Still a few more House seats open

Reminds me of this blast from the past, circa 2000.

Virginia recount reality check

Good morning to all bleary-eyed election return watchers! Looks like I was wrong about where the drama would unfold... I should have guessed Richmond. With Montana looking more and more like a Dem pickup, control of the Senate hinges on the Webb-Allen race.

Here's the scoop on the looming VA recount. First rule... stop listening to the people with the styled hair on tv. They're nice people, but they don't know a thing about the recount rules. Anything below 1% difference (abour 22,000 votes or so) and the loser may request a recount. Anything below .5% difference, and the loser can request a recount and the Commonwealth pays the bill. The recounts don't happen until after the vote is certified, which is 10 days after the election.

Of course by then it won't matter.

Huh? Wuh? Yeah... it won't matter. In Virginia, recounts are pretty much just running the numbers again, not a second look at the ballots. We learned that in the 2005 Attorney General race. So, where's the real battle? Today... during the final canvass. Whoever is up at the end of that is probably the next Senator from Virginia. Now, that won't stop some crafty lawyers from making the arguments that the ballots should be looked at again, but if last year is any indication, I don't expect that kind of argument to hold any water.

UPDATE... here's a great post from Ned Foley at Ohio State that summarizes the Montana law. Seems to me the procedure favors Tester at this point over Burns given his margins as reported by the Montana Secretary of State.

This town's apparently big enough for two Tim Mooney's

I kept having people mention how great I was on NPR on Wednesday. Problem was... I wasn't on NPR yesterday. Tim Mooney, however, was on NPR.

Confused? So were dozens of people I know throughout the country who swore they heard me in an interview regarding education funding. Mystery solved... Tim Mooney is a spokesperson for a group called First Class Education here in DC.

Have a good weekend everyone... and Tim? Ever consider going by Timothy? Just wondering...

Rick Hassen: Meet me in St. Louis(?)

Great post from Rick Hassen on where he thinks the greatest potential for election-related litigation that could impact the election... his choice is St. Louis, Missouri. I think he's right on the mark. While the stem cell research Measure 2 looks to be coasting to victory, the Senate race that seems to be tied to it is still neck and neck. All signs point to that seat possibly being the difference in which party has control of the Senate beginning in 2007.

My alternate nominee would be Nashville, Tennessee for similar reasons... the Tennessee Senate race is similarly close, and the Nashville suburbs may end up deciding the race. GOP candidate Bob Corker is from east Tennessee, Democratic candidate Harold Ford, Jr. is from Memphis to the west. That leaves Nashville - in the middle of the state - as another potential place for legal wranglings following a close and bitter campaign.

Stay tuned... election lawyers are (as always) standing by on both sides...

A bad cocktail

Earlier this year, IRS Commissioner Mark Everson called the mixing of politics, money and charities is, "a bad cocktail." He meant electoral politics, not issue or legislative politics, but the point was clear... charities need to steer clear of intervening in elections. He needs no other reason other than, 'cause tax law says so.

The Campaign Legal Center and Fran Hill have made some suggestions to stop some of the backsliding highlighted by uber-crook Jack Abramoff's improper use of charities, including Americans for Tax Reform. In short, they propose:

• eliminating exceptions in ethics rules, campaign finance laws or lobbyist registration laws for benefits channeled to politicians through nonprofit, tax-exempt entities
• any funds or benefits that a charity gives to a politician or a political committee should be traced back to the original contributor on regularly-filed disclosure reports
• politicians should be prohibited from raising money from third parties for charities they control, directly or indirectly
• politicians should accept absolutely nothing in return from organizations or any organizations related to charities they fundraise for
• an electronic database where members list all their contributions to charities, benefits they receive from charities and their leadership positions in such groups

Certainly an interesting proposal... the real question here is whether the traditional privacy afforded to donors to charities is outweighed by the desire/need for disclosure of certain transactions. If you believe Abramoff is an indicator species (ahh, there's that B.S. degree kicking in and making itself useful!) rather than an outlier, this might be a place to start the dialogue.

A break

As you know, I am a fan of the sublimely ridiculous Chad Vader videos on YouTube. Episode 4 is going big time, airing on GMA on October 11th. Check out the update from the creators here:

A nice diversion from some of the distubring stories out there...

RFK Jr. on voting machines

Another interesting piece from my former law professor on elections... this time on voting machines. This is a follow-up to his previous article Was the 2004 Election Stolen?. Check out, Will The Next Election Be Hacked? in the latest Rolling Stone.

IRS looking at churches

Interesting NYT article today:

I.R.S. Eyes Religious Groups as More Enter Election Fray

Of particular note:

“We became concerned in the 2004 election cycle that we were seeing more political activity among charities, including churches,” said Lois G. Lerner, the director for exempt organizations at the I.R.S. “In fact, of the organizations we looked at, we saw a very high percentage of some improper political activity, and that is really why we have ramped up the program in 2006.”

Churches are public charities, and for years have, to many, received a certain degree of a free pass from the IRS. After the release of Pub 1828 (PDF) and the PACI report (PDF) in February, the tide seems to be turning. It will be interesting to see how many religious organizations are the subject of audits for this election year. I have seen a lot of rather well-designed "how to avoid problems in your election-related activities" guides from left and right. It seems with the new attention, the faith-based community is also educating itself on the rules... which I chalk up as a good thing.

Charity or foundation?

The Washington Post called the world's largest private foundation a charity today. Seriously, not a big deal in the grand scheme of things... but also a fairly simple distinction.

Interesting how the terms "foundation" and "charity" are seemingly interchangeable, when they represent two very different types of entities. I suppose the foundation community might have spurred this on a bit by referring to grant-making public charities as "public foundations."

News of the day

Voting issues in MD and DC (about those electronic ballots...)

Colorado changes its rules (again)

Ohio, remarkably not imploding in the election-law sense... at least for today. Anything is possible with a Secretary of State policing his own gubernatorial election... we all know where I stand on that.

Also... Prof. Fran Hill lashes out at the IRS... for being too harsh on a nonprofit? Of course she's right in this instance, but I'm surprised by her stance to a certain degree. The last time I crossed paths with Fran -- whom I admire and respect greatly -- she was testifying before the FEC (PDF) that the IRS is not a good enough enforcer of its laws against 501(c)(3)s...

I know, I know... apples... oranges... just thought I'd mention it. It's that kind of blog post.

501(c)(3)s and elections

I just learned of this education opportunity for anyone wishing to learn more about the IRS rules on election-season activity by 501(c)(3) organizations. The teleclass is run by the IRS, and is broken up into two 1-hour sessions on September 19 and 20. For more information, check out the announcement here. Registration is required.

I will be producing a short session on election activity for 501(c)(3)s, and will post it here on the blog and at the nonprofit & political law section of tim-mooney.com within the next week or so. Stay tuned...

Chad Vader, Episode 3

A quick break from the world of nonprofit and political law to make way for the continuing saga of Chad Vader... Day Night Shift Manager

Breaking news... IRS rules in favor of NAACP

NAACP press release:

IMMEDIATE RELEASE

August 31, 2006
Contact: John C. White (410) 580-5125

IRS DETERMINES NAACP SHOULD RETAIN TAX EXEMPT STATUS

Investigation concludes Association did not violate tax laws or commit undue political intervention

The Internal Revenue has informed the National Association for the Advancement of Colored People (NAACP) that it has concluded its examination of NAACP activities and determined the Association did not violate conditions of its tax exempt status.

“We have determined that you continue to qualify as an organization described in IRC section 501(c)(3),” the IRS wrote in a letter to the NAACP dated Aug. 9. IRS official Marsha A. Ramirez said that a review of video footage of the Bond speech and other information indicated “that political intervention did not occur.”

The IRS launched an examination of the NAACP on October 8, 2004 after receiving complaints from several Republican members of Congress who said their constituents believed NAACP National Board of Directors Chairman Julian Bond crossed the line of non-partisanship in a speech at the NAACP 2004 National Convention critical of Bush administration policies.

“It’s disappointing that the IRS took nearly two years to conclude what we knew from the beginning: the NAACP did not violate tax laws and continues to be politically non-partisan,” said NAACP President and CEO Bruce S. Gordon. “Tax-exempt organizations should feel free to critique and challenge governmental policies under the First Amendment without fear of IRS intervention.”

“The good news is that we are vindicated,” said Bond. “The bad news for us and other freedom loving Americans is that it was initiated for partisan purposes to threaten our right to free speech. We’ll continue to speak truth to power.”

The IRS initiated an audit of the NAACP just one month before the 2004 presidential election and nearly three months before the end of the NAACP’s tax year. The IRS refused to explain the basis of its investigation for more than a year. The NAACP learned the basis for the examination only after filing four Freedom of Information ACT requests (FOIA).

The documents included complaints filed by Senators Lamar Alexander (R-Tenn.) and Susan Collins (R-Maine), then-Senator Strom Thurmond (R-S.C.), Representatives JoAnn Davis (R-Va.) and Larry Combest (R-Texas), then-Representatives Robert Ehrlich (R-Md.) and Joe Scarborough (R-Fla.) and political donor Richard Hug. In the interest of ensuring transparency, integrity and fairness in the administration of the tax law, the NAACP will release copies of all the documents provided thus far by request.

Founded in 1909, the NAACP is the nation’s oldest and largest civil rights organization. Its members throughout the United States and the world are the premier advocates for civil rights in their communities, conducting voter mobilization and monitoring equal opportunity in the public and private sectors.

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Nonprofit law news

The good folks over at Alliance for Justice publish a near-daily list of news items regarding nonprofit law over at their nonprofit advocacy blog. I've added their news feed in the sidebar here... click on a headline for more info on the news of the day!

FEC rejects exemption

Reject may a strong word, but they voted it down 3-3. You can listen to the hearing here. Most observers say the courts will be handling the larger issue of whether BCRA can restrict legit grassroots lobbying... they're probably right. On to the pundits and reform groups...

Bob Bauer

Campaign Legal Center

Democracy 21

grassroots lobbying exemption?

The FEC is considering a temporary exemption for specific grassroots lobbying communications as we head toward the fall elections. Many advocacy groups support this exemption, as it will allow them to rally constituents to call members of Congress on some important bills next month. Reform organizations are against the proposal, seeing it as a potential loophole in the campaign finance regulations.

Take a look at the proposed reg here. I've never been a big fan of the "support, oppose, attack" langauge... it's completely vague and difficult to figure out in the context of a lobbying campaign. Can a group be critical of a congressman's votes, or is that attacking? Still, having seen how some organizations take advantage of the gap between express advocacy and electoral impacts *cough-cough... 527s* it's easy to understand why Campaign Legal Center and Democracy 21 are opposed.

Middle ground? I'd like to think there is a way to craft a reg that allows legitimate lobbying to occur during the blackout windows... but to date, no one has found that magic mixture of vowels and constanants that would please both sides of this debate.

Read more from CLC and Bob Bauer...

Grand re-opening

Greetings, and welcome to the new digs! I'd like to give special thanks to Apple's iWeb for helping make this site far, far better looking than I could have ever hoped with my meager html and css skills. If you're still Mac-phobic, I strongly suggest you give Apple a second look... it's amazing what one can accomplish with their gear!

As promised, this blog will shift content a bit. I'll be using this space to chat about the law, nonprofits, advocacy, podcasting, and a variety of other topics. In the very near future, I'll be posting some other blogs and resources here as well. On top of all that, I'll post some fun things from time to time that are utterly unrelated to any of the above. I think the continuing saga of Chad Vader fits in that category...

So, thanks for hanging out here in the tim-mooney.com lounge. More to come...

A new tim-mooney.com

There will be some big changes here at tim-mooney.com within the next few days... stay tuned for the new look and new content. In the interim, I've stripped down the blog for a more austere vibe while I truck in the new carpet and drapes...