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The U.S. Supreme Court has heard oral arguments in a case that could determine whether nonprofits can engage in grassroots lobbying during election season. A decision in Federal Elections Commission (FEC) v. Wisconsin Right To Life (WRTL) is expected later this summer before the end of the court's term.

"It's a huge issue for nonprofits," said Jennifer Lowe-Davis, legislative counsel for the Alliance For Justice, as nonprofits could be gagged "during a vital period to conduct genuine issue advocacy."

The case stems from WRTL's plan for a radio campaign in 2004 urging voters to tell their senators to oppose judicial filibusters. The 2002 Bipartisan Campaign Reform Act, more commonly known as McCain-Feingold, restricted grassroots organizations from mentioning federal candidates in ads within 60 days of a general election, or 30 days before a primary. Despite Sen. Russ Feingold (D-Wisc.) being unopposed in the September primary that year, the FEC ruled the ads violated federal law since he was mentioned in them. WRTL filed suit to get permission to run the ads, winning a 2-1 ruling in December by a District Court, which the FEC appealed.

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A study has shown that Congress tends to be more active before an election, Lowe-Davis said, and the fact that an election is going on shouldn't impact the rights of groups to talk about and educate the public on issues. "Ads are not to convince the public to vote a certain way, they're designed to educate the public."

While corporations and labor unions might have Political Action Committees to funnel money to issue advertising, nonprofits are prohibited.

"If you're involved in grassroots campaign, you're limited in what you can say or do," said Kay Guinane, director, nonprofit speech rights, at OMB Watch. "Different types of nonprofits have more flexibility, but for charities and religious groups, there's no way out; we're not allowed to have PACs."

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A number of national charities signed on to a "friends of the court" brief in the case, including OMB Watch, Independent Sector, the Center for Lobbying in the Public Interest, and National Council of Nonprofit Associations, among others, in addition to several state organizations. Other advocacy groups joined in signing a brief as well, including the AFL-CIO, National Rifle Association and National Association of Realtors.

It's anyone's guess what the high court will do. The Supreme Court could agree that the ad is constitutional, said Lowe-Davis, or possibly create a test an ad must pass to determine whether it's genuine advocacy. There's also a chance it do a combination of things, such as making an exemption for charities to be allowed to air issue ads during campaign seasons.

Since a 5-4 decision in a 2003 case allowed Congress to regulate corporate and union spending to influence federal elections, the Supreme Court has two new conservative judges -- Chief Justice John Roberts and Justice Samuel Alito - along with the retirement of Sandra Day O'Connor, the swing vote in that 2003 case.