With Polluters Holding the Upper Hand in Congress, a Green Electoral Strategy is Gaining Traction
For the League of Conservation Voters (LCV), Earth Day is Election Day. "You can invest all you want in public education campaigns," says Scott Stoermer, LCV’s communications director, "but if the men and women on Capitol Hill aren’t making the right decisions about America’s future, then public education does you no good. You have to get down, dirty and political."
Huge crowds for Earth Day, 1990.
Todd A. Gipstein / Corbis
Most environmental groups in the U.S. are standard nonprofits, meaning they have tax-free "501(c)(3)" status with the Internal Revenue Service (IRS) and devote themselves to good educational work. They’re allowed to lobby, but only if that lobbying is a small part of their total effort. But when faced with the most anti-environmental President in history, a man who makes even Ronald Reagan look like Edward Abbey, will an educational message that soft-pedals the politics get results? Does it make sense to, say, work overtime to save local green space when national policies create air so unbreathable it’s unsafe to be outside on summer days?
A newfound interest in electoral politics has persuaded many environmental groups and their funders to take a look at fighters like LCV, which work strategically with the tax laws and employ an arsenal of separately purposed entities, including those that can legally endorse candidates, lobby—even contribute money to election campaigns. "There are many environmental groups that do wonderful things," says Keith Gaby, LCV’s director of external affairs, "but we are the only one that focuses fulltime on changing the government."
The election of George W. Bush, decided by just a few votes in Florida, or by the Supreme Court depending on one’s level of cynicism, has been a disaster for the environment. Since his election, Bush has, among many other things, abandoned the Kyoto Protocol on global warming, weakened wetlands protection, gutted mining restrictions on federal lands, called for increased logging, refused to endorse higher automobile fuel-efficiency standards, sued California for enacting tough air laws, repealed a law that would have lowered power-plant emissions, and offered tax "reform" that allows an enormous spectrum of businesses to deduct the full cost of large SUVs in the first year of purchase.
Not only is Bush working on many fronts to roll back environmental laws, he is also appointing anti-environmental judges whose legacy will be with us for decades. Any group can express their outrage at this, but only those that are willing to give up the right to receive tax-free donations can directly campaign against Bush and his cronies. And given the ever-earlier start date of campaigns, the election cycle is
already well underway.
A Variety of Options
For groups that want to pursue unrestricted lobbying, but not full-time campaign activity, "501(c)(4)" status is the best fit. These organizations are tax-free themselves but can only accept non-deductible donations. The big advantage is that they can lobby on behalf of issues, though campaign activity is restricted to 49 percent or less of their work.
The law is somewhat vague in that it simply prohibits 501(c)(3) groups from devoting a "substantial" part of activity to lobbying. If 501(c)(3) groups file a 501(h) form to consent to IRS scrutiny of their lobbying activities, they’re permitted to spend 20 percent of their annual budgets on lobbying—averaged over four years—without incurring an IRS penalty. However, if a 501(c)(3) organization averages 30 percent or more lobbying over a four-year period, it jeopardizes its tax-free status. As with a 501(c)(3), there is no limit to the amount of money that a contributor can donate to a 501(c)(4). However, gifts of more than $11,000 to a 501(c)(4) are not only taxable but are also subject to a gift tax.
Ben and Jerry’s co-founder Ben Cohen (foreground) launched a 527 group, Business Leaders for Sensible Priorities, that chases Congressional pork.
AP PHOTO/Tyler Mallory
Environmental groups with tax-free 501(c)(3) nonprofit status can influence electoral politics only in fairly oblique ways. They are free to issue reports and even criticize or praise politicians, but they cannot endorse candidates. This rule is sometimes stretched, as with religious right groups that distribute millions of "voter guides" that pretend at objectivity but clearly indicate a preference for, say, anti-abortion candidates. But the law is definitely a constraining factor.
When Bush comes up for reelection in 2004, 501(c)(3) groups can only criticize his policies and rate his performance. The 501(c)(4) groups can also endorse and help elect opposing candidates. Another advantage of 501(c)(4) groups is that, although they must file a Form 990 business tax return with the IRS, they do not have to disclose lists of donors.
The role and usefulness of 501(c)(4) groups was firmly established by a 1983 U.S. Supreme Court decision, Regan v. Taxation With Representation of Washington. Before the decision, it was unclear if nonprofits could control their affiliated 501(c)(4) organizations, or if the law even required them to be separate. As a result, few of these groups were created.
But the Court’s 1983 clarification said that the IRS" role was limited to making sure that the 501(c)(4) and 501(c)(3) be separately incorporated, and that they maintain records to prove that tax-free funds weren’t being used for lobbying. Therefore, nonprofit groups such as the Sierra Club or Friends of the Earth can retain control of their lobbying arms, and they can share boards and office space.
The law that created political action committees (PACs) was passed in 1944; since then, direct financial contributions to candidates have become a crucial revenue stream. By the end of the 1998 election cycle, there were nearly 4,000 registered PACs (up from 608 in 1974) that contributed $220 million to federal candidates. Some of the largest PACs are run by union and trial lawyer interests, though corporate money overwhelms these sources when it’s added together.
Although special interests that support anti-environmental candidates donate the overwhelming amount of political money, some large PACs are environmentally related. In 2000, EMILYS List, whose female candidates frequently vote in favor of the environment, had more than $5 million in cash on hand and was the fifth-largest PAC in the U.S. The League of Conservation Voters" Action Fund PAC was ranked 17th in the nation with $1,157,309. The Sierra Club’s PAC was 45th with $538,203.
Contributions to PACs are not tax deductible. Individuals can donate $5,000 per person per year to a PAC, and PACs can give $5,000 to a candidate’s campaign per election (primary, general or special). They can also give up to $15,000 annually to any national party committee, and $5,000 annually to any other PAC.
Another electoral tool is the "527" organization. Also known as "Stealth PACs," 527(e) and 527(f)(3) groups have traditionally been able to receive anonymous donations in any amount without disclosing the source. Election reform advocates such as Common C
ause have long campaigned to force these groups to identify their officers and large contributors, and they may have won a partial victory with the passage last year of the McCain-Feingold campaign finance reform bill. The law requires disclosure of 527 gifts of more than $1,000 when used to fund campaign broadcasting, but it will have to withstand a vociferous series of court challenges.
Reforming Campaign Finance
Congressional passage of campaign finance reform will have some effect on how environmental nonprofit groups can influence elections, and it also makes their work more urgent than ever. As the New York Times reported in February, the ban on "soft" money (contributions to parties) in the new reform law hurts liberal Democrats more than it does Republicans, who raise twice as much "hard" money (donations directly to candidates). Hard money is largely unaffected by campaign finance reform.
Until the McCain-Feingold bill was passed, many groups on both the left and right used 527 organizations as a conduit to pay for independent television commercials that worked for but did not specifically endorse candidates. According to the Alliance for Better Campaigns, "By 2000, more than 40 percent of the 880,172 campaign ads that aired in federal races in the nation’s top 75 media markets were sponsored not by candidates but by interest groups and parties."
In the 2000 election cycle, environmentally oriented ads appeared on both sides of the issues, paid for by 527 groups that hid their donors. For instance, Republicans for Clean Air (backed by major Bush donor Sam Wyly) spent an estimated $2.5 million broadcasting ads criticizing Senator John McCain’s environmental record prior to the Super Tuesday primaries. Citizens for Better Medicare, also a 527 group (and an arm of the pharmaceutical lobby), spent $65 million on television, radio and newspaper ads in the same cycle.
"Voters assume their representatives are voting the right way on the environment, even when they’re not," says LCV’s Deb Callahan.
Another major 527 group, Business Leaders for Sensible Priorities, was set up around the same time by the pro-environment Ben Cohen, a founder of Ben and Jerry’s Homemade ice cream. The group created ads depicting the Capitol as the "Congress Café, offering Washington’s Finest Pork BBQ," and conducted a national tour with Oscar Mayer Weinermobile-type vehicles that demonstrated Congress" spending priorities. Van Gosse, organizing director of a 527 called Peace Action, whose Peace Voter Fund was involved in eight congressional races in 2000, says that 527s are a major tool for activists. "Unlike a PAC," he says, "there’s no cap on how much you can spend or accept. There’s no reporting. It’s a thing of beauty from an organizing perspective. It gives one a lot of freedom and fluidity."
The McCain-Feingold campaign finance reform law prohibits corporations and unions from spending money on pre-election TV or radio "issue ads" within 60 days of a general election or 30 days of a primary, and it extends the ban to 527 and 501(c)(4) groups. This provision is under court challenge, and may be overturned. The new law requires third-party organizations to channel their advertising through PACs paid for only in hard money donations, and it requires 527 groups to publicly disclose their financing for large donations intended to pay for broadcasting. Some critics, on both the left and right, say these new restrictions will favor incumbents, because third-party advertising usually backs challengers.
But will the campaign finance law survive court challenges? Last November, two weeks after the election, a federal judge in Hawaii upheld Hawaii Right to Life’s running of campaign ads in connection with a special congressional election. Perhaps more important, a leading opponent of campaign finance reform, Senator Mitch McConnell (R-KY), joined forces with dozens of groups from across the spectrum, including the Republican National Committee, the California Democratic Party, AFL-CIO, the American Civil Liberties Union, the U.S. Chamber of Commerce and the National Rifle Association, in a lawsuit to oppose campaign law on free speech grounds. A U.S. District Court hearing before a three-judge panel was held in December, and a ruling is expected soon. Either way, the matter seems destined to be heard by the Supreme Court.
LCV in Action
The League of Conservation Voters is a great example of a 501(c)(4) at work. Its LCV Action Fund endorses candidates every election year, publishes lengthy reports on their voting records, produces and distributes both "Environmental Champion" and "Dirty Dozen" classifications for politicians, and spends money endorsing and opposing candidates.
It’s obvious that money plays a significant role in elections, and business organizations are the largest contributors. In the 1997-1998 fiscal year, which included an off-year election, PACs contributed $230 million to candidates, of which $150 million came from business groups. Only $392,000 was spent by environmental groups. "It breaks your heart," says LCV President Debra Callahan. "Money makes an absolute difference in electoral politics."
According to the website Opensecrets.org, which documents the role of money in politics, in the 2002 election cycle none of the top 100 political campaign donors were environmentally oriented. As environmental funder Jay Harris notes, "Public interest groups have the bodies but they don’t have the money. Less than five percent of the money donated to environmental causes goes for electoral activities. If the environmental movement doesn’t get far more involved with the electoral process, we have no hope of saving the planet."
Despite voting for Arctic drilling and against open space, New Hampshire’s John Sununu says he supports "a critical balance" on the environment. Colorado Senator Wayne Allard (below) has a terrible environmental record, but campaigned as a green.
AP Photo/Tim Boyd
To show how anti-environmental causes influence the debate, it is instructive to look at just one industry, oil and gas. In 2002, the industry made more than $21 million in contributions (only $7 million of it from individuals), with Republican candidates favored four-to-one over Democrats. Although membership in the Democratic Party is obviously no guarantee of a good stand on the environment (some top LCV-supported candidates, such as Representatives Christopher Shays of Connecticut and Sherwood Boehlert of New York, are Republicans), it does provide a rough indication of where the environmental money went.
In the last Presidential election year, 2000, LCV spent $11,808,757 on a targeted and fairly successful strategy to elect favorable candidates. In that year, two of the most anti-environmental members of the U.S. Senate—Spencer Abraham of Michigan (later appointed Secretary of Energy) and Slade Gorton of Washington—were defeated by narrow margins with LCV assistance. LCV didn’t do as well in 2002: although five of its Dirty Dozen went down to defeat, so did three of its 18 Environmental Champions. "It was not our best year," admits LCV campaigns director Amy Kurtz. According to Betsy Loyless, LCV’s political director, until the 2002 election LCV had won 23 of the 37 races it had competed in (62 percent
); now the record has dropped to 28 wins in 49 races (57 percent).
An important advantage LCV has over other electoral strategists is that, since it does not accept labor or corporate money, it can buy partisan television advertising right up to Election Day. LCV’s status is based on the Supreme Court case of FEC v. Massachusetts Citizens for Life, Inc., which carved out an exception to the ban on corporate contributions and expenditures to federal candidates within 60 days of a general election and 30 days of a primary. "All of our money is transparent and reportable, so we have more flexibility than most in what we can say and do in election campaigns," says LCV’s Scott Stoermer. Other groups are seeking similar exceptions, including the notoriously political National Rifle Association.
"We learned quite a bit from our experience in 2002," says Loyless, "particularly in the Colorado and New Hampshire Senate races" (where, in both cases, LCV-endorsed Democrats were defeated by conservative, anti-environmental Republicans). Colorado is a particularly interesting case. Incumbent Senator Wayne Allard, with an LCV rating of only eight percent, was up against polling that showed the environment mattered to Colorado voters. He won anyway.
"He had a terrible record," says Kurtz, "but he went on TV proclaiming what a great environmentalist he is. LCV didn’t respond quickly enough. It became Wayne Allard versus LCV, and the public is not well-informed about the details of a candidate’s voting record. We let him get away with too much, and we learned that we need to be in there earlier." And that, of course, means raising and spending even more money on targeted races.
LCV had the same experience in the 2002 New Hampshire Senate race, in which Congressman John Sununu (with only a 36 percent LCV score in the 107th Congress and a place on the group’s "Dirty Dozen" list) defeated former Democratic Governor Jeanne Shaheen. Sununu raised $3 million for his campaign, 76 percent of which came from business interests. Oil and gas industries donated more than $100,000, electric utilities $80,000, and pharmaceutical companies $74,000.
LCV joined with the New Hampshire chapter of the Sierra Club in endorsing Shaheen, and the battle over environmental voters became heated and bitter. "Sununu has supported policies that have hurt the environment," said the Sierra Club’s Phil Wellner during the campaign. "Sununu has supported the Bush energy plan, oil subsidy plan and rolling clean laws back." He also led efforts to open up the Arctic National Wildlife Refuge to oil drilling and give tax breaks to oil and gas companies. Sununu had also been the only member of Congress from New England to oppose a landmark conservation bill to protect open space.
Predictably, the Sununu campaign shot back with statements wrapping the candidate in a green flag. "The Sierra Club should spend some money hiring a new research assistant because they can’t get their facts straight," said Sununu’s Julie Teer. The candidate himself said, "I have worked hard to strike a critical balance between protecting our environment and promoting New Hampshire’s economic priorities."
Can voters carefully weigh the evidence and make informed decisions? Regrettably, voters are not generally knowledgeable about the environmental positions taken by candidates they support. A wide majority of Bush voters say in polls, for instance, that they support the environment. "Environmental protection is so universally embraced that voters assume their representatives are doing the right thing, even when they are not," says LCV’s Callahan.
Most voters get their campaign information from television, where paid advertising holds sway. The McCain-Feingold bill contains some reforms for television ads—candidates have to appear in the last four seconds and proclaim that they endorse the message, for instance—but the basic fact of TV primacy is unchanged.
Ed Zuckerman, director of the Federation of State Conservation Voter Leagues, says that—especially in the West—green politicians made some headway in 2002.
Wade Greene, advisor to the Rockefeller family philanthropies, points out another unfortunate fact: Environmentalists don’t vote any more often than average citizens do, and the overall numbers are pretty low. Only 51 percent of eligible Americans voted in 2000, a Presidential election year. In 2002, green groups got outspent and outmaneuvered. "There were some great disappointments last year, and environmental groups are still trying to figure out what happened," Greene says. "The Republicans got rolling earlier, had more money—as usual—and also had more of their grassroots strategy worked out early and put systematically in place. The result is that the question of who is the more environmental got very muddied." And for the most part, the green candidates lost, setting up a "Bush revolution" of anti-environmental forays.
"With basic environmental protections under attack, an electoral role for environmental groups is essential," Greene says. "Some major foundations don’t think they can make donations in this realm, but they can and should be doing more." Donald Ross, also a philanthropic advisor, adds that many foundations are represented "by lawyers with jelly in their spines" who counsel that it’s "risky" for them to get involved in the electoral arena. "In fact, there’s a great deal of latitude there," Ross says.
In one of many strategies environmentalists have picked up from their conservative opponents, groups like the Sierra Club now use what’s know as "list enhancement" to get green voters to the polls. The process involves comparing environmental membership lists with voter records and identifying activists who haven’t bothered to step inside the voting booth. "It can make quite a difference to identify likely green voters and work on getting them to the polls," says Greene.
The Sierra Club is a 501(c)(4) group that can and does endorse candidates and pursue a strong electoral strategy through such related entities as a PAC, the Sierra Club Political Action Committee, and a 527 group, the Environmental Voter Education Campaign (EVEC).
In 2002, EVEC was active in 17 races in 11 states, with 1,200 volunteers knocking on 31,000 doors and handing out literature and voter guides. Some 285,000 phone calls were made. The Sierra Club handed out $1.5 million in PAC money in 2002.
Allen Mattison, a member of the Sierra Club’s media team, says that 2000 was probably the last year in which candidates could openly campaign against the environment. In 2002, he says, low-LCV scorers such as Wayne Allard in Colorado, Gordon Smith in Oregon, Norm Coleman in Minnesota and John Sununu in New Hampshire campaigned as pro-environment. Their strategy was in part based on the work of Republican advisor Frank Luntz, who advises even rabidly anti-environmental candidates to paint themselves green.
"Our job is to communicate to the American people that those candidates were lying when they claimed to be environmentalists," Mattison says. "And we have to do it in a way that isn’t shrill, that doesn’t set th
e voters" hair on fire. We need to say, "Look, Wayne Allard said he would vote for X, but when it actually came up in Congress he voted against it." The message is more believable when it’s delivered by local people, and that’s why we work so hard on a grassroots strategy."
Similarly, Friends of the Earth Action serves as the political arm of Friends of the Earth (FoE). In 2000 the group trained staff to take part in eight congressional races, six of which were successful. In 2002 it endorsed a full slate of House, Senate and gubernatorial candidates (including Republican representatives Christopher Shays and Sherwood Boehlert), and also spent both 501(c)(4) and FoE PAC money to train workers for the campaign trail. FoE Action created policy position papers, provided "message content" for mobilizing the vote, and offered media training.
Green Republicans? You Bet!
Martha Marks, the president of Republicans for Environmental Protection (REP) America, was in Washington, D.C. recently, and stopped in to visit Congresswoman Nancy Johnson (R-CT). "Nancy is a good friend," Marks says. "I wish we could clone her."
The fact is, environmental Republicans are becoming an endangered species on Capitol Hill, and conservatives are working overtime in Republican primaries to ensure that those remaining lose their jobs. REP America lists four Congresspeople among its membership of 2,000, with chapters in seven states. It has a paid staff of two.
REP America is a 501(c)(4) that also operates a 527 group, though it is not in a position to help candidates with direct financial contributions. In 2002, REP America endorsed two Republican primary candidates for Congress, State Representative Kelly Barlean in Washington State and Jim Fallin in New York City. Neither won. "Our role is endorsing good Republicans in primaries and trying to give them a boost," says Marks.
"Conservation is conservative," is one of the group’s slogans. Marks founded the group in 1995 after she encountered two other Republican women at an endangered species conference. She cites the Republicans" historically green tradition, represented by Abraham Lincoln and Theodore Roosevelt.
The Federation of State Conservation Voter Leagues (FSCVL), with 30 state members, was founded recently as a bipartisan 501(c)(4) nonprofit group that works with local environmental voter groups around the country. In 1998 it launched the "Polluter Pack" program to encourage both the Democratic and Republican parties to set high standards of environmental leadership among their members.
Philanthropist Wade Greene points out that many self-proclaimed environmentalists don’t vote. "An electoral role for green groups is essential," he says.
The generally dark picture of the 2002 election is brighter if one looks only at the western states. Democratic, pro-environment candidates won several open congressional seats there, and picked up three governorships—in New Mexico, Wyoming and Arizona. Ed Zuckerman, director of FSCVL, says the vote is no coincidence: 10 western states have grassroots conservation voter groups, with five of them less than five years old. "It was a little counter-intuitive," says Zuckerman. "On the federal level there were some big icon races that didn’t go the way environmentalists had hoped, but on the state level there were some tremendous victories. In Michigan, for instance, not only was the state LCV helpful in getting Jennifer Granholm, a strong environmentalist as attorney general, elected governor, but she then tapped Dana Debel, head of Michigan’s LCV, to be her top environmental aide."
As High Country News reported last November, analysts credit the 9,000-member Arizona LCV with putting Janet Napolitano—who campaigned to preserve the desert from runaway development—in the governor’s office. The Oregon LCV, which spent $290,000 in PAC money for environmentalist Ted Kulongoski, may have made the difference in a very close race. Colorado Conservation Voters spent $100,000 in PAC money on seven legislative races, and won three of them. In Montana, environmental voter groups helped defeat eight polluter-friendly state representatives.
Environmentalists are hardly working in a vacuum. Groups like the Christian Coalition (CC) prepare scorecards of their own, and their scores are usually the exact opposite of LCV"s. Even though CC is not an environmentally based group, it almost invariably gives its highest scores to politicians who are disastrous for the environment.
The most direct opponent of LCV and other green electoral strategists is the Washington, D.C.-based Club for Growth, which like CC is not environmentally oriented but picks its candidates based solely on their position on "tax cuts and growth." Founded in 1999 by the presidents of the libertarian Cato Institute and the conservative magazine National Review, among others, the Club for Growth achieved victory in 17 of the 19 House and Senate races it worked on. In 2002, it raised and spent more than $10 million.
It’s obvious that environmentalists will have to think more strategically in the upcoming electoral cycles if they want to avoid a repeat of the 2000 and 2002 results. The conservation voter efforts taking place in 30 states are a good start, but they would benefit considerably from a major infusion of cash and volunteer talent. Considering the trillions of dollars in cleanup costs resulting from the policies our politicians are voting for right now—not to mention the irretrievable loss of our natural heritage—an investment in conservation would be money well spent.
JIM MOTAVALLI is editor of E.