[FoRK] Not so free speech
Gregory Alan Bolcer
gbolcer at endeavors.com
Tue Mar 30 17:02:39 PST 2004
1) Fairness Doctrine is FCC, not FEC. There's a differnece of 1 letter.
2) MoveOne was caught under current campaign finance laws for sending
out a candidate advocacy while claiming they were candidate agnostic.
3) It's no surprise that they are trying to save their collective asses with
this tripe as the fines could abolish the whole organization.
4) I think the words you are looking for are "Mayflower Doctrine" which
would probably be just as unconsitutional as current campaign finance laws.
5) I still think you are a complete idiot.
From: fork-bounces at xent.com on behalf of Contempt for Meatheads
Sent: Tue 3/30/2004 4:23 PM
Subject: [FoRK] Not so free speech
If they really wanted to solve the problem correctly, they'd just
re-institute the Doctrine of Fairness...
Begin forwarded message:
From: "Wes Boyd, MoveOn.org" <moveon-help at list.moveon.org>
Date: March 30, 2004 5:57:25 PM CST
Subject: Republicans trying to gag nonprofits
Dear MoveOn member,
Are you involved in a local or national non-profit or public interest
organization? As a leader or board director or member? Please read this
message carefully, because your organization could be facing a serious
The Republican National Committee is pressing the Federal Election
Commission ("FEC") to issue new rules that would cripple groups that
dare to communicate with the public in any way critical of President
Bush or members of Congress. Incredibly, the FEC has just issued -- for
public comment -- proposed rules that would do just that. Any kind of
non-profit -- conservative, progressive, labor, religious, secular,
social service, charitable, educational, civic participation,
issue-oriented, large, and small -- could be affected by these rules.
By the way, one thing FEC's proposed rules do not affect is the
donations you may have made in the past or may make now to MoveOn.org
or to the MoveOn.org Voter Fund. They are aimed at activist non-profit
groups, not donors.
Operatives in Washington are displaying a terrifying disregard for the
values of free speech and openness which underlie our democracy.
Essentially, they are willing to pay any price to stop criticism of
Bush administration policy.
We've attached materials below to help you make a public comment to
the FEC before the comment period ends on APRIL 9th. Your comment could
be very important, because normally the FEC doesn't get much public
Public comments to the FEC are encouraged by email at
politicalcommitteestatus at fec.gov
Comments should be addressed to Ms. Mai T. Dinh, Acting Assistant
General Counsel, and must include the full name, electronic mail
address, and postal service address of the commenter.
More details can be found at:
We'd love to see a copy of your public comment. Please email us a copy
at FECcomment at moveon.org.
Whether or not you're with a non-profit, we also suggest you ask your
representatives to write a letter to the FEC opposing the rule change.
Some key points:
- Campaign finance reform was not meant to gag public interest
- Political operatives are trying to silence opposition to Bush policy.
- The Federal Election Commission has no legal right to treat
non-profit interest groups as political committees. Congress and the
courts have specifically considered and rejected such regulation.
Please let us know you're calling, at:
In a non-election year, this kind of administrative overreach would
never find support. It goes far beyond any existing law or precedent.
It is a serious threat to the fundamental checks and balances in our
system. But because of an unholy alliance between a few campaign reform
groups and GOP partisans, this rule change could actually happen if we
don't act now.
I've attached more details below, prepared by our attorneys and by the
FEC Working Group -- a group of more than 500 respected non-profit
If you run a non-profit, don't assume this change doesn't apply to
you. First check out the EXAMPLES OF SPECIFIC CONSEQUENCES FOR
NONPROFIT GROUPS section below. It's outrageous.
Thanks for all you do,
March 30th, 2004
EXAMPLES OF SPECIFIC CONSEQUENCES FOR NONPROFIT GROUPS
Under the proposed rules, nonprofit organizations that advocate for
cancer research, gun and abortion restrictions or rights, fiscal
discipline, tax reform, poverty issues, immigration reform, the
environment, or civil rights or liberties - all these organizations
could be transformed into political committees if they criticize or
commend members of Congress or the President based on their official
actions or policy positions.
Such changes would cripple the ability of groups to raise and spend
funds in pursuit of their mission and could be so ruinous that
organizations would be forced to back away from meaningful
conversations about public policies that affect millions of Americans.
If the proposed rules were adopted, the following organizations would
be treated as federal political committees and therefore could not
receive grants from any corporation, even an incorporated nonprofit
foundation, from any union, or from any individual in excess of $5,000
- A 501(c)(4) gun rights organization that spends $50,000 on ads at
any time during this election year criticizing any legislator, who also
happens to be a federal candidate, for his or her position on gun
- A "good government" organization [§501(c)(3)] that spends more than
$50,000 to research and publish a report criticizing several members of
the House of Representatives for taking an all-expense trip to the
Bahamas as guests of the hotel industry.
- A fund [§527] created by a tax reform organization to provide
information to the public regarding federal candidates' voting records
on budget issues.
- A civil rights organization [§501(c)(3) or §501(c)(4)] that spends
more than $50,000 to conduct non-partisan voter registration activities
in Hispanic and African-American communities after July 5, 2004.
- An organization devoted to the environment that spends more than
$50,000 on communications opposing oil drilling in the Arctic and
identifying specific Members of Congress as supporters of the
legislation, if those Members are running for re-election.
- A civic organization [§501(c)(6)] that spends $50,000 during 2004 to
send letters to all registered voters in the community urging them to
vote on November 2, 2004 because "it is your civic duty."
Other potential ramifications include the following situations:
- A religious organization that publishes an election-year legislative
report card covering all members of Congress on a broad range of issues
would be unable to accept more than $5,000 from any individual donor if
the report indicated whether specific votes were good or bad.
- A 501(c)(3) organization that primarily encourages voter
registration and voting among young people will be required to
re-create itself as a federal PAC.
- A 501(c)(4) pro-life group that accepts contributions from local
businesses would break the law by using its general funds to pay for
any communications critical of an incumbent Senator's position on
abortion rights after the Senator had officially declared himself for
reelection more than a year before the next election.
- A 501(c)(3) civil rights group that has been designated as a
political committee can no longer hold its annual fundraiser at a
corporate-donated facility, and it must refuse donations or grants from
donors that have already given $5,000 for that year.
BRIEFING ON THE PROPOSED RULE CHANGES
Under federal campaign finance laws, federal "political committees"
must register and file reports with the FEC and can accept
contributions only from individual persons (and other federal
committees), and only up to $5,000 per year from any one donor ("hard
money"). The FEC is now proposing to redefine "political committee" to
include any group that:
1. Spends more than $1,000 this year on nonpartisan voter registration
or get out the vote activity or on any ad, mailing or phone bank that
"promotes, supports, attacks or opposes" any federal candidate; and
2. Supposedly has a "major purpose" of election of a federal candidate
as shown by:
(a) Saying anything in its press releases, materials, website, etc.
that might lead regulators to conclude that the group's "major purpose"
is to influence the election of any federal candidate; or
(b) Spending more than $50,000 this year or in any of the last 4 years
for any nonpartisan voter registration or get out the vote program, or
on any public communication that "promotes, supports, attacks or
opposes" any federal candidate.
What's more, any group that gets turned into a federal "political
committee" under these new rules has to shut down all its
communications critical of President Bush (or any other federal
candidate) until it sets up "federal" and "non-federal" accounts; and
raises enough hard money contributions to "repay" the federal account
for the amounts spent on all those communications since the beginning
These proposed rules would apply to all types of groups: 501(c)(3)
charitable organizations, 501(c)(4) advocacy organizations, labor
unions, trade associations and non-federal political committees and
organizations (so-called "527" groups, as well as state PACs, local
political clubs, etc.).
The new rules, including those that apply to voter engagement, cover
all types of communications -- not just broadcast TV or radio ads --
but messages in any form, such as print ads, mailings, phone banks,
email alerts like this one, websites, leaflets, speeches, posters,
tabling, even knocking on doors.
The FEC will hold a public hearing on April 14 & 15. Written comments
are due by April 5 if the group wants to testify at that hearing;
otherwise, by April 9. The FEC plans to make its final decision on
these proposed rules by mid-May and they could go into effect as early
as July, right in the middle of the election year, potentially
retroactive to January 2003.
It's clear that these rules would immediately silence thousands of
groups, of all types, who have raised questions and criticisms of any
kind about the Bush Administration, its record and its policies.
SOME TALKING POINTS
- The FEC should not change the rules for nonprofit advocacy in the
middle of an election year, especially in ways that Congress already
considered and rejected. Implementing these changes now would go far
beyond what Congress decided and the Supreme Court upheld.
- These rules would shut down the legitimate activities of nonprofit
organizations of all kinds that the FEC has no authority at all to
- Nothing in the McCain-Feingold campaign reform law or the Supreme
Court's decision upholding it provides any basis for these rules. That
law is only about banning federal candidates from using unregulated
contributions ("soft money"), and banning political parties from doing
so, because of their close relationship to those candidates. It's clear
that, with one exception relating to running broadcast ads close to an
election, the new law wasn't supposed to change what independent
nonprofit interest groups can do, including political organizations
(527's) that have never before been subject to regulation by the FEC.
- The FEC can't fix the problems with these proposed rules just by
imposing new burdens on section 527 groups. They do important issue
education and advocacy as well as voter mobilization. And Congress
clearly decided to require those groups to fully and publicly disclose
their finances, through the IRS and state agencies, not to restrict
their independent activities and speech. The FEC has no authority to go
- In the McConnell opinion upholding McCain-Feingold, the U.S. Supreme
Court clearly stated that the law's limits on unregulated corporate,
union and large individual contributions apply to political parties and
not interest groups. Congress specifically considered regulating 527
organization three times in the last several years - twice through the
Internal Revenue Code and once during the BCRA debate - and did not
subject them to McCain-Feingold.
- The FEC should not, in a few weeks, tear up the fabric of tax-exempt
law that has existed for decades and under which thousands of nonprofit
groups have structured their activities and their governance. The
Internal Revenue Code already prohibits 501(c)(3) charities from
intervening in political candidate campaigns, and IRS rules for other
501(c) groups prohibit them from ever having a primary purpose to
influence any candidate elections -- federal, state, or local.
- As an example of how seriously the new FEC rules contradict the IRS
political and lobbying rules for nonprofits, consider this: Under the
1976 public charity lobbying law, a 501(c)(3) group with a $1.5 million
annual budget can spend $56,250 on grassroots lobbying, including
criticism of a federal incumbent candidate in the course of lobbying on
a specific bill. That same action under the new FEC rules would cause
the charity to be regulated as a federal political committee, with
devastating impact on its finances and perhaps even loss of its
- The chilling effect of the proposed rules on free speech cannot be
overstated. Merely expressing an opinion about an officeholder's
policies could turn a nonprofit group OVERNIGHT into a federally
regulated political committee with crippling fund-raising restrictions.
- Under the most draconian proposal, the FEC would "look back" at a
nonprofit group's activities over the past four years - before
McCain-Feingold was ever passed and the FEC ever proposed these rules -
to determine whether a group's activities qualify it as a federal
political committee. If so, the FEC would require a group to raise hard
money to repay prior expenses that are now subject to the new rules.
Further work would be halted until debts to the "old" organization were
repaid. This rule would jeopardize the survival of many groups.
- The 4 year "look back" rule would cause a nonprofit group that
criticized or praised the policies of Bush, Cheney, McCain, or Gore in
2000, or any Congressional incumbent candidate in 2000 or 2002, to be
classified as a political committee now, even though the group has not
done so since then. This severely violates our constitutional
guarantees of due process.
- These changes would impoverish political debate and could act as a
de facto "gag rule" on public policy advocacy. They would insulate
public officials from substantive criticism for their positions on
policy issues. They would actually diminish civic participation in
government rather than strengthen it. This would be exactly the
opposite result intended by most supporters of campaign finance reform.
- The FEC's proposed rule changes would dramatically impair vigorous
debate about important national issues. It would hurt nonprofit groups
across the political spectrum and restrict First Amendment freedoms in
ways that are unhealthy for our democracy.
- Any kind of nonprofit -- conservative, liberal, labor, religious,
secular, social service, charitable, educational, civic participation,
issue-oriented, large, and small -- could be affected by these rules. A
vast number would be essentially silenced on the issues that define
them, whether they are organized as 501(c)(3), 501(c)(4), or 527
- Already, more than five hundred nonprofit organizations - including
many that supported McCain-Feingold like ourselves - have voiced their
opposition to the FEC's efforts to restrict advocacy in the name of
campaign finance reform.
FOR MORE INFORMATION
Resources on FEC Proposed Rule Changes Threatening Nonprofit Advocacy
FEC Working Group
>From two prominent reform organizations:
Soft Money and the FEC
Public Campaign Statement regarding FEC Draft Advisory Opinion 2003-37
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