[EL] Comments on IRS nonprofit politicking rulemaking

[Smith, Brad]

In answer to your question at the close of your email, to my knowledge, no, it has not.

What is quite clear is that the vast majority of commentators would prefer the IRS stop rather than proceed in the direction it is going. To say that the majority of commenters want the rulemaking to go forward is like having a group of Ohioans get on the bus for Washington, D.C. Soon they find the bus is crossing the Indiana line and headed due west. The passengers protest and demand that the bus stop. Public Citizen declares that the passengers support the trip and want the driver to keep going, because, after all, they were trying to leave Ohio.

For my money, the claimed "confusion" in the tax code has been vastly overblown, and whether or not that is true, it is, in the current environment, a rather plainly transparent attempt to provide cover for an attack on speech.


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 Larry Ottinger [larrycinthia at verizon.net]
Sent: Thursday, April 03, 2014 6:18 PM
To: law-election at department-lists.uci.edu
Subject: [EL] Comments on IRS nonprofit politicking rulemaking

I think it’s important that Mr. Trotter at CCP and Mr. Bopp see widespread agreement around the need for the current, vague “facts and circumstances” standard for nonprofit political intervention to be changed.  Indeed, addressing the vagueness of the current system is the primary stated purpose of this effort, following up on recommendations from Treasury Inspector General Ronald George.

That more than 140,000 comments were submitted, that alone does not tell you whether the commenters wanted to change the current system or not (and if so, how).  Indeed, the large number of comments easily could have been urging that the status quo be maintained and that the IRS not do anything.  Since most commenters agree that the IRS’ first attempt requires significant revisions, it is a little difficult to discern the view of commenters toward a second attempt (whether that second attempt will be part of the same rulemaking or through a separate one or at least a separate NPRM).  I understand the analysis by the Bright Lines Project as saying that about 70% would like to see a second attempt and about 30% as saying they don’t want the IRS to do anything further.

The Bright Lines Project is headed by leading, thoughtful exempt-organization practitioners, who crafted bright line recommendations because of the vagueness problems of the current system.  The Bright Lines Project’s recommendations actually would be less restrictive of nonpartisan political engagement than the current system that chills First Amendment rights.  My sense is that the Bright Lines Project has sought the input and participation of folks like Mr. Smith and Mr. Bopp in this endeavor, but the relevant people can best answer that.

Based on public statements and writings, including the comments, there seems to be important areas of agreement to change and improve upon the current system.

Larry Ottinger
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