[EL] Jim DeMint and Heritage Foundation's 501(c)(3) status
Smith, Brad
BSmith at law.capital.edu
Thu Dec 13 09:45:16 PST 2012
Whether the DISCLOSE Act is well-designed depends, I suppose, I what you want to accomplish. If your goal is to make speaking more difficult, deter some from speaking, and mislead the public as to whether or not certain people are funding ads generally or particular ads, yes, it is well-designed.
It is, of course, the norm for researchers to reveal funding sources. But while I appreciate Craig's concerns that this is necessary to reveal industry-funded research, should we not be equally concerned about Foundation funded research, and generally non-profit funded research? Would that, in campaign finance at least, the pro-regulatory community displayed such concerns when studies by partisan advocates have been used as proof of the need for regulation, and funders - though admittedly not industry - were assured that the research would stop if it did not seem to support pre-determined conclusions.
And why should we presume to trust a biased author funded by the university over an unbiased author funded by a different interest? For reasons Craig has suggested, I don't object to disclosure of funding for academic research, but I do object to the belief that it is a primary indicator of bias, as opposed to, say, known bias.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Craig Holman [holman at aol.com]
Sent: Thursday, December 13, 2012 11:13 AM
To: law-election at uci.edu
Subject: Re: [EL] Jim DeMint and Heritage Foundation's 501(c)(3) status
Hi Sean:
When I say "should," I am suggesting that there are grounds for mandating such disclosures if it appears abuses are getting out of hand. There are several cases of studies offered as independent academic research in climate science denial, for example, that were secretly funded by industries that desired such conclusions from the studies. See, for example, http://www.scientificamerican.com/article.cfm?id=who-funds-contrariness-on
This suggestion regarding disclosures by think tanks has only peripheral applicability to the DISCLOSE Act. My concern about think tanks -- and academics -- is funded-driven research, which can sometimes taint the analysis and conclusions. Academic integrity calls for researchers to disclose grants behind a specific research study.
The DISCLOSE Act, on the other hand, is about electioneering activity (not academic integrity) and it is very well designed, following the disclosure regime of BCRA, in which any outside group or nonprofit organization that wants to make significant electioneering expenditures may choose one of two options for disclosure: (1) establish a specific electioneering account, in which funds are not co-mingled with general treasury funds, and disclose only those contributions made to the electioneering account; or (2) if an outside group does not want to establish a separate electioneering account but makes significant electioneering expenditures anyway from general treasury funds, then the group must disclose all donors.
If any think tank chooses to pursue electioneering activity, it too should be subject to the same electioneering disclosure requirements that apply to everyone else.
Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com
-----Original Message-----
From: Sean Parnell <sean at impactpolicymanagement.com>
To: 'Craig Holman' <holman at aol.com>; law-election <law-election at uci.edu>
Sent: Thu, Dec 13, 2012 10:53 am
Subject: RE: [EL] Jim DeMint and Heritage Foundation's 501(c)(3) status
Thanks for your response Craig. Not wanting to put words in your mouth, when you say think tanks *should* disclose funding for specific projects, are you advocating for a legal requirement, or simply that it should be the expected ethical norm? There’s a big difference, obviously.
Worth noting, the distinction Craig makes between funding for specific projects and general treasury spending on projects seems to have some applicability towards the general discussion of the DISCLOSE Act and similar proposals.
Best,
Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA 22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu?>] On Behalf Of Craig Holman
Sent: Thursday, December 13, 2012 9:50 AM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Jim DeMint and Heritage Foundation's 501(c)(3) status
Sean:
In academic circles, it is widely considered appropriate ethics practice to disclose funders behind a specific research project. The same principle should apply to think tanks. If a grant is provided for a specific research project, the source should be disclosed. However, think tanks -- like other academic institutions -- should not be required to disclose the sources of funds provided to a think tank's general treasury with no contingency requirements for a specific project.
Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com<mailto:Holman at aol.com>
-----Original Message-----
From: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>
To: 'Rick Hasen' <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; 'Ellen Aprill' <ellen.aprill at lls.edu<mailto:ellen.aprill at lls.edu>>
Cc: 'law-election at UCI.edu<mailto:law-election at UCI.edu>' <law-election at uci.edu<mailto:law-election at uci.edu>>
Sent: Thu, Dec 13, 2012 9:15 am
Subject: Re: [EL] Jim DeMint and Heritage Foundation's 501(c)(3) status
Politico has an op-ed today related to DeMint’s taking over at Heritage, it raises some interesting points and questions: http://www.politico.com/story/2012/12/washingtons-evolving-think-tanks-84926_Page2.html
The troubling part (well, a troubling part) was buried at the end, where the writer suggests that think tanks should be required to disclose their donors and be regulated as lobbying operations.
Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA 22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu?>] On Behalf Of Rick Hasen
Sent: Thursday, December 13, 2012 12:50 AM
To: Ellen Aprill
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] Jim DeMint and Heritage Foundation's 501(c)(3) status
Here's an NPR story on DeMint and Heritage's 501(c)(3) status:
http://www.npr.org/blogs/itsallpolitics/2012/12/10/166890669/demint-and-heritage-playing-off-each-others-strengths?sc=17&f=1014
Rick
On 12/12/12 2:30 PM, Ellen Aprill wrote:
Yes, indeed. Thanks, John.
Ellen
-------
Ellen P. Aprill
John E. Anderson Professor of Tax Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015
213-736-1157
On Wed, Dec 12, 2012 at 1:49 PM, John Pomeranz <jpomeranz at harmoncurran.com<mailto:jpomeranz at harmoncurran.com>> wrote:
True, Ellen, but he’s going to need to be careful to avoid any use of Heritage Foundation resources – lists, staff, websites and social media, non-public information, etc. – in any 501(c)(3)-prohibited “personal” electoral effort. Any 501(c)(3) subsidy of such electoral efforts would be a problem for the 501(c)(3).
I note that the Heritage Foundation has a related 501(c)(4) organization (Heritage Action for America). Assuming that DeMint is going to be involved with the 501(c)(4) as well as the Foundation (as is often the case with leaders of 501(c)(3)s that have affiliated 501(c)(4)s), this other organization would provide him with ample opportunity for political activity. The 501(c)(4) may receive unlimited contributions that are generally not disclosed to the public, and it may spend those funds for independent efforts to support or oppose candidates (provided the 501(c)(4)’s primary purpose remains its “social welfare” activity and not partisan electioneering).
John Pomeranz
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M Street, NW, Suite 600
Washington, DC 20036
p: 202.328.3500
f: 202.328.6918
e: jpomeranz at harmoncurran.com<mailto:jpomeranz at harmoncurran.com>
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Ellen Aprill
Sent: Wednesday, December 12, 2012 4:16 PM
To: Aaron Blake
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] Jim DeMint and Heritage Foundation's 501(c)(3) status
Officers of a 501(c)(3) do not lose their First Amendment rights to endorse candidates in their individual capacity. Title and affiliation can even be included, with the IRS advising including "for identification purposes only."
See examples 3-6 of the attached revenue ruling.
Ellen
-------
Ellen P. Aprill
John E. Anderson Professor of Tax Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015
213-736-1157
On Wed, Dec 12, 2012 at 1:10 PM, Aaron Blake <blakea at washpost.com<mailto:blakea at washpost.com>> wrote:
There seems to be some chatter that DeMint might increase his
political power at the Heritage Foundation.
My question is, does the fact that Heritage is a 501(c)(3) affect
that? Doesn't that mean he has less latitude to get involved with
political campaigns, etc.? Can he even endorse candidates?
Anybody have some thoughts on this?
Best,
Aaron Blake
Washington Post
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