[EL] 501(c)(3)s and Political Campaign Intervention

[Benjamin Barr]

Adam,

In always-helpful IRS-speak, it has explained in Ruling 2007-41, that
"close" means "shortly."  The 2006 IRS Phone Forum (
http://www.irs.gov/pub/irs-tege/election_involvement_by_charities.pdf) also
is enlightening.  "Close" to an election means "shortly" before an
election.  I wish I was making this stuff up.

Of course, timing alone may be irrelevant.  It's the "in context" fudging
of factors that's troubling.  And most of the factors are difficult enough
in and of themselves, like no one knowing what "close" to an election
means.  Fudge the factors a bit more and speech "shortly" before an
election that is part of an "ongoing series of substantially similar
advocacy communications," and is timed to "coincide with a nonelection
event" might be safe (with the IRS deciding which events qualify as
nonelection events and which do).  But speech not so "close" to an
election, mentioning a candidate, not part of substantially similar
advocacy campaigns, and not timed to nonelection events could be
problematic.

The IRS offers this handy advice here: I.R.S. Tech. Adv. Mem. 89-36-002
(Sept. 8, 1989) about timing to explain that issuing ads shortly before a
November election is "troublesome."  There "shortly" meant on Oct. 21, 1984
and just before a presidential debate.  However "troubling" the timing was
there, the IRS explained that the organization "probably did not intervene
in a political campaign."  Probably.  So, the determination of "close"
might be affected by electoral events near the communication (candidate
forums, electoral controversies outside the control of the nonprofit
speaker, and so on), along with the imposition of every other factor that
can weigh for or against the timing determination (each of which is not
given a stated weighted preference or value for objective determination).

Then again, "it's just disclosure."

Best of luck!

Forward,

First Amendment Ben





On Thu, Jun 13, 2013 at 4:47 PM, Adam Bonin <adam at boninlaw.com> wrote:
>
> Among the recognized factors for determining whether a particular
501(c)(3) communication regarding a candidate constitutes campaign
intervention is “whether the statement is delivered close in time to the
election.”  Has the IRS provided any guidance, through Revenue Rulings and
the like, as to how “close” constitutes “close”? Are we talking weeks, a
month, three months, etc?
>
>
>
> Adam C. Bonin
> The Law Office of Adam C. Bonin
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> Philadelphia, PA 19103
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>
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>
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