[EL] Crossroads Issue Ad

Wed Nov 30 14:00:04 PST 2011

I am not sure that works.  The IRS has generally defined campaign
intervention for all 501(c) organizations and exempt function for purposes
of section 527 in the same way. (I support this assertion in this paper:

Section 501(c)(3) organizations are permitted no campaign intervention at
all - not simply less (unless you are using "poltical activity" to include
lobbying as well as campaign intervention.

The difference factors may simply follow from the fact that a "facts and
circumstances" test gives no certainty - there is always the possibility of
more or different factors.

  Ellen

On Wed, Nov 30, 2011 at 11:37 AM, Eric Lycan <Eric.Lycan at steptoe-johnson.com
> wrote:

>  *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)?*
>
> * *
>
> * *
>
> *D. Eric Lycan*
> Steptoe & Johnson PLLC
> P.O. Box 910810, Lexington, KY 40591-0810
> *Overnight*
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> *Eric.Lycan at Steptoe-Johnson.com*
> www.steptoe-johnson.com****
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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> 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 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>
> 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> 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). ****
>
>
>
> --
> Steven Gold
> General Counsel
> ActBlue
> steve at actblue.com
> 617.517.7636
> www.actblue.com
>
> ****
>
> On Tue, Nov 29, 2011 at 10:55 AM, Jon Roland <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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> -- ****
>
> Ellen P. Aprill****
>
> John E. Anderson Professor of Tax Law****
>
> Loyola Law School****
>
> 919 Albany Street****
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> -- ****
>
> Ellen P. Aprill****
>
> John E. Anderson Professor of Tax Law****
>
> Loyola Law School****
>
> 919 Albany Street****
>
> Los Angeles, CA 90015****
>
> 213-736-1157****
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-- 
Ellen P. Aprill
John E. Anderson Professor of Tax Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015
213-736-1157
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