[EL] Supreme Court Case Today Discusses Earlier Case Banning 501(c)(3) Lobbying and Elections Case

[Rick Hasen]

<http://electionlawblog.org/>


    Supreme Court Case Today Discusses Earlier Case Banning 501(c)(3)
    Lobbying and Elections Case <http://electionlawblog.org/?p=51876>

Posted on June 20, 2013 7:46 am <http://electionlawblog.org/?p=51876> by 
Rick Hasen <http://electionlawblog.org/?author=3>

>From AID v. Open Society Int'l 
<http://www.supremecourt.gov/opinions/12pdf/12-10_21p3.pdf>:

    A comparison of two cases helps illustrate the distinction: In Regan
    v. Taxation With Representation of Washington, the Court upheld a
    requirement that nonprofit organizations seeking tax-exempt status
    under 26 U. S. C. §501(c)(3) not engage in substantial efforts to
    influence legislation. The tax-exempt status, we explained, "ha[d]
    much the same effect as a cash grant to the organization."461 U. S.,
    at 544. And by limiting §501(c)(3) status to organizations that did
    not attempt to influence legislation,Congress had merely "chose[n]
    not to subsidize lobbying." Ibid. In rejecting the nonprofit's First
    Amendment claim,the Court highlighted---in the text of its opinion,
    but see post, at 5---the fact that the condition did not prohibit
    that organization from lobbying Congress altogether. By returning to
    a "dual structure" it had used in the past---separately
    incorporating as a §501(c)(3) organization and §501(c)(4)
    organization---the nonprofit could continue to claim §501(c)(3)
    status for its nonlobbying activities, while attempting to influence
    legislation in its §501(c)(4) capacity with separate funds. Ibid.
    Maintaining such a structure, the Court noted, was not "unduly
    burdensome." Id., at 545, n. 6. The condition thus did not deny the
    organization a government benefit "on account of its intention to
    lobby." Id., at 545.

    In FCC v. League of Women Voters of California, by contrast, the
    Court struck down a condition on federal financial assistance to
    noncommercial broadcast television and radio stations that
    prohibited all editorializing, including with private funds. 468 U.
    S. 364, 399--401 (1984).Even a station receiving only one percent of
    its overall budget from the Federal Government, the Court explained,
    was "barred absolutely from all editorializing." Id., at 400. Unlike
    the situation in Regan, the law provided no way for a station to
    limit its use of federal funds to noneditorializing activities,
    while using private funds "to make known its views on matters of
    public importance." 468 U. S., at 400. The prohibition thus went
    beyond ensuring that federal funds not be used to subsidize "public
    broadcasting" and instead leveraged the federal funding to regulate
    the stations' speech outside the scope of the program. Id., at 399
    (internal quotation marks omitted).

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Rick Hasen
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UC Irvine School of Law
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