Organizing for Action, the purported “issues advocacy” social welfare organization established in January, sent out a campaign-style email on Wednesday to an extensive email list of Obama supporters developed by its predecessor organization, the Obama for America presidential campaign committee, attacking congressional Republicans.
The email pushes the boundaries of the standard that defines allowable communications that can be sent out by “issues advocacy” social welfare non-profit groups organized under Section 501(c)4 of the Internal Revenue code. In effect, Wednesday’s OFA email constitutes one of the first campaign ads of the 2014 mid-term Congressional elections, sent by a partisan Democratic organization billing itself as a social welfare group.
In the email, Stephanie Cutter, who served as the Deputy Campaign Manager in the 2012 Obama for America presidential campaign, attacked “congressional Republicans” four different times in the email. The message was sent to an email list of 17 million Obama supporters that was developed over several years using millions of dollars of political contributions to Obama for America [emphasis added]:
Prepare yourself for job layoffs, reduced access to early education, slower emergency response, slashed health care, and more people living on the street.
This Friday is the final deadline for congressional Republicans to stop disastrous automatic spending cuts (known as the “sequester”) that will hurt everyday Americans — including you.
These budget cuts will take a sledgehammer to the budget, and indiscriminately cut critical programs vital to economic growth and middle class families.
If Congress fails to act, we’d see budget cuts pretty much across the board to critical services that teachers, first responders, seniors, children, and our men and women in uniform rely on every day.
It sounds bad because it is. And with all these cuts on the line, why are congressional Republicans refusing to budge?
Because to do so, they’d have to close tax loopholes for millionaires and billionaires, oil companies, vacation homes, and private jet owners. I’m not kidding.
It’s on each of us to speak up. Share what these budget cuts could mean to you — or someone you know — today. Congress needs to hear it.
President Obama has offered a balanced plan to reduce our deficit, asking the wealthy to pay their fair share so that we can protect programs that are incredibly important for working and middle-class Americans.
But congressional Republicans so far are refusing to compromise . . .
Let’s keep the pressure on congressional Republicans to do the right thing.
Organizing for Action
The language of Wednesday’s OFA email is cleverly crafted to test the edge of the acceptable “magic words” standard used by the FEC to delineate between campaign and “issue advocacy” communications. As Emma Schwartz of PBS’s Frontline wrote back in October:
The key starting point is a 1976 Supreme Court case, Buckley v. Valeo, in which the court speculated in a footnote that if certain words were used in an ad, it was clearly a campaign ad. The eight phrases listed in the footnote -“vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” and “reject” — became known as the “magic words” and for decades served as a bright line test between an issue ad and a campaign ad.
While the OFA email carefully avoids those eight specific words, there is no doubt that it is a partisan attack on congressional Republicans, and its purpose is to mobilize voters in February and March of 2013 as a broader plan to get-out-the-vote for Democrats and against Republicans in the November 2014 Congressional mid-term elections.
Schwartz goes on to note that the standard applied to the test that separates “political” communications from “issues advocacy” communications has become much broader in the almost four decades since the Buckley v. Valeo decision:
Today, both the FEC and the IRS use tests broader than just the magic words to determine what counts as an issue ad. The FEC says that any ad that mentions a candidate during defined windows before an election must be disclosed, even if it doesn’t include the magic words. The IRS looks at what it calls “the facts and circumstances” surrounding an ad. Tax experts say that many of the issue ads that fall outside FEC reporting windows would be considered political by the IRS.
It remains to be seen whether there are grounds for Republicans to mount a legal challenge to this effort by the Obama campaign team operating under the framework of Organizing for Action.