Thursday, December 1, 2005
Aprill Proposes Four Safe Harbors for § 501(c)(3) Organizations to Avoid Charges of Improper Political Campaigning
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: