[EL] IRS discussion of nonpartisan analysis, study or research

[Ellen Aprill]

As often, I both agree and disagree with Barnaby.  Looking at the CPE text
is a fine recommendation.  However, I don't agree with his definition of
lobbying for these purposes.  The definition he gives is that for section
501(c)(3) making an available election to limit lobbying expenses to a
particular dollar amount on a sliding scale tied to the organization's the
budget.  As others have noted on this list (see a recent email from John
Pomeranz), the IRS does not use the same definition of lobbying for
non-electing organizations.

The regulations for organizations that do make this election contain a
definition of nonpartisan analysis, study or research that might be useful,
although not directly applicable, and I attach them.  For those
organizations that make the election, lobbying does not include "*making
available* the result of nonpartisan analysis, study or research (emphasis
added), so the regs go into detail as to what it means to make available,
including subsequent use of a study in a lobbying effort.

I am still trying to sort out in my mind what it means for the lobbying
rules when a legislator in that role is a member of an organization.  If an
organization that had no legislators as members drafted model legislation
and then went to legislators urging them to adopt the model, the action
would clearly be lobbying.  It bothers me if it is possible to avoid
lobbying by making the legislator a member of the group.  I have asked
myself whether having legislators as members is  analogous to a section
501(c)(3) testifying on legislation in response to a written invitation -
another category that is considered "not lobbying."  My tentative
conclusion is not -
 individual legislators are not the same as a committee or subcommittee
conducting a hearing and joining a group is not an invitation to ask for
testimony.

Let me state again that NCSL itself is a 501(c)(4) entity or any kind of
501(c). It is a governmental affiliate. There is no lobbying restriction on
such an organization. (Such is not the case for its foundation, which is a
501(c)(3)). Also, for future reference, Guidestar includes 990's of
(c)(4)'s and other 501(c)'s.  Its database is not limited to the 990s of
501(c)(3)s.

For those who might be interested, I also attach a table I have done of
various types of government affiliates (including those that choose to
qualify as 501(c)(3) organizations), their reporting requirements,
requirements for the various categories, etc.

  Ellen


On Mon, Apr 23, 2012 at 7:17 AM, <BZall at aol.com> wrote:

> **
> 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, 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
>
> And it lists several lobbying communications on its site.
> 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, 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/ 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, 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
>
> --
> 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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>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
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> 949.824.0495 - fax
> rhasen at law.uci.edu
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> http://electionlawblog.org
>
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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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