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

[BZall at aol.com]

Well, I was going to let this lie fallow. After all, Ellen criticized me  
for incompletely describing Rev. Rul. 70-79, but I simply summarized the 
ruling  and QUOTED the IRS Exempt Org Division's own internal training 
materials:   "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, 
_http://www.irs.gov/pub/irs-tege/eotopicp97.pdf_ (http://www.irs.gov/pub/irs-tege/eotopicp97.pdf) ,  
see pp. 275; see also pp. 302, 274-76. As to the complaint that I was  
mixing the rules for electing and non-electing charities: that 1997 IRS CPE  
text contains our most substantive explanation of the rules governing BOTH  
electing and non-electing charities. Since we have no definition of lobbying 
for  non-electing charities, it's useful to include the IRS's own thinking on 
what it  means; Ellen offered the 1970 Rev.Rul. and I added the 1997 IRS 
interpretation  from the two IRS EO specialists expected to know, who quoted 
several other  useful Rulings. I was negligent in not mentioning and 
explaining the distinction  for those who think they understand it but don't really 
(see below). We had a  whole thread on this some time back. 
 
As to Ellen's question of whether having legislators as members should  
affect whether given actions are considered lobbying (and leaving aside Judy 
and  Jack's CPE analysis), Ellen, you mentioned only analogizing to testimony 
(e.g.,  Treas. Regs. 53.4945-2(d)(2)); I would suggest you consider another 
element  of non-partisan analysis: public (or at least non-targeted) 
distribution (under  -2(d)(1)). One explanation is that it is not so much whether 
legislators are  members so much as it is the use of the materials for public 
education  or advocacy communications. One key to the "making available" 
regs is  whether the communication is directed only to "persons who are 
interested solely  in one side of a particular issue." E.g., Treas. Regs. 
53.4945-2(d)(1)(iv); see  also Example 10 (organization that did not make 
substantial distribution of a  nonpartisan report prior to or contemporaneous with a 
lobbying  communication).  Even legislators can educate. On the spectrum of  
research and education, issue advocacy, lobbying, and electioneering, it 
would  appear that it is as much the principal use of the materials as the 
happenstance  of who receives it. So, for example, the incidental receipt of a 
newsletter by a  legislator who also happens to be a member of the 
organization should not (and  does not) convert the genuinely educational or issue 
advocacy nature of the  publication into a lobbying message. And see also 
subsequent use (as I mentioned  yesterday), -2(d)(1)(v); it would seem the 
subsequent use rules would affect  your analysis. (Oh, and given your insistence 
on the Sect. 115 character of NCSL  being critical, I wonder about your 
analysis of their c3 foundation in this  specific context?)
 
And finally, there are enough non-exempt organization lawyers on this list  
that I can't let Mark Schmitt's comment stand without a warning. Please  do 
not use Mark Schmitt's comment as a guide to lobbying analysis,  especially 
of private foundation activities. Private foundations'  legislative 
activities are governed, in part, by IRC section 4945, and  Treas. Regs. 53.4945-2, 
"Propaganda influencing legislation", which is, in its  modern version, 
expressly tied to IRC Section 4911 (for electing charities).  See, e.g., Treas. 
Regs. 53.4945-2(a)(1). And, of course, the original topic of  discussion 
("Nonpartisan analysis, study, or research") is treated explicitly in  Treas. 
Regs. 53.4945-2(d)(1), which also includes the "directly  encouraging" 
definition. -2(d)(1)(vi). And see especially Examples 8, 9, 10 and  11.  Go to 
the IRS (or very well-done Alliance for Justice, 
_http://www.afj.org/for-nonprofits-foundations/about-advocacy/lobbying.html_ 
(http://www.afj.org/for-nonprofits-foundations/about-advocacy/lobbying.html) )  materials for more. (His 
point about whether ALEC should elect to be governed by  the mechanical 
test, on the other hand, is perfectly valid opinion.) 
 
I won't cover all the rest lest this limited topic grow new  wings. 
 
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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