September 30, 2004 | Read Time: 2 minutes
Washington
A U.S. District Court ruling last week has reopened the possibility that charities could be subject to new advertising restrictions in the weeks leading up to an election. The court ordered the Federal Election Commission to rewrite part of its regulations, a move that means new limits on what charities can say about politicians could take effect as soon as the 2006 election season.
The commission had previously said that charities — groups classified under Section 501(c)(3) of the Internal Revenue Code — were exempt from a rule that restricts paid broadcasts that mention clearly identified federal candidates from airing within 60 days of an election or 30 days of a primary or party convention. The commission reasoned that since tax laws already prohibit charities from electioneering, it did not need to further regulate such activity.
But the court disagreed. “It is the FEC, not the Internal Revenue Service, that is charged with enforcing” federal election law, wrote Judge Colleen Kollar-Kotelly, of the U.S. District Court for the District of Columbia. The IRS’s definition of political activity is not necessarily the same as the election commission’s, she said.
The judge also told the election commission to reconsider its exemption of the Internet from rules on election-related broadcasts — meaning that the limits on radio and television advertising could be expanded to include some online communications.
The election commission says it plans to appeal the decision.
The charity exemption was one of 15 guidelines that the court struck down in its rulings on regulations that had been developed by the commission to enforce a 2002 campaign-finance law.
No Effect in 2004
If the judge’s decision stands, it would probably mean that charities, like other nonprofit groups, would not be allowed to run ads on television or radio that mention federal candidates in the days near an election. But the decision does not affect ads running in this election cycle, most lawyers agree.
Some nonprofit leaders argue that charities should not be subject to campaign-finance limits because the rules would impinge on the groups’ missions and free-speech protections.
Nonprofit groups also fear that as the election commission reviews its rules related to charities, it could come up with new restrictions. For example, it might set strict limits on the way advertisements that mention politicians are financed or require charities to name the donors who helped pay for them.
Most troubling for now is the uncertainty created by the court’s decision, said Gary Bass, executive director of OMB Watch, a Washington watchdog group. “I don’t think we know where the rules will go,” he said.
The District Court opinion was in response to a lawsuit filed by Reps. Christopher Shays, a Connecticut Republican, and Martin Meehan, a Massachusetts Democrat, the two sponsors of the House version of the 2002 campaign-finance law.
Copies of the court’s 157-page opinion in the case, Shays-Meehan v. FEC, can be found online at http://www.fec.gov.
