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July 9,
2007
U.S. Supreme Court OKs Advocacy
And
Faith Funding
Both faith-based and secular charities were on the winning side of decisions made by the U.S. Supreme Court as it handed down its ruling before recessing for the summer.
The U.S. Supreme Court barred ordinary taxpayers from challenging the Bush administration's use of taxpayer dollars to fund its Office of Faith-Based and Community Initiatives. By removing taxpayers from the picture, the decision makes it harder to challenge government support of religion-related organizations.
In a separate decision, the high court upheld the free-speech rights of grassroots lobbying organizations, stopping the government from prohibiting nonprofits from running television ads in the days before a federal election.
 In Hein vs. Freedom From Religion Foundation, the court rejected 5-to-4 a lawsuit brought by the foundation (FFRF) against eight Bush administration officials, including the head of the White House Office of Faith-Based and Community Initiatives (WHOFBCI). The suit challenged the administration spending to promote the initiative.
FRFF, an association of atheists and agnostics based in Madison, Wisc., argued they had the right to sue based on a 1968 precedent that allowed ordinary taxpayers -- persons with no additional claim other than being a taxpayer -- to contest federal spending alleged to be in violation of the constitutional separation of church and state.
"We recognized a narrow exception to the general rule against federal taxpayer standing," Justice Samuel Alito wrote of the 1968 case Flast v. Cohen, which had been cited. In the present case, WHOFBCI was initiated by the president, not Congress, and therefore FFRF had no standing to sue, wrote Alito, who was joined in the plurality opinion written by Chief Justice John Roberts and Justice Anthony Kennedy.
Justices Antonin Scalia and Clarence Thomas and the dissenters -- Justices David Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer -- all rejected the tenability of the distinction, resulting in what is essentially a 3-2-4 decision which sets no clear precedent except that FFRF did not state a direct injury.
"If it's a line item in the budget in Congress, you can sue as a taxpayer. If it's a discretionary act of the president, you can't sue. It's ridiculous," said Barry W. Lynn, executive director of Americans United for Separation of Church and State. Added Lynn: "The ruling cuts out the possibility that some people with very legitimate grievances will be able to get into court to try to make their case." Americans United was among several nonprofits to file an amicus brief with the U.S. Supreme Court in support of the plaintiffs.
Candy Hill, senior vice president for social policy at Alexandria, Va.-based Catholic Charities USA, said she's pleased with the court's decision, but admitted the case wasn't much of a blip on the charity's radar. "If we felt that this court case would have significantly impacted -- the decision either way -- our ability to serve the poor in this country, we would have been more intentional in our involvement," she said. "But I didn't see that the case was casting a pale over the office or the work."
"The faith community represents approximately half of our associations in this country, half of our giving, and half of our volunteerism. It's just a healthy part of how the nonprofit sector operates," said Jay Hein, director of the WHOFBCI. Hein said it's a lack of understanding of how the sector works to wish for the faith-based segment to be diminished or sidelined by an over-reaching advocacy, "and that's what this lawsuit represented.
"We respect fully the Establishment Clause," added Hein, "and there are careful guidance, documents and terms that our office articulates to make sure that when government is in the business of procuring services, we do so with respect to church and state separation issues."
The WHOFBCI was established through executive order on January 29, 2001, as a policy office that would to add value, through training and capacity-building services, to the growing field of faith-based and community organizations. Hein said there are now centers for FBCI in 12 federal agencies, and 33 states have formed their own offices.
And when it comes to letting politicians knows how they stand, nonprofits no longer have to worry about what time of year it is before running grassroots lobbying ads.
By a 5-4 decision, the justices ruled in favor of Wisconsin Right to Life (WRTL), permitting nonprofits to lobby for their causes using television ads during a federal election season.
"Such nonprofits' efforts aren't intended to influence an election, but rather to do the necessary work to advance their charitable missions," said Elizabeth Heagy, president of the Center for Lobbying in the Public Interest in Washington, D.C. Heagy said she's hopeful the ruling "will settle the issue of issue advocacy during an election season for a while."
Liz Towne, director of advocacy programs at Alliance For Justice (AFJ), also in Washington, D.C., would like to see the Federal Election Commission (FEC) take the decision and modify regulations to "somehow excise out grassroots lobbying communication. That's where the next fight will be on this issue."
Towne said the timeline for that to happen is not clear, but the FEC "will have to act pretty quickly to provide some clarity."
"WRTL's three ads are plainly not the functional equivalent of express advocacy," Chief Justice Roberts wrote in the prevailing opinion. The opinion states that the court determined the content of the ads are consistent with that of a genuine issue ad.
Joining Roberts in the majority were Justices Alito, Scalia, Kennedy and Thomas. Dissenting were Justices Souter, Stevens, Ginsburg and Breyer.
WRTL had planned to run radio ads in 2004 urging voters to tell their senator to oppose judicial filibusters. The Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold, was approved in 2002 and restricts corporate and union money for electioneering activity, including a black-out period on "electioneering communications" defined as any broadcast communication that mentions a federal candidate and airs within 30 days of a primary or 60 days of a general election.
WRTL's radio campaign specifically was to mention Sen. Russ Feingold (D-Wisc.), who was unopposed in the September primary in 2004. The FEC ruled the ads violated federal law. After the District Court for the District of Columbia labeled the ads as constitutionally protected grassroots lobbying communications, the FEC appealed.
The decision "opens the door for groups to be able to communicate, grassroots lobbying communications, without having to look at the calendar to see if those broadcast ads are banned," Towne said, "and be able to react to favorable or unfavorable legislation regardless of what time of year it happens to arrive." |
