[EL] IRS discussion of nonpartisan analysis, study or research
BZall at aol.com
BZall at aol.com
Mon Apr 23 07:17:36 PDT 2012
Actually, for a more complete discussion of this point, perhaps the IRS's
own Continuing Professional Education material might be edifying:
_http://www.irs.gov/pub/irs-tege/eotopicp97.pdf_
(http://www.irs.gov/pub/irs-tege/eotopicp97.pdf) , see pp. 302, 274-76. The entire CPE chapter, in Q&A format by
the still-active Judy Kindell and the sainted Jack Reilly, is quite
specific and clear about lobbying by electing and non-electing 501(c)(3)s. A
little dated now, but nothing significant has changed in this area since.
But, like all discussions of lobbying, the question can easily be disposed
of by examining the elements of lobbying: specific legislation, a view on
the legislation, and a call to action. Dropping one removes the activity
from lobbying. To have nonpartisan analysis, you need only drop the call to
action. Which is what the organization described in Rev.Rul. 70-79 did: "Rev.
Rul. 70-79 holds that the organization qualifies for IRC 501(c)(3) status
because of the educational nature of its activities and because it
abstained from advocating the adoption of any legislation or legislative action to
implement its findings." Kindell & Reilly, supra, P. 275. The more modern
view actually divides potential calls to action into direct and indirect,
and only direct encouragement converts a nonpartisan analysis into lobbying.
Id., P. 302-3.
Now looking at the question about the organization, there's a very good
argument that the organization DOES, in fact, engage in lobbying. From the
website:
"Our consulting services on policy issues go beyond testifying. We help
draft bills, organize workshops, and convene legislative-executive teams. ...
[S]taff are prepared to come to your state to work with legislators and
staff on almost any public policy issue, or issue related to the management
of a legislature. Contact your state's liaison to schedule a briefing or to
learn more about this service." _http://www.ncsl.org/issues-research.aspx_
(http://www.ncsl.org/issues-research.aspx)
And it lists several lobbying communications on its site.
_http://www.ncsl.org/state-federal-committees.aspx?tabs=854,48,684_
(http://www.ncsl.org/state-federal-committees.aspx?tabs=854,48,684) . We can't check its 990 though,
because Guidestar doesn't have it (probably because it's a 501(c)(4)) and
the organization doesn't make any financial information available on its
website.
If you dig deep into its website, though, it does have a 501(c)(3)
foundation, _http://www.ncsl.org/about-us.aspx?tabs=1027,82,570_
(http://www.ncsl.org/about-us.aspx?tabs=1027,82,570) , which also seems to lobby quite
openly: "As a supporter you will share and access information by:
* Making your viewpoints on state policies available to legislators
in all the states, commonwealths and territories, through NCSL committees
and the NCSLnet."
That's not an absolute indicator, however, since those "viewpoints" may
not include the call to action discussed above. The foundation's 990 answers
"no" to Part IV, Q. 4, about engaging in lobbying. If I were the New York
Times, though, I'd probably classify it as lobbying. It's the intertwining of
the c4 and the c3 that taints the chance of the c3 saying that it's not
lobbying. See above; if you can affect the c4's lobbying through the c3, is
there really a difference? See subsequent use, Kindell & Reilly, pp. 303-04.
Since the foundation seems only to be an adjunct of the c4's lobbying
activities, it might meet the primary purpose and subsequent use tests. So, I'd
probably say that, yes, I have an opinion about NCSL's lobbying.
Oh . . . wait . . . .
um. . . . Sorry.
You were asking about ALEC, not NCSL. Ah, well, as for its website, ALEC
says: "ALEC serves solely as a resource for its members; it does not lobby
state legislatures. . . . . ALEC does not lobby in any state."
_http://www.alec.org/about-alec/frequently-asked-questions/_
(http://www.alec.org/about-alec/frequently-asked-questions/) The ALEC resolutions page offers model
resolutions to be adopted, but as shown above, that, in itself, is not
lobbying. Nothing in the NYT piece talks about the organization directly lobbying,
or enticing the grassroots to do so. Nothing on the ALEC 990 shows
lobbying, and the organization answered "no" to Part IV, Q. IV. I don't have any
other information about them and their activities.
But, of course, I COULD look to those who have both knowledge and
information. I guess Alan Dye, who's as good an exempt organization lawyer as
anyone, _http://www.wc-b.com/bios.php?action=view&id=2_
(http://www.wc-b.com/bios.php?action=view&id=2) , might have a point. And CPA Tom Raffa, who handles
quite a few 990s, might also know what lobbying means. So, just based on
their certifications and statements, and not knowing what secret documents
Common Cause fed to the NYT, I'd say that I also have an opinion on whether
ALEC is lobbying and it's based as much on respect for those who do know
and understand the rules, have access to the actual records and activities of
the organization, and counsel those who must swear under penalty of
perjury, as on the unsupported claims of an opposing advocacy organization.
Opinions can differ, of course, but confirmation bias (on these grounds) raises
its ugly head on me, too, I guess, not just on Common Cause and the NYT.
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
Please note our new address:
10411 Motor City Dr., Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
_www.wjlaw.com_ (http://www.wj/)
bzall at aol.com
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In a message dated 4/23/2012 12:02:45 A.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
Does anyone have an opinion on whether, under the IRS ruling, ALEC would
fit into the category as the group's spokesperson claimed?
On 4/22/2012 1:49 PM, Ellen Aprill wrote:
In light of the article in today's NYT on ALEC, I thought the attached IRS
ruling discussing the meaning of nonpartisan analysis, study or research
might be of interest to some on the listserv.
Ellen
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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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