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New Rules Threaten Political Advocacy by Nonprofits
Last spring, the Federal Election Commission (FEC) proposed new regulations that, if implemented, will affect the AAUP and other nonprofit organizations that advocate government policy changes. The agency initially planned to adopt the new rules in time for this year's electoral season. In May, however, following protests by nonprofit organizations, including the AAUP, the FEC announced that it would postpone its decision on the new rules until after November's elections.
Current federal election law prohibits nonprofit and other corporations and unions from making expenditures that support or oppose candidates for federal office under certain circumstances. Under the proposed new regulations, prohibited expenditures would include funding for public communications that even refer to an identified candidate for federal office (including an incumbent) and that "promote, support, attack, or oppose" that candidate or a political party. A national higher education group could not, for example, urge its members and the public to contact their representatives in Congress to advocate against an antitenure bill if the message could be read as criticizing a member of Congress (such as the bill's sponsor) during an election season.
And organizations could not direct their voter-registration activities toward a group that might be considered likely to prefer one candidate or party over another, even if the selected groups represent traditionally disenfranchised segments of the population.
In addition, the normal activities of some organizations could force them to become "political committees" under the proposed rules. A large organization such as Common Cause or the League of Women Voters could be considered a political committee if, for example, it spent $50,000 to promote a report that criticizes members of Congress for wasteful spending, or that urges all registered voters in a community to "get out and vote" on November 2. As political committees, these groups could become subject to strict contribution and expenditure restrictions and be barred from accepting foundation funding.
For these and other reasons, the AAUP joined other national associations in submitting comments on the proposed regulations prepared by the Alliance for Justice, the Leadership Conference on Civil Rights, People for the American Way, and others. Citing the famous 1964 Supreme Court case, New York Times v. Sullivan, in which the Court spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," the coalition's comments urged the FEC to withdraw the proposed rules as an unacceptable burden on free speech.
Specifically, the comments described how the proposed rules would impede the ability of nonprofit groups to engage in issue advocacy, register voters, and promote voter participation, activities that both Congress and the FEC have approved in the past. The comments also pointed out that the FEC exceeded its authority by seeking to expand rather than implement existing law.
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