[EL] About those Public Citizen numbers

Tue Apr 1 12:35:33 PDT 2014

Hello Brad and Luke:

I see you are attempting to challenge themethodology behind Public Citizen's analysis of the comments to theIRS/Treasury rulemaking on the definition of political intervention, in whichPublic Citizen found that 67% of the organizational comments favor moving aheadwith the rulemaking process. 

The finding should not be so surprising. Few ofthe groups affected by the current "facts and circumstances" testdefend such a subjective standard for evaluating tax exempt status. And themethodology is very straightforward. The purpose of this analysis is to debunkthose who argue that most commenters do not want the rulemaking to go forward,an inaccuracy too often repeated in the press.

Luke Wachob’s piece regarding our analysisconflates widespread desire to change the rules governing nonprofits withsupport for the IRS’s Notice of Proposed Rulemaking, and ignores the fullcontext of the comments we analyzed.  As we stated in our originalrelease, our analysis provides an accurate measure of those organizations whowant different rules to govern nonprofits at the conclusion of the currentrulemaking process. 

The analysis at issue was conducted using asimple test.  Every comment with the organization field filled outwas reviewed.  Once duplicates and comments on behalf of organizationmembers rather than the organization itself were eliminated, the comment wasreviewed to determine whether the organization wanted the rules governingnonprofits to be changed as a result of the rulemaking process.  Thecontext of the entire comment was taken into account.  Thus, whenorganizations supported revising the NPRM they were counted as supportingchanges to the rules, regardless of their use of the word “withdraw.”  See,for example, the Alliance for Justice sign-on comment (“We request that Treasury and the IRS withdraw the proposedregulation and work with the regulated community to develop a better approach.”).  

Similarly, some organizations that suggestedchanges to the NPRM were counted as against further rulemaking even when theyproposed changes to the NPRM if it was clear from context that furtherrulemaking was opposed.  See, for example, Heritage Action for America’s comment(“If, however, the IRS proceeds further, then the IRS should adopt the changesto the Proposed Regulation in the NPRM recommended below, for the reasonsgiven”).

Our analysis never purported to determinewhether or to what degree organizations supported enacting the rules asproposed.  In fact, the press release Wachob citesacknowledges that “nearly none” of the organizations support adopting the NPRMwith no changes.  Indeed, the comments from Public Citizen and theBright Lines Project spend many pages critiquing the NPRM, and themselves callfor revised rules. 

We are in the process now of providing a furtherbreakdown of the types of changes to the rules that different organizations areproposing in their comments, but given that staggering number of comments, thiswill take a little while. Suffice it to say that our initial analysissubstantiates that most organizations affected by the rules governing 501(c)(4)tax status want those rules to change and overwhelmingly favor moving aheadwith the rulemaking process. 

The Bright Lines Project and Public Citizenwelcome robust discussion of our results.  Our data may befound here.

The Bright Lines Project has been working foryears to create clear, fair rules that would apply to allnonprofits.  The IRS has an opportunity to correct decades ofuncertainty with new rules and we – like most other commenters – support theirefforts to do so, even though we want some modifications with the rulesas proposed so far.  

Emily Peterson-Cassin
Bright Lines Project Coordinator
Congress Watch

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: Smith, Brad <BSmith at law.capital.edu>
To: law-election at UCI.edu <law-election at uci.edu>
Sent: Tue, Apr 1, 2014 12:16 pm
Subject: [EL] About those Public Citizen numbers

http://www.campaignfreedom.org/2014/04/01/cooking-the-numbers-public-citizens-recipe/

"Public Citizen claims that '67 percent of the organizational comments favored going ahead with [the IRS campaign finance] rulemaking,'

*** 

"To recap:  The Alliance for Justice and 64 other groups say 'withdraw the proposed regulation,' and Public Citizen hears 'go ahead.' The Alliance Defending Freedom and 26 other groups say 'they should be withdrawn,' and Public Citizen hears 'go ahead.' The Funders’ Committee for Civic Participation and 51 other groups say 'restart the process,' and Public Citizen hears 'go ahead.'... If this is support for the rulemaking process, I would hate to see what opposition looks like."

[includes links to actual comments]

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

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