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Thursday, December 1, 2005

Aprill Proposes Four Safe Harbors for § 501(c)(3) Organizations to Avoid Charges of Improper Political Campaigning

Aprillbw_1 Ellen P. Aprill (Loyola L.A.) has submitted a letter and proposed revenue procedure to the IRS to provide guidance on the thorny question of political campaign intervention by § 501(c)(3) oganizations.

From her cover letter:

[T]he issue of implicit intervention into political campaigns by § 501(c )(3) organizations is currently receiving a great deal of attention, not only in my home town of Los Angeles, but also nationally. The line between political intervention and issue advocacy is uncertain at best, and thus the duty of the Exempt Organization division to enforce the prohibition on political intervention by such organizations is an extraordinary difficult one....

Given that questions of implicit intervention turn on the particular facts and circumstances of each situation, drafting a comprehensive set of regulations in this area would be particularly challenging. I believe, however, that guidance short of regulations, in particular a revenue procedure, would go a long way toward not only reducing disputes between the Service and § 501(c)(3) organizations, but also giving these organizations some certainty as to what is permissible behavior.

My own view is that, given the fundamental First Amendment values that are implicated by these rules and the fact that the available sanction for violating the political intervention prohibition is revocation of exemption, it is better to err on the side of allowing rather than denying political speech. ... I enclose a set of four safe harbors that I have drafted as a possible first step in thinking about new ways to begin to address this important issue.

From her proposed safe harbors:

Provided there is no explicit support of or opposition to a named candidate and excluding any remarks made or republished in any paid mass media advertisements as well as any voter guide, the following remarks by an organization at an event of the organization, on its webpage, or in a letter or publication of the organization directed toward its members will not be considered participating in or intervening in any political campaign on behalf of or in opposition to any candidate for public office, even if the remarks stress the importance of voting and urge the audience to vote:

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Comments

I am on the board of The Phyllis Merritt Singers, a 501(c)(3) choral arts performing organization. Although our activities have historically consisted almost exclusively of traditional preparation and presentation of musical programs, our qualifying purposes and mission statement also include educating the public about the life-long, positive benefits of a quality music education in the development of well-rounded, contributing members of society; and encouraging the public to view the inclusion of a high quality musical arts experience as an essential element of a comprehensive education.

The school board of Escambia County, Florida is considering reducing the daily school class schedule from 7 to 6 periods per day. This proposed change would severly impact the availability and participation in musical arts activities such as chorus or band. Such elective activities would either have to eliminated out right, or participation would fall by a percipitous rate because students would be forced to choose completion of college preparation courses over participation in musical arts activities on account of the shortened class day.

A member of our board of directors has rightly pointed out that this situation falls squarely into opposition with our stated organizational goals and purposes as noted above and suggests we take some type of organizational action to oppose this contemplated change. He suggests for instance appearing, testifying, and/or performing before a session of the school board, encouraging letter writing campaigns or other grass-roots types of mobilization efforts, etc.

I am seeking some counsel and advice on what limits, if any, we should be cognizant of and observe, in order not to jeopardize our tax exempt status.

Thanks for your assistance.

Gary B. Christenot
Board of Directors
The Phyllis Merritt Singers
www. merrittsingers.org

Posted by: Gary Christenot | Dec 17, 2005 6:58:06 AM