[EL] Crossroads Issue Ad

Wed Nov 30 11:37:58 PST 2011

Is it too simplistic an interpretation to distinguish the two on the basis that 2004-6 applies to 501(c)(4) activity and that 2007-41 applies to 501(c)(3) political activity, which is permitted in far lesser degree than with a c(4)?

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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Ellen Aprill
Sent: Tuesday, November 29, 2011 2:16 PM
To: JBoppjr at aol.com
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Crossroads Issue Ad

I agree that the IRS use of facts and circumstances is problematic and have recently written a piece urging that IRS and Treasury should want to promulgate regulations in this area (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1927611), but I also think that the two rulings have different purposes.  Rev. Rul. 2004-6 is attempting to distinguish lobbying from campaign intervention while Rev. Rul. 2007-41 is attempting to distinguish issue advoacy that is not lobbying from campaign intervention.

  Ellen
On Tue, Nov 29, 2011 at 10:45 AM, <JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
Now, it you want to be totally confused, compare Rev. Ruling 2004-6 with 2007-41
Click here: Internal Revenue Bulletin - June 18, 2007 - Rev. Rul. 2007-41<http://www.irs.gov/irb/2007-25_IRB/ar09.html>  In Rev. Ruling 2007-41, the IRS again lists factors to be consider to distinguish issue advocacy from political intervention.  Inexplicitly, the IRS does not use the same factors -- adding some and deleting others--  and they don't even acknowledge that they are doing that.  Most troubling is that they add a new one -- reference to an election in the communication -- that they didn't mention in 2004-6, but now say that that factor is the most important factor!  No mention that 2004-6 is superceded either. So it is impossible to know what it is that the IRS is using to make this distinction and to know what one can now rely upon to decide this for ourselves.  Jim Bopp

In a message dated 11/29/2011 12:56:04 P.M. Eastern Standard Time, ellen.aprill at lls.edu<mailto:ellen.aprill at lls.edu> writes:
Here is a link to the IRS ruling that attempts to distinguish issue advocacy from political campaign activity.

http://www.irs.gov/irb/2004-04_IRB/ar10.html

   Ellen
On Tue, Nov 29, 2011 at 9:48 AM, Steve Klein <stephen.klein.esq at gmail.com<mailto:stephen.klein.esq at gmail.com>> wrote:
"I shall not today attempt further to define the kinds of material I understand to be embraced within [the functional equivalent of express advocacy]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."
On Tue, Nov 29, 2011 at 9:33 AM, Steve Gold <steve at actblue.com<mailto:steve at actblue.com>> wrote:
Perhaps I should have specified, a challenger not holding public office.  Is that not new?  I'm less well-informed about attack ads than many, so perhaps I simply missed it.  I'm also not aware of an issue ad that lists the phone number of a campaign headquarters (which seems like a really bad idea if you expect anyone to call it).

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On Tue, Nov 29, 2011 at 10:55 AM, Jon Roland <jon.roland at constitution.org<mailto:jon.roland at constitution.org>> wrote:
On 11/29/2011 09:47 AM, Steve Gold wrote:
Is this something we should expect to see more of from non-profits?
We already see much of this and have for a long time. Nothing new.

Why not simply come out and say, don't vote for Warren?
Good question. It points out the irrationality of campaign finance legislation (aside from it being unconstitutional).

-- Jon

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