Nonprofit Advocacy and Lobbying

INDEPENDENT SECTOR Letter to the Federal Election Commission Regarding Electioneering Communications

May 14, 2002

Mr. Lawrence H. Norton
General Counsel

Ms. Rosemary C. Smith
Assistant General Counsel
Federal Election Commission
999 E Street, N.W.
Washington, DC 20463

Dear Mr. Norton and Ms. Smith:

I am writing on behalf of INDEPENDENT SECTOR to advise you of an issue relating to the electioneering communications regulations currently being drafted by the Federal Election Commission under the Bipartisan Campaign Reform Act of 2002 (BCRA), Public Law 107-155.

INDEPENDENT SECTOR is a nonprofit, nonpartisan coalition of more than 700 national nonprofit organizations, foundations, and corporate philanthropy programs, collectively representing thousands of charitable groups in every state across the nation. Our mission is to promote, strengthen, and advance the nonprofit and philanthropic community to foster private initiatives for the public good. The vast majority of INDEPENDENT SECTOR’s members are organizations tax exempt under Section 501(c)(3) of the Internal Revenue Code (“Section 501(c)(3) organizations”), and it is the effect of the definition of electioneering communications on these organizations that have given rise to our concerns.

Immediately after the passage of BCRA by the House of Representatives, Representative Marty Meehan, one of the primary sponsors of the legislation, entered the enclosed statement into the Congressional Record. In his statement, he addressed the purpose of the fourth exception provided in the legislation to the definition of “electioneering communication.”

Representative Meehan noted that this exception exists to allow the Commission to exempt communications from the definition of “electioneering communications” which are wholly unrelated to an election. He urged the Commission to take cognizance of the standards that have been developed by the Internal Revenue Service in administrating the law governing organizations described in Internal Revenue Code Section 501(c)(3) when promulgating regulations under this exception. He also urged the Commission to promulgate such regulations within the time frame specified in the legislation for promulgating regulations generally.

Section 501(c)(3) organizations are already prohibited by federal tax law from engaging in any partisan electoral activities, including the partisan issue ads that the BCRA seeks to regulate. However, BCRA’s definition of “electioneering communications” is sufficiently broad that it encompasses—and, thus, BCRA would prohibit—a range of nonpartisan educational and advocacy communications clearly permitted for 501(c)(3)s and unrelated to elections. INDEPENDENT SECTOR therefore supports the expeditious creation of exceptions to the definition of electioneering communication which incorporate the standards developed by the Internal Revenue Service to distinguish between prohibited partisan electoral activities and permitted educational and advocacy activities under Section 501(c)(3).

Given the Commission’s timetable for promulgating regulations under the BCRA, INDEPENDENT SECTOR wanted to make sure that you were aware of Representative Meehan’s statement and this issue. We look forward to commenting on the proposed electioneering communications regulations. Please contact me if you have any questions about this letter. 

Sincerely,

Patricia Read
Vice President, Public Affairs
INDEPENDENT SECTOR 

Enclosure
cc: The Honorable Marty Meehan (w/ encl.)
Glen Shor, Legislative Director to Representative Meehan (w/ encl.)