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Testimony of Rabbi David Saperstein, Director, Religious Action Center of Reform Judaism, Concerning the Notice of Propose Rulemaking on Political Committee Status

Federal Election Commission
Thursday, April 15, 2004

Good afternoon. I am Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism. As a rabbi, a lawyer, and a church-state law professor at Georgetown University Law Center, I'd like to thank the Commission for this opportunity to address you on a matter of great importance to my organization, to non-profit advocacy groups, and to the many religious organizations that regularly speak out on public issues of deep spiritual and moral significance.

The Religious Action Center of Reform Judaism is the public policy arm of the Union for Reform Judaism, whose more than 900 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis, whose membership includes over 1800 Reform rabbis. Our Movement is the largest in American Jewish life. We agree with many of the statements from the multitude of non-profit advocacy groups opposed to the Notice for Proposed Rulemaking, specifically with regards to its potentially significant restriction on the free speech rights of 501(c) non-profit organizations. I wish to focus specifically on the potential violation of the free expression of religion, which is guaranteed by the First Amendment to the U.S. Constitution and is seriously endangered by this proposed rule.

What unites Jewish and Christian faith groups, denominations, and streams across theological, cultural, and political differences is our sense of prophetic witness, our God-commanded obligation to be a voice of justice, equality, and peace in our society and in the world. This proposal would curtail that vital, prophetic voice of religion in America.

In particular, we are alarmed by the proposal to expand the definition of "expenditure" from the more narrow "express advocacy" test to include communications that "promote, support, oppose or attack" a federal candidate or a policy position of a candidate. Equally troubling is that the proposed rule would convert many nonprofits into "political committees" if they spend $50,000 or 50% of total disbursements in the current year or any of the past four years on these kinds of communications or voter mobilization.

As vigorous defenders of the wall separating church and state, we have cherished the vision of the Founders, who erected that wall preventing government from interfering with religion, in part to ensure that religion could serve as a goad to the moral integrity of our nation. As Dr. Martin Luther King, Jr. taught, "The Church… is not the master or the servant of the state, but rather the conscience of the state."

But how could a religious organization advocate, on either side, on an issue of profound moral significance without addressing the appropriate legislation's sponsors and opponents who are so often candidates for federal office? For example, in July of 1996, the Reform Jewish Movement issued a statement opposing President Clinton's support for welfare reform over concern for the bill's detrimental impact on children (see attachment). Alternatively, this past September, we released a statement following a ceremony in the Oval Office where I stood with President Bush as he signed into law the Prison Rape Reduction Act (see attachment). Like many others, this particular bill largely succeeded through the support of faith groups that felt religiously commanded to demand humane confinement for all prisoners. However, in both cases, President Clinton and President Bush were clearly defined candidates for reelection. Under the proposed rule, it certainly appears that these communications could be considered ones which "promote, support, oppose or attack" a candidate for federal office. Must religious organizations become registered political committees in order to address the issues which reach the core of their spiritual beliefs?

We are also very concerned by the potentially dangerous effect of these proposals on voter registration drives and get-out-the-vote efforts organized by religious organizations. Under the proposed rule, non-profit organizations are prohibited from using any information "concerning likely party or candidate preference" to determine who they will encourage to register or vote. Very often, statistics show that members of a certain religion or a certain community where a church, synagogue, or mosque is located are more or less likely to vote for a particular candidate or party. Fully aware of these "likely" voting preferences, religious groups could be deterred from registering even their own congregants to vote and, thereby, risk a full FEC investigation into whether it took such information into account in its decision making. Further, many religious organizations are also motivated to empower traditionally underrepresented minorities through political participation in the voting process, but this effort, too, could be stifled by the proposed regulations should these underrepresented groups show a "likely" preference towards one candidate or party. There are 350,000 houses of worship in America. Many of them run voter registration efforts as part of their religious mission. While few will approach the $50,000 limit, for some denominations, this could pose real problems, and for individual houses of worship uncertain as to the rules, it could have a chilling effect on their engaging in such religiously motivated civic activity.

Our opposition to the proposed rule should not be seen as opposition to campaign finance reform or campaign regulations. Indeed, we spearheaded a religious coalition to support the McCain-Feingold Bipartisan Campaign Reform Act of 2002 (BCRA). We are aware, though, that the impetus for these regulations comes from concern over the role 527s - non-profit organizations identified by their tax code status intending to influence local, state, or federal elections - are shaping up to play in this year's election. Let me first express my clear opinion that, in no way, should the proposed regulations be applied to any 501(c) organization, which are already regulated through their tax status and may spend only a limited proportion of their time and money on lobbying activities.

The question of 527s, however, is more difficult and complex. When their stated "major purpose" is to advocate for the election or defeat of a particular federal candidate and they can raise funds towards that aim through unlimited "soft money" contributions, it adds great strength to the argument that they are serving as a loophole through BCRA. On the other hand, many have argued that Congress, in passing BCRA, chose not to further regulate 527 groups and that the FEC does not have the authority to require that they all become political committees. In addition, many 527s act to influence federal elections by simply focusing attention on the candidates' work around key issues, without explicitly calling for election or defeat. It also seems very clear that 527s are different from political parties, in that they are at least one arm's length removed from the candidate and, therefore, do not accrue the same potential for corruption or the appearance of corruption, nor do they require the candidate to focus all of his or her energy on fundraising - two key concerns in our support for campaign finance reform. If further FEC regulation of 527s is deemed appropriate, considering the variety and complexity of 527 organizations, the lack of specific evidence of corruption, the expedited process of this rulemaking, and the fact that we now find ourselves in the thick of the election cycle, I feel that honest, legitimate campaign finance reform would be better served by a more thorough and specific investigation by Congress and the FEC into the work of 527s than is currently being provided. And any additional regulation should occur only after the current election cycle.

For a wide array of diverse faiths in America, the exercise of religion is inseparable from their religious obligation to engage with the issues and policies that touch the moral core of American society. In the Jewish tradition, we hear this call from one of our greatest teachers, Rabbi Hillel, who proclaimed, "Do not separate yourself from the community." The prophet Isaiah demands of us, "Devote yourselves to justice: aid the wronged, uphold the rights of the orphan, defend the cause of the widow" [Isaiah 1:17]. This proposed rule not only stifles the voice of our great Jewish teachers, but it abdicates the prophetic vision of Dr. King. Religious organizations under the proposed rulemaking would be forced to separate themselves from the American community, compelled to shy away from devoting themselves to justice, and scared into relinquishing their role as the "conscience" of our great country.

I urge the Commission to reconsider these regulations, particularly concerning their effect on religious 501(c) organizations.

Thank you for your time.

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The Religious Action Center of Reform Judaism is the Washington office of the Union for Reform Judaism, whose more than 900 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis(CCAR) whose membership includes more than 1800 Reform rabbis.

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