[EL] About those Public Citizen numbers

Tue Apr 1 12:49:41 PDT 2014

Please Craig, we are not fools. We all understand quite well the purpose of public citizens release.

Sent from my iPhone

On Apr 1, 2014, at 3:41 PM, "Craig Holman" <holman at aol.com<mailto:holman at aol.com>> wrote:

Hello Brad and Luke:

I see you are attempting to challenge the methodology behind Public Citizen's analysis of the comments to the IRS/Treasury rulemaking on the definition of political intervention, in which Public Citizen found that 67% of the organizational comments favor moving ahead with the rulemaking process.

The finding should not be so surprising. Few of the groups affected by the current "facts and circumstances" test defend such a subjective standard for evaluating tax exempt status. And the methodology is very straightforward. The purpose of this analysis is to debunk those 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 analysis conflates widespread desire to change the rules governing nonprofits with support for the IRS’s Notice of Proposed Rulemaking, and ignores the full context of the comments we analyzed.  As we stated in our original release, our analysis provides an accurate measure of those organizations who want different rules to govern nonprofits at the conclusion of the current rulemaking process.

The analysis at issue was conducted using a simple test.  Every comment with the organization field filled out was reviewed.  Once duplicates and comments on behalf of organization members rather than the organization itself were eliminated, the comment was reviewed to determine whether the organization wanted the rules governing nonprofits to be changed as a result of the rulemaking process.  The context of the entire comment was taken into account.  Thus, when organizations supported revising the NPRM they were counted as supporting changes to the rules, regardless of their use of the word “withdraw.”  See, for example, the Alliance for Justice sign-on comment<http://www.regulations.gov/#!documentDetail;D=IRS-2013-0038-131919> (“We request that Treasury and the IRS withdraw the proposed regulation and work with the regulated community to develop a better approach.”).

Similarly, some organizations that suggested changes to the NPRM were counted as against further rulemaking even when they proposed changes to the NPRM if it was clear from context that further rulemaking was opposed.  See, for example, Heritage Action for America’s<http://www.regulations.gov/#!documentDetail;D=IRS-2013-0038-102069> comment (“If, however, the IRS proceeds further, then the IRS should adopt the changes to the Proposed Regulation in the NPRM recommended below, for the reasons given”).

Our analysis never purported to determine whether or to what degree organizations supported enacting the rules as proposed.  In fact, the press release<http://www.citizen.org/documents/cw21c-BLP%20comment%20analysis%20FINAL.pdf> Wachob cites acknowledges that “nearly none” of the organizations support adopting the NPRM with no changes.  Indeed, the comments from Public Citizen and the Bright Lines Project spend many pages critiquing the NPRM, and themselves call for revised rules.

We are in the process now of providing a further breakdown of the types of changes to the rules that different organizations are proposing in their comments, but given that staggering number of comments, this will take a little while. Suffice it to say that our initial analysis substantiates that most organizations affected by the rules governing 501(c)(4) tax status want those rules to change and overwhelmingly favor moving ahead with the rulemaking process.

The Bright Lines Project and Public Citizen welcome robust discussion of our results.  Our data may be found here<http://www.citizen.org/documents/2014-03-26%20Orgs%20wanting%20to%20continue.pdf>.

The Bright Lines Project has been working for years to create clear, fair rules that would apply to all nonprofits.  The IRS has an opportunity to correct decades of uncertainty with new rules and we – like most other commenters – support their efforts to do so, even though we want some modifications with the rules as 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<mailto:Holman at aol.com>

-----Original Message-----
From: Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
To: law-election at UCI.edu<mailto:law-election at UCI.edu> <law-election at uci.edu<mailto: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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