[EL] non-profit political activity and the IRS

[Smith, Brad]

The narrower FEC reading is, in fact, dictated by Buckley v. Valeo. Coupled with Regan v. No Taxation without Representation, it is clear that the IRS and FEC definitions either must be kept separate, or the IRS definition could (but is not constitutionally required to) be brought into harmony with the FEC definition. But the FEC definition, per Buckley, must remain per Buckley narrower than that allowed to the IRS by Regan. 



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 John Pomeranz [jpomeranz at harmoncurran.com]
Sent: Wednesday, May 15, 2013 5:18 PM
To: Scarberry, Mark; law-election at uci.edu
Subject: Re: [EL] non-profit political activity and the IRS

The IRS definitions of political activity are, I thing all would agree, broader than the FEC’s definitions, and thus the FEC’s determination of whether an entity is a “political committee” required to register and report is independent of whether the entity has engaged in political campaign intervention for IRS purposes.

You can find related discussion of this in the IRS Continuing Professional Education chapter on Election Year Activities (http://www.irs.gov/pub/irs-tege/eotopici02.pdf, see page 346 et seq.) and in the April 2004 hearings held by the FEC on proposed regulation of 527 groups (where I, Ned Foley, and others on this list testified on the topic – how long ago that now seems!).

John

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, May 15, 2013 5:04 PM
To: law-election at uci.edu
Subject: Re: [EL] non-profit political activity and the IRS

I thought the FEC would need to understand the rules on (c)(4) corporations in order to determine whether a corporation is obligated to disclose its donors, especially where no letter has been obtained from the IRS confirming (c)(4) status.

Mark

From: Beth Kingsley [mailto:bkingsley at harmoncurran.com]
Sent: Wednesday, May 15, 2013 12:56 PM
To: Scarberry, Mark; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: RE: [EL] non-profit political activity and the IRS

Not to suggest that Lois doesn’t understand the IRS rules – I’m quite sure she does – but knowing FEC rules doesn’t provide any basis for grappling with the very different IRS rules.

Beth

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] On Behalf Of Scarberry, Mark
Sent: Wednesday, May 15, 2013 2:11 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] non-profit political activity and the IRS

As I noted before, Lois Lerner was a former high-ranking attorney with the FEC (head of the enforcement division, acting general counsel, etc.). She, at least, had to have understood the rules.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



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] On Behalf Of Schultz, David A.
Sent: Wednesday, May 15, 2013 11:02 AM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: [EL] non-profit political activity and the IRS

As I heard it on the news today the IRS said that many of its staff were confused about the rules regarding political activity for non-profits.
I teach both election law and non-profit law.  I am enclosing a "quick and dirty" handout from a talk I gave last year on rules for non-profits.  This is FYI.  My point is that if I can figure this out so can the IRS.

--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
FacultyRow SuperProfessor, 2012, 2013
As