Nos. 06-969 and 06-970

In the Supreme Court of the United States

_________

FEDERAL ELECTION COMMISSION,

Appellant,

v.

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

_________

SENATOR JOHN MCCAIN, ET AL.,

Intervenor-Appellants,

v.

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

_________

ON APPEALS

FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

_________

BRIEF OF A COALITION OF PUBLIC CHARITIES, 

AS AMICI CURIAE IN SUPPORT OF APPELLEE

_________

ROBERT F. BAUER

Counsel of Record

KARL J. SANDSTROM

EZRA W. REESE

PERKINS COIE LLP

607 Fourteenth Street, N.W.

Washington, D.C. 20005

(202) 628-6600

Counsel for Amici Curiae
TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ......................................1

A. OMB Watch .......................................................1

B. Independent Sector .............................................3

SUMMARY OF ARGUMENT..................................................5

C. Electioneering Restrictions Are Too Broad .........6

1. Electioneering Communication 

Prohibition Restricts 

Communications by 501(c)(3) 

Organizations..........................................6

2. Nonprofit Lobbying Is Protected 

under the First Amendment ................... 12

D. Section 501(c)(3) Organizations Cannot 

Intervene in Political Campaigns....................... 16

1. Section 501(c)(3) Organizations 

Are Prevented From Directly 

Intervening in Elections......................... 16

2. Section 501(c)(3) Organizations 

Are Prevented From Operating 

PACs..................................................... 20

E. Section 501(c)(3) Organizations Pose No 

Risk of Corruption or Distortion ....................... 22

F. The Court Should Permit Section 501(c)(3) 

Organizations To Operate Freely within the 

Limits of their Tax Structure............................. 24

CONCLUSION ....................................................................... 29
ii

TABLE OF AUTHORITIES

Cases

Buckley v. Valeo, 424 U.S. 1 (1976)............................19, 24

Cal. Motor Transp. Co. v. Trucking 

Unlimited, 404 U.S. 508 (1972) ..............................13

Christian Echoes Nat. Ministry, Inc. v. 

United States, 470 F.2d 849 (10th 

Cir. 1972) ...............................................................19

Electioneering Communications, 67 

Fed. Reg. 65,190 (Oct. 23, 2002) ............................8, 9, 26

FEC v. Beaumont, 539 U.S. 146 

(2003).....................................................................6

FEC v. Nat'l Right to Work Comm., 

459 U.S. 197 (1982)................................................25

First Nat'l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)................................................14

McDonald v. Smith, 472 U.S. 479 

(1985).....................................................................13

New York Times Co. v. Sullivan, 376 

U.S. 254 (1964).......................................................14

Pac. Gas & Elec. Co. v. Pub. Util. 

Comm'n, 475 U.S. 1 (1986).....................................14

Shays v. FEC, 337 F. Supp. 2d 28 

(D.D.C. 2004).........................................................9, 10, 16
iii

TABLE OF AUTHORITIES—Continued

United States v. Cruikshank, 92 U.S. 

542 (1876) ..............................................................13

US. V. UAW-CIO, 352 U.S. 567 (1957).......................25

Statutes

10 ILL. COMP. STAT. 5/9-1.14 ......................................17

2 U.S.C. § 434 ............................................................7

2 U.S.C. § 438 ............................................................10, 31

2 U.S.C. § 441a...........................................................25

2 U.S.C. § 441b ..........................................................passim

ALASKA STAT. § 15.13.400 .........................................17

Bipartisan Campaign Reform Act of 

2002 ("BCRA"), Pub. L. No. 107-

155, 166 Stat. 81 .....................................................passim

COLO. CONST. ART. XXVIII, § 2 ..................................17

FL. STAT. § 106.011 ....................................................17

GUAM CODE ANN. tit. 3, § 19112.1..............................17

HI. CODE R. § 11-207.6 ...............................................17

I.R.C. § 4911 ..............................................................15, 19, 20

I.R.C. § 4945 ..............................................................20
iv

TABLE OF AUTHORITIES—Continued

I.R.C. § 4955 ..............................................................18

I.R.C. § 501(c)(3)........................................................passim

I.R.C. § 501(h)............................................................19

I.R.C. § 527 ................................................................19, 20

I.R.C. § 7409 ..............................................................18

IDAHO CODE ANN. § 67-6602 ......................................17

N.C. GEN. STAT. § 163-278.90 ....................................17

OKLA. STAT. tit. 74, § 257:1-1-2..................................17

W. VA. CODE § 3-8-1A................................................17

WASH. REV. CODE § 42.17.020....................................17

Regulations and Rules

11 C.F.R. § 100.29 (2007)...........................................7, 8, 9

11 C.F.R. § 109.21 (2007)...........................................22

11 C.F.R. § 114.10 (2007)...........................................26

Treas. Reg. § 1.501(c)(3)-1 (2007)..............................17

Treas. Reg. § 1.501(c)(4)-1 (2007)..............................26

Treas. Reg. § 1.501(h)-1 (2007) ..................................18
v

TABLE OF AUTHORITIES—Continued

Treas. Reg. § 1.527-2 (2007).......................................17

Treas. Reg. § 56.4911-2 (2007)...................................13

Treatises

1 Blackstone's Commentaries (St. 

George Tucker ed., Philadelphia, 

Birch & Small 1803)...............................................14

2 STORY, COMMENTARIES ON THE 

CONSTITUTION OF THE UNITED

STATES (5th ed. 1891) .............................................15

Other Authorities

Electioneering Communications, 70 

Fed. Reg. 75,713 (Dec. 21, 2005)............................8, 9, 24

Exception for Certain "Grassroots 

Lobbying" Communications From 

the Definition of "Electioneering 

Communication," 71 Fed. Reg. 

52,295 (Sep. 5, 2006)..............................................10

Express Advocacy; Independent 

Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. 

Reg. 35,292 (July 6, 1995)......................................26, 27

I.R.S. Priv. Ltr. Rul. 96-52-026 (Dec. 

27, 1996).................................................................18
vi

TABLE OF AUTHORITIES—Continued

J.E. Kindell & J.F. Reilly, Election 

Year Issues, EXEMPT 

ORGANIZATIONS CONTINUING 

PROFESSIONAL EDUCATION 

TECHNICAL INSTRUCTION PROGRAM

335 (2002) ..............................................................21

Rev. Rul. 2004-6, 2004-1 C.B. 328 .............................19
INTEREST OF THE AMICI CURIAE

Amici1 are public charities, tax-exempt under section 

501(c)(3) of the Internal Revenue Code. Individual 

organizations' Statements of Interest are presented below.

A. OMB Watch

OMB Watch is the operating name of Focus Project, 

Inc., a nonprofit corporation organized under section 

501(c)(3) of the Internal Revenue Code. Its goal is to 

promote government accountability and citizen 

participation in public issues. It is guided by the belief 

that improving access to governmental decision-makers 

and energizing citizen participation will lead to a more 

just, equitable and accountable government, and a stronger 

society.

OMB Watch’s primary focus areas are the federal 

budget; nonprofit advocacy; government transparency and 

accountability; and legislation and regulations impacting 

economic justice, health, safety, and the environment. 

OMB Watch has a 17-person staff and a $1.7 million 

annual budget. On this modest budget it has had a 

significant impact. Over the years, it has played a 

leadership role on important federal policies, including 

regulatory reform measures, balanced budget 

constitutional amendments, and the estate tax. Roughly 

1 This brief is filed with the consent of all parties, as indicated 

by letters of consent filed with the Court. No counsel for a party 

authored this brief, in whole or in part. No person or entity other 

than the amici curiae, its members, or its counsel made a monetary 

contribution to the preparation or submission of this brief.
2

ninety percent of its revenue comes from foundations,

often in the form of project grants.

In order to be effective, OMB Watch must react quickly 

and flexibly to emerging policy debates. Changing 

congressional goals require it to shift from planned agenda 

items to unplanned ones. It often works through 

coalitions, and it places a high value on bridging the gap 

between Washington and the grassroots level, and 

energizing citizens at the community level. The coalitions 

OMB Watch leads connect it to scores of umbrella groups 

and national membership associations. They, in turn, 

distribute OMB Watch's materials to thousands of their 

respective constituents around the country.

When choosing how it will communicate, OMB Watch 

along with its coalition partners must select means of 

communication that are suitable to the task. For example, 

if the House of Representatives or the Senate unexpectedly 

schedules a vote of importance, time does not always 

allow for a direct mail or telephone campaign. Broadcast 

advertising may be the only way to influence the debate. 

OMB Watch and its coalition partners of nonprofit 

organizations take advantage of free and paid media 

efforts to spread their messages. If they cannot afford to 

pay for television or radio advertisements, they rely on the 

broadcasters' willingness to provide unpaid access.

Access is provided consistent with the broadcasters' legal 

obligation to operate in the public interest. OMB Watch 

and its coalition partners also hold press conferences or 

other informational events, some of which are covered by 

C-SPAN or local public interest channels. 

As a public charity, OMB Watch does not and cannot 

use these occasions to intervene in political campaigns. 
3

Nevertheless, in the course of a typical broadcast there 

will be regular references to clearly identified 

officeholders who may also be candidates for federal 

office. Indeed, it is impossible for OMB Watch to avoid 

referring to federal candidates, given that the key decisionmakers on the issues it seeks to affect are almost always 

qualified as candidates under federal campaign finance 

law. Almost invariably, the sponsor of the legislation 

discussed or the executive who has initiated the policy 

debate is also a federal candidate.

Because OMB Watch is a public charity, it does not 

have the option of speaking through an affiliated political 

committee. As a result, due to the electioneering 

communication restrictions, it has only two choices: stay 

silent or risk prosecution.

B. Independent Sector

Independent Sector ("IS"), a nonprofit corporation 

organized under section 501(c)(3) of the Internal Revenue 

Code, is the leadership forum for charities, foundations,

and corporate giving programs committed to advancing 

the common good in America and around the world. Its 

nonpartisan coalition leads, strengthens, and mobilizes the 

charitable community in order to fulfill its vision of a just 

and inclusive society of active citizens, vibrant 

communities, effective institutions, and healthy 

democracy. Independent Sector's membership of 575

organizations collectively represents tens of thousands of 

charitable groups serving every cause in every region of 

the country, as well as millions of donors and volunteers.

IS serves as the premier meeting ground for the leaders 

of America’s charitable and philanthropic sector. Since its 

founding in 1980, IS has sponsored ground-breaking 
4

research; fought for public policies that support a 

dynamic, independent sector; and created resources so 

staff, boards, and volunteers can improve their 

organizations and better serve their communities. IS 

fulfills its mission by convening sector leaders to work 

together on key issues; promoting policies that enable the 

charitable community to engage with public officials on a 

nonpartisan basis; supporting the development and 

dissemination of strategies to strengthen volunteering, 

voting, giving, and other forms of citizen engagement; 

encouraging the sector to meet the highest standards of 

ethical practice and effectiveness; and serving as the voice 

of the charitable community to the media, government, 

business, and international voluntary communities.

IS is currently engaged in a broad range of public 

policy issues ranging from federal and state regulation of 

charitable organizations, federal tax and spending policies, 

federal tax incentives for charitable giving, and protecting 

the advocacy rights of nonprofit organizations. The 

majority of its members are 501(c)(3) organizations that 

may not participate in, or intervene in any political 

campaign on behalf of (or in opposition to) any candidate 

for public office, but these organizations frequently 

engage in advocacy efforts to inform public policy debates 

on issues that affect their constituents' and their ability to 

fulfill their charitable purposes.

These advocacy efforts at times include 

communications with elected officials in their current

capacity as representatives of the people, whether or not 

they are, at the same time, candidates for federal office. 

Organizations cannot predict or control the timing of when 

an issue will be considered by public officials. Some of 

IS's member organizations, for example, are concerned 

about the possibility of estate tax repeal because of the 
5

negative effect that would have on charitable giving. 

Their ability to encourage the public to contact their 

elected officials about a pending vote on the estate tax 

would be curtailed if the vote was scheduled during an 

election period. IS members may find it necessary to run 

ads asking a local official to keep a particular shelter open, 

even though the official is also a candidate for federal 

office. IS members have called on the public to contact 

their congressional representatives about pending votes 

that affect the funding and eligibility requirements for 

specific government programs related to charitable 

purposes ranging from human services to health to the 

arts.2

SUMMARY OF ARGUMENT

The electioneering communication restriction of the 

Bipartisan Campaign Reform Act of 2002 ("BCRA"), Pub. 

L. No. 107-155, 166 Stat. 81, 91 (codified at 2 U.S.C. 

§ 441b(c)), is overbroad as applied to organizations 

granted tax exemption by the Internal Revenue Service 

("IRS") under section 501(c)(3) of the Internal Revenue 

Code ("the Code"). Sections 203 and 204 of BCRA were 

designed to prevent only "sham issue ads," which are "the 

functional equivalent of express advocacy." McConnell v. 

FEC, 540 U.S. 93, 185, 206 (2003). Organizations such as 

amici, organized and operating under section 501(c)(3) of 

the Code, are already subject to severe restrictions, 

enforced by the Code and United States Treasury 

regulations, preventing them from intervening in political 

campaigns. In light of these restrictions, the 

2 Additional Interests of Amici are included in the Appendix to 

this brief.
6

electioneering communication prohibition serves no 

compelling state interest when applied to charitable 

organizations. Moreover, section 501(c)(3) organizations 

do not enjoy the alternative of establishing federallyregistered political committees ("PACs") to speak freely 

within the electioneering communication period, an option 

this Court found critical when rejecting a facial challenge 

to the electioneering communication restriction on 

corporate speech. See id. at 204 (citing FEC v. Beaumont, 

539 U.S. 146, 163 (2003)).

When considering when the First Amendment requires 

an as-applied exception to the electioneering 

communication restrictions, this Court should consider 

and rely on the unique restrictions on section 501(c)(3)

organizations, already strictly enforced by the IRS, that 

make it impossible for them to the sponsor sham issue ads 

targeted by BCRA, and permit them to speak freely so 

long as they honor the boundaries mandated by their taxexempt status.

C. Electioneering Restrictions Are Too Broad

1. Electioneering Communication Prohibition 

Restricts Communications by 501(c)(3)

Organizations

Among other significant changes in federal election 

law, BCRA amended 2 U.S.C. § 441b to prohibit 

corporations and labor unions from making a payment for 

an "electioneering communication." 2 U.S.C.

§ 441b(b)(2). The prohibition applies to all corporations, 

including 501(c)(3) organizations that incorporate solely 

for liability purposes. It bars electioneering 

communications by charitable corporations even when 
7

paid for with funds contributed only by individuals. See 

id.§ 441b(c)(2), (6).

The definition of an "electioneering communication" 

includes "any broadcast, cable, or satellite 

communication" that "refers to a clearly identified 

candidate for Federal office," that is made 30 days before 

a primary election, or 60 days before a general election,

and that can be received by 50,000 or more persons in the 

relevant district or state. Id. § 434(f)(3)(A), (C).

3

For candidates for President and Vice President, the 30-

day electioneering communication period before the 

primary election will differ from state to state, due to the 

presidential primary schedule that begins with the Iowa 

caucuses on January 14, 2008; the electioneering 

communication period also includes the 30 days before 

each national political party convention and the days of 

the convention itself. See 11 C.F.R. § 100.29(a)(3)(ii)(A)

(2007). Though the primary dates are not yet finalized for 

either the Democratic or Republican parties, the 

presidential primary calendar will likely result in an 

almost continual electioneering communication blackout 

period for the nationwide reference of presidential 

candidates between December 15, 2007, and the end of 

each party's national convention.

3 The statutory scheme only includes the "received by 50,000 

persons" limitation for electioneering communications that 

reference a candidate for Senator or Representative to Congress; 

the Federal Election Commission, by regulation, has also applied 

this limitation to communications that reference candidates for 

President or Vice President. See 11 C.F.R. § 100.29(a)(3)(ii) 

(2007).
8

The definition of "clearly identified" is defined, by 

Federal Election Commission ("FEC") regulation, to 

include a candidate's name or photograph; it also includes 

communications in which "the identify of the candidate is 

otherwise apparent," including terms such as the term 

"your Congressman." 11 C.F.R. § 100.29(b)(2). 

Surprisingly, it even includes a reference to a popular 

name of legislation identified by the sponsors' name. See

Electioneering Communications, 67 Fed. Reg. 65,190, 

65,200-201 (Oct. 23, 2002). Thus, a reference to 

"McCain-Feingold," made on television or radio within 

the electioneering communication period, is considered an 

"electioneering communication" under BCRA and the 

promulgated regulations.

In its implementing regulations, the FEC limited the 

definition of an electioneering communication to a 

communication "disseminated for a fee." The FEC 

explained that BCRA's "legislative history abundantly 

documents that paid advertisements were the focus of the 

electioneering communication provisions." 67 Fed. Reg.

at 65,192. However, that limitation was challenged in the 

United States District Court for the District of Columbia, 

which found that the exception was inconsistent with the 

plain meaning of the statute. Shays v. FEC, 337 F. Supp. 

2d 28, 129 (D.D.C. 2004), aff'd, Shays v. FEC, 414 F.3d 

76, 109 (D.C. Cir. 2005). Subsequently, the FEC revised 

its regulation to remove this exception. See Electioneering 

Communications, 70 Fed. Reg. 75,713, 75,715 (Dec. 21, 

2005).

The original electioneering communication regulations 

also contained an exception for any communication that is 

"paid for by any organization operating under section 

501(c)(3) of the Internal Revenue Code of 1986." 67 Fed. 

Reg. at 65,200. The FEC reasoned:
9

Section 501(c)(3) organizations are barred as a 

matter of law from being involved in partisan 

political activity. The Commission believes the 

purpose of BCRA is not served by discouraging 

such charitable organizations from participating in 

what the public considers highly desirable and 

beneficial activity, simply to foreclose a theoretical 

threat from organizations that has not been 

manifested, and which such organizations, by their 

very nature, do not do.

Id. The FEC noted: "Should the Internal Revenue Service 

determine, under its own standards for enforcing the tax 

code, that an organization has acted outside its 501(c)(3)

status, the organization would be open to complaints that it 

has violated or is violating Title II of BCRA." Id. The 

FEC also pledged to work with the IRS to promulgate 

mutually consistent rules and regulations, as they are 

required to do by statutory mandate. See 2 U.S.C. 

§ 438(f).

This regulatory exception was also challenged in Shays

v. FEC; the court held that it violated the Administrative 

Procedures Act. See Shays, 337 F. Supp. 2d at 127. The 

FEC thereafter revised the electioneering communication 

definition to remove this exception for charitable 

organizations. See 70 Fed. Reg. at 75,714.

To provide an avenue for the broadcast of genuine 

nonpartisan lobbying communications, a coalition of 

organizations described in section 501(c) of the Code, 

including OMB Watch, filed with the FEC a Petition for 

Rulemaking on February 16, 2006. The Petition requested 

that the FEC revise 11 C.F.R. § 100.29 to permit

"grassroots lobbying" communications. The petition 

requested an exception from the "electioneering 
10

communication" definition, based on the following six 

factors:

(1) "The 'clearly identified federal candidate' is an 

incumbent public officeholder;" (2) "The 

communication exclusively discusses a particular 

current legislative or executive branch matter;" (3) 

"The communication either (a) calls upon the 

candidate to take a particular position or action 

with respect to the matter in his or her incumbent 

capacity, or (b) calls upon the general public to 

contact the candidate and urge the candidate to do 

so;" (4) "If the communication discusses the 

candidate’s position or record on the matter, it does 

so only by quoting the candidate’s own public 

statements or reciting the candidate’s official 

action, such as a vote, on the matter;" (5) "The 

communication does not refer to an election, the 

candidate’s candidacy, or a political party;" and (6) 

"The communication does not refer to the 

candidate’s character, qualifications or fitness for 

office."

Exception for Certain "Grassroots Lobbying" 

Communications From the Definition of "Electioneering 

Communication," 71 Fed. Reg. 52,295, 52,295 (Sep. 5, 

2006).

4 On August 29, 2006, the FEC voted to decline the 

petitioners' request, noting that the litigation in the case 

presently before this Court "may provide the Commission 

4 Amici believe that FEC regulatory action could alleviate but 

not cure the constitutional injury occasioned by the overbreadth of 

the electioneering communication ban as applied to charitable 

organizations.
11

with guidance on whether and how the Commission 

should exercise its discretion in this area." Id. at 52,296.

As a result, the current statutory and regulatory regime 

provides no avenue for a section 501(c)(3) organization 

that wishes to reference a federal candidate on radio or 

television during the electioneering communication period

to do so. It matters not that the content is entirely neutral 

and nonpartisan and devoid of electoral content. It matters 

not that the organization is statutorily forbidden to attempt 

to influence the election.5 And it matters not that the 

organization's communication is broadcast for free as a 

public service announcement or on public access 

television or radio.

The electioneering communication restriction, as 

enacted by Congress, prohibits a section 501(c)(3)

organization from airing a grassroots lobbying 

communication that asks listeners to contact their Member 

of Congress, even if the communication says nothing 

about the Member's position on the issue. The restriction 

requires a public charity sponsoring a C-Span nationally 

televised educational conference to instruct speakers that 

they may not mention a federal officeholder or candidate, 

or even the phrase "your Congressman," if the conference 

will be in the 30 days before any congressional primary or 

in the 60 days before the general election. The restriction

prohibits a church from broadcasting a service in which a 

candidate may be in attendance during the electioneering 

communication period before that candidate's election.

Indeed, the electioneering communication restriction 

goes so far as to prevent a section 501(c)(3) organization

5 See section D, infra.
12

from holding a symposium, nationally televised on CSpan, on the very topic of this brief. BCRA is commonly 

known as the "McCain-Feingold" legislation. Senator 

McCain is a candidate for nomination for President from 

the Republican Party. Due to the series of presidential 

nominating contests, the electioneering communication

period for the primary elections will be in place 

somewhere in the country almost continuously beginning 

on December 15, 2007. These restrictions do not end until 

the day after the Republican National Convention, the 

very day the sixty-day period before the general election 

begins. Thus, an educational institution's discussion of 

this very case must wait until after November 4, 2008, if it

will be carried nationally via a public access television or 

radio station.

The electioneering communication restriction prevents 

wide swaths of educational and nonpartisan speech by 

section 501(c)(3) organizations. Against the powerful 

First Amendment interests of these organizations, the 

absolute ban on corporate electioneering communications

cannot stand.

2. Nonprofit Lobbying Is Protected under the 

First Amendment

"Congress shall make no law respecting . . . the right of 

the people . . . to petition the Government for a redress of 

grievances." U.S. Const. amend. I. This right is "implicit

in '[t]he very idea of government, republican in form.'" 

McDonald v. Smith, 472 U.S. 479, 482 (1985) (quoting 

United States v. Cruikshank, 92 U.S. 542, 552 (1876)).

This Court has consistently held that the right to petition 

applies equally to all branches of government. See Cal. 

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 

510 (1972).
13

For a representative democracy ceases to exist the 

moment that the public functionaries are by any 

means absolved from their responsibility to their 

constituents; and this happens whenever the 

constituent can be restrained in any manner from 

speaking, writing, or publishing his opinions upon 

any public measure, or upon the conduct of those 

who may advise or execute it.

1 Blackstone's Commentaries editor's app. at 297 (St. 

George Tucker ed., Philadelphia, Birch & Small 1803), 

quoted in New York Times Co. v. Sullivan, 376 U.S. 254, 

297 (1964) (Goldberg, J., concurring in result).

The First Amendment protects the right of corporations, 

as well as individuals, to petition the legislature through 

direct or grassroots lobbying. The discussion of 

government affairs "is the type of speech indispensable to 

decisionmaking in a democracy, and this is no less true 

because the speech comes from a corporation rather than 

an individual." First Nat'l Bank of Boston v. Bellotti, 435 

U.S. 765, 777 (1978). "The mere fact that the Chamber is 

a corporation does not remove its speech from the ambit of 

the First Amendment." Austin v. Mich. Chamber of 

Commerce, 494 U.S. 652, 657 (1990). Corporations also 

"contribute to the 'discussion, debate, and the 

dissemination of information and ideas' that the First

Amendment seeks to foster." Pac. Gas & Elec. Co. v. 

Pub. Util. Comm'n, 475 U.S. 1, 8 (1986) (quoting Bellotti, 

435 U.S. at 783).

The term "grassroots lobbying" is defined by regulation 

as "any attempt to influence any legislation through an 

attempt to affect the opinions of the general public or any 

segment thereof." Treas. Reg. § 56.4911-2(b)(2)(i) 

(2007). According to a survey of over 1,700 section 
14

501(c)(3) organizations conducted by OMB Watch in 

2002, seventy-eight percent of section 501(c)(3) 

organizations participate in policy debates through 

grassroots lobbying. The lobbying causes championed by 

section 501(c)(3) organizations are used to bring light to 

otherwise little-known issues, and to mobilize the public 

on issues of national public importance.

The grassroots lobbying efforts conducted by section 

501(c)(3) organizations fall squarely into the protection 

offered by the First Amendment. These lobbying 

campaigns are pure speech, directed at legislative officials 

and the public, with the sole purpose of affecting the shape 

and direction of public policy. These efforts are vital to a 

well-functioning democracy.6

Often lobbying efforts are undertaken in response to 

unanticipated legislative developments. These campaigns 

depend on speed and timeliness; their timing is completely 

dependent on when legislative issues arise. Section 

501(c)(3) organizations cannot simply put their efforts on 

hold during election years; the rolling primary calendar 

means that nationwide lobbying efforts are forbidden for 

much of the year. Moreover, if lobbying efforts cannot be 

unveiled contemporaneously with the timing of the 

legislative vote at issue, no matter when that vote occurs, 

6 "[The right of petition] would seem unnecessary to be 

expressly provided for in a republican government, since . . . [i]t is 

impossible that it could be practically denied until the spirit of 

liberty had wholly disappeared, and the people had become so 

servile and debased as to be unfit to exercise any of the privileges 

of freemen." 2 STORY, COMMENTARIES ON THE CONSTITUTION OF 

THE UNITED STATES 645 (5th ed. 1891).
15

the right to petition will be little more than an academic 

privilege.7

As noted above, in the wake of Shays v. FEC and the 

resulting revision of the electioneering communication

regulations, section 501(c)(3) organizations are limited not 

just with regard to their paid lobbying communications, 

but also for completely dispassionate educational 

programming that is broadcast for free on public access 

television or radio. These activities were not the focus of 

Congress when enacting BCRA, nor do they bear any 

threat of influencing federal elections. And yet the broad 

scope of 2 U.S.C. § 441b(c) restricts these activities just as 

completely. This prohibition on speech is not justified by 

the nonexistent threat of electoral influence posed by 

section 501(c)(3) organizations and the special statutory 

and regulatory restrictions imposed on them as a result of 

their tax status.

Amici are not completely silenced during the 

electioneering communication blackout periods. A 

corporation, including a charitable organization, may refer 

to a federal candidate in direct mail, over the telephone, on 

the Internet or in a pamphlet during a blackout period. 

These avenues of communication, however, are often 

more costly and less effective than broadcast 

communications. Amici are also concerned that Congress 

7

Indeed, legislators and lobbyists can easily take advantage of 

the blackout to enact legislation hostile to nonprofit organizations' 

interests, knowing that the nonprofit community will have 

difficulty mobilizing public opposition.
16

may extend, as several states already have,

8

the 

electioneering communication ban to other forms of 

communication. If the electioneering ban can be 

constitutionally applied to the broadcast communications 

of charitable organizations, there is no apparent reason 

why other means of communication would be entitled to 

greater constitutional protection.

D. Section 501(c)(3) Organizations Cannot 

Intervene in Political Campaigns

1. Section 501(c)(3) Organizations Are

Prevented From Directly Intervening in 

Elections

Section 501(c)(3) of the Code requires that 

organizations described there "not participate in, or 

intervene in (including the publishing or distributing of 

statements), any political campaign on behalf of (or in 

opposition to) any candidate for public office." I.R.C. 

§ 501(c)(3); see also id. § 170(c)(2)(D). This prohibition

is absolute; the IRS does not permit section 501(c)(3) 

organizations from engaging in any political activity, even 

a de minimis amount. 

Any violation of this prohibition can result in an 

organization losing its tax-exempt status entirely. An 

8 See ALASKA STAT. § 15.13.400(5); COLO. CONST. ART.

XXVIII, § 2(7); FL. STAT. § 106.011(18); HI. CODE R. § 11-207.6; 

IDAHO CODE ANN. § 67-6602(f); 10 ILL. COMP. STAT. 5/9-1.14; 

N.C. GEN. STAT. § 163-278.90(2); OKLA. STAT. tit. 74, § 257:1-1-

2; WASH. REV. CODE § 42.17.020(20); W. VA. CODE § 3-8-

1A(10); see also GUAM CODE ANN. tit. 3, § 19112.1.
17

organization in violation of this restriction is also subject 

to fines; so is any individual manager of the organization 

who engaged in the activity knowing it was a political 

expenditure. Id. § 4955. Moreover, the IRS also has the 

authority, in the case of "flagrant" political campaign 

activity, to seek an injunction in federal court to prevent 

future political expenditures. Id. § 7409.

Section 501(c)(3) organizations must apply to the IRS for 

approval of their tax-exempt status. See I.R.C. § 508(a). 

As part of the application process, they must establish to 

the IRS's satisfaction that they can meet both the 

organizational and the operational limitations of section 

501(c)(3), including the prohibition on political activity.

See generally Treas. Reg. § 1.501(c)(3)-1.

The definition of political intervention is extremely 

broad. Communications that do not "expressly advocate 

the election or defeat of a clearly identified candidate," see

Buckley v. Valeo, 424 U.S. 1, 80 (1976), may still be 

found to be political intervention; the IRS examines "all 

the facts and circumstances" surrounding the 

communication to determine whether it is political in 

nature. Treas. Reg. § 1.527-2(c)(1); see, e.g., Christian 

Echoes Nat. Ministry, Inc. v. United States, 470 F.2d 849, 

856 (10th Cir. 1972), cert. denied, 414 U.S. 864 (1973).

Section 501(c)(3) organizations are also strictly limited 

in their total amount of grassroots lobbying. "No 

substantial part" of the activities of a section 501(c)(3) 

organization may be "carrying on propaganda, or 

otherwise attempting, to influence legislation." I.R.C. 

§ 501(c)(3). The actual amount varies, depending on 

whether an organization has elected a specific expenditure 

test, or whether it is subject only to the baseline 

"substantial part" test. See id. § 501(h); id. § 4911(c); 
18

Treas. Reg. § 1.501(h)-1(a). Lobbying in excess of the 

prescribed limits can result in a fine for those 

organizations subject to the expenditure test, see I.R.C. 

§ 4911, and revocation of the organization's tax-exempt 

status.9

The IRS has focused extensively on the political 

intervention prohibition in recent years, both by providing 

an increased level of guidance and by strengthening its 

enforcement activities. In December 2003, the IRS issued 

a revenue ruling that clarified, through examples, when a 

communication would be considered to be political 

intervention.10 The revenue ruling included six factors 

that "tend to show that an advocacy communication on a 

public policy" is, in fact, a political communication:

a) The communication identifies a candidate for 

public office;

b) The timing of the communication coincides with 

an electoral campaign;

c) The communication targets voters in a particular 

election;

9 Private foundations are even more restricted; they cannot 

engage in any lobbying activities at all. See id. § 4945(d)(1).

10 In fact, this revenue ruling technically addressed only when 

the activities of a section 501(c)(4), (5), or (6) organization would 

be deemed political intervention; these organizations may engage 

in limited amounts of political activity, subject to tax. See id.

§ 527(f). However, for most purposes, the IRS considers the 

inquiry to be the same. See I.R.S. Priv. Ltr. Rul. 96-52-026 (Dec. 

27, 1996). Thus, this revenue ruling is considered instructive on 

the political prohibition on section 501(c)(3) organizations.
19

d) The communication identifies that candidate's 

position on the public policy issue that is the 

subject of the communication;

e) The position of the candidate on the public 

policy issue has been raised as distinguishing the 

candidate from others in the campaign, either in 

the communication itself or in other public 

communications; and

f) The communication is not part of an ongoing 

series of substantially similar advocacy 

communications by the organization on the same 

issue.

Rev. Rul. 2004-6, 2004-1 C.B. 328. More recently, in 

February 2006 the IRS released a fact sheet with more 

examples of what the IRS does and does not consider to be 

political intervention. See I.R.S. News Release IR-2006-

36 (Feb. 24, 2006).

At the same time, the IRS released the initial results of its 

Political Activities Compliance Initiative. Through this 

process, the IRS conducted one hundred thirty-two field 

examinations of section 501(c)(3) organizations suspected 

of engaging in prohibited political campaign activity. The 

IRS also pledged "to provide more and better guidance 

and move quickly to address prohibited activities." See id.

It is now clear that the IRS is taking strong action to both 

clarify what constituted prohibited political campaign 

activity, and to take enforcement action against those 

organizations that violate the prohibition. As a result, 

section 501(c)(3) status – now more than ever – is an 

effective barrier to political campaign activity.
20

2. Section 501(c)(3) Organizations Are

Prevented From Operating PACs

When this Court upheld 2 U.S.C. § 441b(c) against a 

facial challenge, it noted: "in the future corporations and 

unions may finance genuine issue ads during those 

timeframes by simply avoiding any specific reference to 

federal candidates, or in doubtful cases by paying for the 

ad from a segregated fund." See McConnell, 540 U.S. at 

206. The Court was referring to the ability of a 

corporations or labor union to establish a federallyregistered separate segregated fund (a "PAC"), into which 

individual funds can be solicited from a corporation's 

stockholders and executive and administrative personnel, 

or from a labor union's members. See 2 U.S.C. § 441b(2). 

The ability of a corporation or labor union to engage in 

some political speech, albeit through constrained channels, 

was crucial to the Court's holding; it was also an important

factor when the Court found that the state of Michigan's 

ban on corporate political contributions was narrowly 

tailored. See Austin, 494 U.S. at 660 (noting that "the Act 

does not impose an absolute ban on all forms of corporate 

political spending but permits corporations to make 

independent political expenditures through separate 

segregated funds"). Indeed, even Appellant defends the 

absolute prohibition on electioneering communications by 

corporations by explaining: "A corporation or union 

remains free, moreover, to establish a separate segregated 

fund and to pay for electioneering communications in 

unlimited amounts from that fund." (Appellant Br. 7).

Section 501(c)(3) organizations, due to the prohibition 

on political campaign activity, are prohibited from taking 

advantage of this option. While the IRS has never made a 

formal ruling on this precise issue, the statutory and 

regulatory regime prevents a section 501(c)(3) 
21

organization from engaging in political activity, including 

creating a subsidiary political account. Informally, the 

IRS has so advised its agents and the regulated 

community. See J.E. Kindell & J.F. Reilly, Election Year 

Issues, EXEMPT ORGANIZATIONS CONTINUING 

PROFESSIONAL EDUCATION TECHNICAL INSTRUCTION 

PROGRAM 335, 344 (2002) (advising that "an IRC 

501(c)(3) organization may not . . . establish political 

action committees (PACs)").

Moreover, even if a section 501(c)(3) organization 

could form a political committee account solely to use as a 

safe harbor, it would ordinarily have extremely few 

individuals to solicit for contributions: there are no 

stockholders; the number of executive and administrative 

personnel are usually small in number; and section 

501(c)(3) organizations, unlike their brethren organized 

under section 501(c)(4), (5), or (6), are rarely organized as 

membership organizations. Thus, even if there were not a 

strong legal prohibition to the use of a separate segregated 

fund, there is an equally strong practical barrier.

The result is that section 501(c)(3) organizations are 

singled out for silence. Only these organizations, which 

are prohibited from partisan political intervention as a 

condition of their tax status, are completely barred from 

speaking during the electioneering communication 

periods. The irony could not be greater, because section 

501(c)(3) organizations do not pose any of the risks 

justifying the electioneering communication restrictions 

on corporate speech. 
22

E. Section 501(c)(3) Organizations Pose No Risk of 

Corruption or Distortion

This Court has only upheld the regulation of freedom of 

speech in the political sphere if justified by one of two 

compelling interests. The first is "corruption or the 

appearance of corruption," McConnell, 540 U.S. at 179; 

the second is "the corrosive and distorting effects of 

immense aggregations of wealth that are accumulated with 

the help of the corporate form." See Austin, 494 U.S. at 

660, quoted in McConnell, 540 U.S. at 205. Neither of 

these justifications can justify onerous restrictions on the 

lobbying and educational activities of section 501(c)(3)

organizations. 

Independent political expenditures do not "appear to 

pose dangers of real or apparent corruption comparable to 

those identified with large campaign contributions." 

Buckley, 424 U.S. at 46. The lobbying and educational 

efforts of section 501(c)(3) organizations, cabined within 

the IRS's strict prohibition against political campaign 

activity, pose even less of a danger. Moreover, because of 

the existing restrictions on coordinated communications, a 

section 501(c)(3) organization cannot distribute lobbying

or educational communications within the electioneering 

communication period that reference a federal candidate 

"in cooperation, consultation, or concert," with either that 

candidate or a political party. See 2 U.S.C. § 441a(a)(7); 

11 C.F.R. § 109.21.

11 Simply put, there is no legitimate 

11 No candidate or political party may request or suggest the 

communication; may be materially involved in the communication; 

may have a substantial discussion with the sponsor regarding the 

communication; or may use a common vendor or former employee 

to coordinate the communication. See id.
23

risk of corruption or the appearance thereof from the 

educational and lobbying activities of section 501(c)(3) 

organizations.

Nor does the lobbying and educational activity of 

section 501(c)(3) organizations raise "the prospect that 

resources amassed in the economic marketplace may be 

used to provide an unfair advantage in the political 

marketplace." FEC v. Mass. Citizens for Life, Inc., 479 

U.S. 238, 257 (1986). Section 501(c)(3) organizations 

cannot accumulate commercial wealth to dominate the 

political debate; their resources, by law, must be devoted 

to public purposes. They do not "exercise control over 

large aggregations of capitol," US. V. UAW-CIO, 352 U.S. 

567, 585 (1957); nor do they hold "substantial 

aggregations of wealth amassed by the special advantages 

which go to the corporate form of organization." FEC v. 

Nat'l Right to Work Comm., 459 U.S. 197, 207 (1982).

Quite to the contrary, section 501(c)(3) organizations often 

serve as a counterweight to the immense resources that 

corporations expend to influence government policy. 

Indeed, there is no evidence – none at all – to suggest 

that genuine section 501(c)(3) lobbying or educational 

activities are a vehicle for "the corrosive and distorting 

effects of immense aggregations of wealth that are 

accumulated with the help of the corporate form." Austin, 

494 U.S. at 660. Unlike "sham issue ads," which this 

Court found to be the "functional equivalent" of express 

advocacy, legitimate lobbying efforts are barred, by statute 

and IRS regulation, from being "intended to influence the 

voters' decisions." McConnell, 540 U.S. at 206. There is 

no evidence that section 501(c)(3) organizations produce 

the "bogus issue advertising" that was the focus of the 

electioneering communication restriction. See id. at 129. 

The evidence Congress compiled when passing BCRA, on 
24

which this Court relied heavily in upholding the 

electioneering communication restrictions, never 

referenced section 501(c)(3) organizations. See id. at 126-

32. More recently, the FEC found no evidence during its 

rulemakings that suggest sham issue ads sponsored by 

501(c)(3) organizations are a factor. See 70 Fed. Reg. at 

75, 714; 67 Fed. Reg. at 65,200.

F. The Court Should Permit Section 501(c)(3)

Organizations To Operate Freely within the 

Limits of their Tax Structure 

This Court, when upholding the electioneering 

communication restriction against a facial challenge, 

"assume[d] that the interests that justify the regulation of 

campaign speech might not apply to the regulation of 

genuine issue ads." McConnell, 540 U.S. at 206 n.88.

The Court is now faced with a group of organizations that, 

because of their tax status and rigorous IRS oversight, can 

only sponsor "genuine issue ads." When considering the 

contours of a First Amendment as-applied exception to the 

electioneering communication restriction, this Court 

should rely on that tax status to allow greater flexibility for 

section 501(c)(3) organizations.

There is precedent, in both the Court's interpretation of 

the corporate ban on expenditures and in the FEC's 

regulations, for reliance on tax status for increased First 

Amendment protection. Furthermore, the FEC has 

previously recognized that the political restrictions which 

are a condition of section 501(c)(3) status allow greater 

freedom for section 501(c)(3) organizations without the 

risk that they will use that freedom for political purposes.

In the case FEC v. Massachusetts Citizens for Life, Inc., 

this Court confronted an as-applied challenge to the 
25

statutory prohibition on corporate independent 

expenditures. It ruled that the First Amendment did not 

permit the prohibition to extend to the appellant. "We 

acknowledge the legitimacy of Congress' concern that 

organizations that amass great wealth in the economic 

marketplace not gain unfair advantage in the political 

marketplace. . . . [T]hat justification does not extend 

uniformly to all corporations." 479 U.S. at 263. The 

Court went on to explain the factors that differentiated the 

appellant from the commercial enterprises that remained 

bound by the statutory prohibition:

First, it was formed for the express purpose of 

promoting political ideas, and cannot engage in 

business activities. . . . Second, it has no

shareholders or other persons affiliated so as to 

have a claim on its assets or earnings. . . . Third, 

MCFL was not established by a business 

corporation or a labor union, and it is its policy not 

to accept contributions from such entities.

Id. at 263-64. The Court also cautioned, "should MCFL's 

independent spending become so extensive that the 

organization's major purpose may be regarded as 

campaign activity, the corporation would be classified as a 

political committee." Id. at 262.

When the FEC promulgated regulations to define the 

outer boundaries of this exception and what it meant to be 

an organization "formed for the express purpose of 

political ideas" but not one whose "major purpose may be 

regarded as campaign activity," it relied explicitly on the 

tax status of a corporation. A "qualified nonprofit 

corporation" that is exempt from the prohibition on 

corporate independent expenditures and electioneering 

communications must be, among other requirements, 
26

"described in 26 U.S.C. 501(c)(4)." 11 C.F.R. 

§ 114.10(c)(5). In its rulemaking, the FEC explained: 

"Section 501(c)(4) describes a class of organizations 

known as social welfare organizations that are exempt 

from certain tax obligations. . . . A corporation must be a 

social welfare organization in order to be exempt from the 

prohibition on independent expenditures." Express 

Advocacy; Independent Expenditures; Corporate and 

Labor Organization Expenditures, 60 Fed. Reg. 35,292, 

35,301 (July 6, 1995). The FEC reasoned that because 

section 501(c)(4) status permitted "a limited amount of 

political activity," but not so much that it becomes an

organization's primary purpose, the tax status of the 

organization should be made a requirement to the 

corporate expenditure exception. See id.; see also Treas. 

Reg. § 1.501(c)(4)-1(a)(2)(ii), (a)(2)(i).

There is also precedent in the FEC's regulations for the 

permissive treatment of section 501(c)(3) organizations 

due to the strict political activity prohibition enforced by

the IRS. As noted above, the Court in MCFL carved an 

exception only for nonprofit corporations that did not 

accept contributions from labor unions or business 

corporations. See 479 U.S. at 264. The FEC's definition 

of a "qualified nonprofit corporation" imported this 

concept, requiring that an organization "[d]oes not directly 

or indirectly accept donations of anything of value from 

business corporations, or labor organizations." See 11 

C.F.R. § 114.10(c)(4). However, there was a real concern 

that this clause would prevent qualifying organizations 

from receiving grants from section 501(c)(3) organizations 

that do accept contributions from business corporations 

and labor unions. And indeed, the FEC noted that as a 

general matter, "if a corporation accepts donations from an 

organization that accepts donations from these entities, the 
27

corporation will not be a qualified nonprofit corporation." 

60 Fed. Reg. at 35,300.

In the face of this worry, the FEC made a regulatory 

exception for section 501(c)(3) organizations. 

However, under IRS rules, section 501(c)(4) 

organizations that receive funds from a section 

501(c)(3) organization are required to use those 

funds in a way that is consistent with the section 

501(c)(3) organization's exempt purpose. Since 

political campaign intervention is never consistent 

with a section 501(c)(3) organization's exempt 

purpose, the recipient section 501(c)(4) 

organization is not supposed to use the grant for 

campaign activity. . . . So long as these safeguards 

exist, the Commission will not regard a grant from 

a section 501(c)(3) organization to a qualified 

nonprofit corporation as an indirect donation from 

a business corporation or labor organization. 

Id. at 35,301. The FEC explicitly relied on the restrictions 

inherent in section 501(c)(3) tax status to exempt those 

organizations from the ban on the receipt of indirect

corporate contributions by a qualified nonprofit 

corporation. It qualified that exemption on the continued 

enforcement of the political campaign activity ban to 

prevent a loophole from developing should tax law change 

to remove this exemption.

Section 501(c)(3) organizations are due similar 

treatment under the electioneering communication 

restriction. As explained above, section 501(c)(3) 

organizations are structurally unable to air the "sham issue 

ads" targeted by the electioneering communication 

restriction; as a result, they pose no threat of either 
28

corruption, or distortion of the political arena. Because 

they cannot create political committees for use as a safe 

harbor, the electioneering communication restriction acts 

as a complete prior restraint during the electioneering 

communication periods. The First Amendment does not 

permit the electioneering communication restrictions to so 

completely silent section 501(c)(3) organizations 

Amici propose that when this Court crafts an as-applied 

constitutional exception to the electioneering 

communication restriction, it make clear that the provision 

cannot be constitutionally applied to section 501(c)(3)

organizations that are barred by statute and regulation 

from intervening in political campaigns, so long as the 

following conditions are met: their tax status has been 

approved by the IRS; they are operating within the bounds 

of their tax status; and the broadcast or radio 

communication in question is not political campaign

activity as defined by the IRS. Section 501(c)(3) 

organizations face a dizzying array of rules and 

regulations to comply with IRS requirements. For such 

organizations, making the bounds of the as-applied 

exception coterminous with the tax restrictions already in 

place simplifies an already too complicated regime. 

In the wake of such guidance from the Court, the FEC 

and the IRS can easily cooperate to issue joint

enforcement regulations if they deem it necessary. Indeed, 

both agencies are already under a statutory mandate to 

work together to promulgate "mutually consistent" 

regulations, and to report their progress annually to 

Congress. 2 U.S.C. § 438(f).
29

CONCLUSION

Amici, and section 501(c)(3) organizations generally, 

must be able to speak and engage in constitutionally 

protected grassroots lobbying whenever issues erupt in 

Congress, even during the electioneering communication

periods. Section 501(c)(3) organizations were not the 

target of BCRA's restriction on corporate speech, and 

there is no legitimate case to be made that they threaten 

any of the ills justifying corporate restrictions on political 

speech; yet despite the initial efforts of the FEC to exempt 

them, the broad wording of the statutory prohibition, 

combined with these organizations' inability to form 

separate segregated funds, has resulted in a complete prior 

restraint during most of the election year.

Amici urge this Court to consider the as-applied 

challenge in this case and find in favor of Appellee, and 

we support Appellee's right to conduct certain restricted 

lobbying activities during the electioneering 

communication periods. Yet the Court should also 

consider the special circumstances presented by section 

501(c)(3) organizations. In the case before it, this Court

has an opportunity to explain to the regulated community

the contours of the First Amendment protections for 

nonprofit organizations. Amici urge the Court to take the 

occasion to grant both clarity and relief to section 

501(c)(3) organizations. 
30

Respectfully submitted,

Robert F. Bauer

Counsel of Record

Karl J. Sandstrom

Ezra W. Reese

PERKINS COIE

607 Fourteenth Street, N.W. 

Washington, D.C. 20005

(202) 628-6600

Counsel for Amici Curiae
APPENDIX
ADDITIONAL INTERESTS OF AMICI

National Organizations:

Alliance for Healthy Homes

The Alliance for Healthy Homes is a national, nonprofit, 

public interest organization working to prevent and eliminate 

hazards in our homes that can harm the health of children, 

families, and other residents. These hazards include lead, 

mold, carbon monoxide, radon, pests, and pesticides. The 

Alliance is a tax-exempt organization under Section 

501(c)(3) of the Internal Revenue Code.

American Conservative Union Foundation

The American Conservative Union Foundation 

("ACUF") is the educational and charitable arm of the 

American Conservative Union ("ACU"), the nation's 

oldest conservative lobbying organization. ACUF created 

the "Conservative University," designed to place all of the 

classic documents and books of the conservative 

movement in one, central location. The mission of the 

Conservative University is to train the next generation of 

conservative leaders nationally by providing them, in a 

systematic, easily available and focused manner, the 

intellectual tools necessary to become successful political 

and civic leaders. It is a mission that must be advanced or 

the movement will die. There are many things taught to 

conservatives but the specific mission here is to provide a 

fundamental core curriculum and set of ideas that can 

provide a lifetime guide to political and social decisionmaking.
2

Center for Lobbying in the Public Interest

The Center for Lobbying in the Public Interest 

promotes, supports and protects nonprofit advocacy and 

lobbying in order to strengthen participation in our 

democratic society and advance charitable missions. It 

accomplishes this mission through strategic messaging, a 

national training program, targeted resources housed on its 

website, www.clpi.org, and co-convening of left/right 

coalitions to expand and defend nonprofit advocacy rights.

Independence Institute

The Independence Institute is a 501(c)(3) educational 

organization, founded in 1985. Located in Colorado, it is a 

state-based think tank. The Independence Institute is 

established upon the eternal truths of the Declaration of 

Independence. The Institute is a nonpartisan, nonprofit 

public policy research organization dedicated to providing 

timely information to concerned citizens, government 

officials, and public opinion leaders. The Independence 

Institute is involved in local, state, national, and 

international issues. 

Much of the Institute’s work is carried out through 

several Centers which are part of the Institute: the 

Education Policy Center, the Health Care Policy Center, 

the Second Amendment Project, the Center for the 

American Dream, the Campus Accountability Project, and 

the Fiscal Policy Center. The work of all these Centers 

often intersects with policy questions being debated by 

Congress. 

The Independence Institute communicates with the 

public in a very broad variety of ways: through newspaper 

articles, television and radio programs, books, law review 

articles, presentations at scholarly conferences, legislative 
3

testimony, e-mail, podcasts, long monographs, and shorter 

research papers. For many years, the Independence 

Institute has also communicated with the public through 

radio advertising, one of the communications media which 

is censored by the speech restrictions enacted by Congress 

in 2002.

Radio advertising is a very important part of the 

Independence Institute’s educational mission. The 

Institute’s other means of communications (such as 

research papers and newspaper op-eds) are certainly 

important, but they reach only a small fraction of the 

public – a relatively elite fraction that already has a high 

pre-existing interest in policy questions. In contrast, radio 

advertising allows the Institute to communicate with a 

much broader group of the public. Such advertising 

allows the Institute to share its ideas with hundreds of 

thousands or millions of people whom, as a practical 

matter, the Institute has no other capacity to reach. 

Significantly, radio advertising allows the Institute to 

present its ideas in their purest form – without the 

limitations (and, sometimes, distortions) of those ideas 

being rephrased or selectively quoted by a reporter.

The speech restrictions imposed in 2002 chill the 

Independence Institute’s ability to communicate with the 

public about important federal questions during the thirty 

and sixty days censorship periods. The Independence 

Institute has no desire to advocate for the election of 

federal candidates (or, for that matter, state and local 

candidates). In twenty years, the Independence Institute 

has never done so. The Independence Institute has a 

perfect record of compliance with all federal, state, and 

local laws against candidate advocacy by non-profit

organizations. Indeed, because the Independence Institute 

is founded to advance particular ideas – namely the eternal 
4

truths of the Declaration of Independence, as applied to 

contemporary concerns – we will often praise a particular 

Congressperson one week (such as for voting against 

pork-barrel spending), and criticize the same 

Congressperson the next week (such as for supporting 

restrictions on a Bill of Rights freedom).

NARAL Pro-Choice America Foundation

NARAL Pro-Choice America Foundation's mission is 

to support and protect, as a fundamental right and value, a 

woman's freedom to make personal decisions regarding 

the full range of reproductive choices through education, 

training, organizing, legal action, and public policy.

National Council of Jewish Women

The National Council of Jewish Women, Inc. 

("NCJW") is a volunteer organization, inspired by Jewish 

values, that works to improve the quality of life for 

women, children, and families and to ensure individual 

rights and freedoms for all through its network of 90,000 

members, supporters, and volunteers nationwide.

National Council of Nonprofit Associations

The National Council of Nonprofit Associations 

("NCNA") is the network of state and regional nonprofit 

associations serving over 22,000 members in 46 states and 

the District of Columbia. NCNA links local organizations 

to a national audience through state associations and helps 

small and midsized nonprofits manage and lead more 

effectively; collaborate and exchange solutions; save 

money through group buying opportunities; engage in 

critical policy issues affecting the sector; and achieve 

greater impact in their communities.
5

National Legal and Policy Center

The National Legal and Policy Center ("NLPC") 

promotes ethics in public life through research, education 

and legal action. NLPC is a 501(c)(3) non-profit

foundation which has played an active role in the public 

policy debate regarding issues affecting governmental and 

public accountability. In furtherance of its mission, NLPC 

has been asked to testify on numerous occasions before

Congressional committees and has participated in public 

policy debates. NLPC strongly opposes restrictions which 

will have the effect of chilling First Amendment rights of 

non-profits to vigorously engage in public discussion on a 

wide array of issues which are being considered before 

Congress at any given time.

National Low Income Housing Coalition

The National Low Income Housing Coalition is 

dedicated solely to ending America’s affordable housing 

crisis. It believes that this is achievable, that the 

affordable housing crisis is a problem that Americans are 

capable of solving. While it is concerned about the 

housing circumstances of all low income people, it focuses 

its advocacy on those with the most serious housing 

problems, the lowest income households.

Violence Policy Center

The Violence Policy Center ("VPC") is a national 

educational organization that engages in research and 

policy development to prevent firearm-related death and 

injury in America. The VPC regularly communicates with 

grassroots organizations and individuals in an effort to 

educate the public, policymakers and the media, and to 

activate support for gun violence prevention strategies.
6

State Organizations:

California Association of Nonprofits

With over 1,800 members, the California Association 

of Nonprofits ("CAN") mission is to: protect, strengthen 

and advance the influence, accountability and 

effectiveness of nonprofit organizations in a manner that 

builds their capacity to accomplish their missions and 

reserve and promote the idealism and value of nonprofit 

organizations in California. The California Association of 

nonprofits is a 501 (c) 3 public benefit corporation.

Nonprofit Coordinating Committee of 

New York, Inc.

The Nonprofit Coordinating Committee of New York, 

Inc., ("NPCC") is the voice and information source for 

New York nonprofits. Established in 1984, NPCC 

informs and connects nonprofit leaders, saves nonprofits 

money, and strengthens the nonprofit sector’s relations 

with government. NPCC publishes a monthly newsletter, 

New York Nonprofits, offers workshops and roundtables 

on management issues, provides cost-saving vendor 

services, manages a Government Relations Committee 

that works on sector-wide government and legislative 

issues, and maintains a website loaded with information 

on operating a nonprofit. NPCC has more than 1,400 

dues-paying members in the New York City area.

The N.C. Center for Nonprofits

The N.C. Center for Nonprofits is a private, 501(c)(3) 

nonprofit organization that serves as a statewide network 

for nonprofit boards and staffs, an information center on 

effective organizational practices, and an advocate for the 

nonprofit sector as a whole. It offers services directly to 
7

all sizes and types of 501(c)(3) nonprofits, and it works 

closely with other local, state and national groups that 

assist nonprofits. It communicates regularly with its 

membership of more than 1,600 organizations on a wide 

variety of important issues.

Housing Alliance of Pennsylvania

Established in 1985, The Housing Alliance of 

Pennsylvania is a statewide membership organization 

working for a home within reach of every Pennsylvanian, 

especially those with low incomes. It conducts research, 

education and outreach to fulfill its mission.