[EL] Most surprising remark in today's oral argument in the Arizona redistricting case

Mon Mar 2 16:59:12 PST 2015

I spent many hours of my life on these lobbying regulations when I worked
at the Treasury Department's Office of Tax Policy in the late 80's.  Treas.
reg. 56.4911-2(b)(1)(iii)(1990) treats the public as the legislative body
for referenda, initiatives, etc. explicitly *only* for purposes of section
4911, a provision that imposes an excise tax on excess lobbying
expenditures for those 501(c)(3) charities that elect to be subject to
dollar limit, which varies according to their budget up to a maximum of
$1,000,000.  As a result, such lobbying is direct, rather than grass roots
lobbying - helpful to organizations because there are additional limits on
grass roots lobbying (which, believe me, you do not need or want to know).

Very few 501(c)(3) organizations make the election to be subject to dollar
limits for lobbying (estimated 1-2% of those eligible) rather than the
amorphous "no substantial part" of activities test.

I doubt that this particular regulatory interpretation has much general
import.

    Ellen Aprill

-------
Ellen P. Aprill
John E. Anderson Professor of Tax Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015
213-736-1157

On Mon, Mar 2, 2015 at 3:36 PM, Larry Levine <larrylevine at earthlink.net>
wrote:

> Seems I remember that the IRS has long looked at the voters as the
> legislative body in determining that non-profit organizations can spend a
> portion of their funds on lobbying and that in the case of initiative
> petition campaigns that includes lobbying the voters on the issue.
>
> Larry
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Trevor
> Potter
> *Sent:* Monday, March 02, 2015 3:21 PM
> *To:* Rosenthal, Lawrence
> *Cc:* conlawprof at lists.ucla.edu; Election Law
> *Subject:* Re: [EL] Most surprising remark in today's oral argument in
> the Arizona redistricting case
>
>
>
> Arizona has adopted a system where the power to make laws, including
> regulation of redistricting, resides with the representational legislature
> until and unless the citizens as legislators decide to take it on
> themselves ( as they did here). The redistricting commission is not a
> legislative body itself-- because as Paul Clement stated today the
> "legislature" may act to delegate all of its redistricting authority to
> such a commission. The question in the case is whether the legislature did
> so in Arizona-- which gets you back to the definitional argument over how
> broadly to read " legislature"...
>
> Sent from my iPhone
>
> On Mar 2, 2015, at 5:08 PM, Rosenthal, Lawrence <
> rosentha at chapman.edu<mailto:rosentha at chapman.edu>> wrote:
>
> So I suppose that that, on the Waxman/Lederman view, we are meant to
> understand that Arizona has two legislatures – the people of Arizona are
> somehow “the Legislature thereof” for redistricting, and the legislature of
> Arizona is “the Legislature thereof” for everything else? Actually,
> however, on this view there must be three legislatures, because the
> redistricting commission also plays a role in determining “the Manner of
> holding elections” within the meaning of the Elections Clause (at least if
> one agrees that the “manner” of holding elections includes the methodology
> for determining district boundaries). But even if we accept that the
> argument in defense of the Arizona scheme requires only two legislatures in
> Arizona, it’s still an awfully tough sell, isn’t it? Isn’t the whole point
> of the initiative process not to leave the entire lawmaking process in
> Arizona to “the Legislature thereof”? It seems to me that only a
> result-oriented lawyer could persuade himself that the initiative process
> is created a second legislature in Arizona, rather than divesting “the
> Legislature thereof” of some of its power.
>
> Larry Rosenthal
> Chapman University Fowler School of Law
>
> From: Trevor Potter [mailto:tpotter at capdale.com <tpotter at capdale.com>]
> Sent: Monday, March 02, 2015 1:50 PM
> To: Marty Lederman
> Cc: Rosenthal, Lawrence; Election Law;
> conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
> Subject: Re: [EL] Most surprising remark in today's oral argument in the
> Arizona redistricting case
>
> And the people of Arizona insisted on doing so when they drafted their
> constitution-I understand their determination to include the initiative
> process in their constitution was a bone of contention in the ratification
> process--so from the start Arizona has wanted the Arizona citizenry at
> large to serve as direct legislators , providing another avenue to the
> representative legislators. The question is whether the U.S. Constitution
> denies the state that choice under the elections clause...
>
> Sent from my iPhone
>
> On Mar 2, 2015, at 4:25 PM, Marty Lederman <
> lederman.marty at gmail.com<mailto:lederman.marty at gmail.com<mailto:lederman.marty at gmail.com%3cmailto:lederman.marty at gmail.com
> <lederman.marty at gmail.com%3cmailto:lederman.marty at gmail.com%3cmailto:lederman.marty at gmail.com%3cmailto:lederman.marty at gmail.com>>>>
> wrote:
>
> The argument is not that the Commission exercises the legislative
> power--it is that the people of Arizona did.
>
> On Mon, Mar 2, 2015 at 4:19 PM, Rosenthal, Lawrence <
> rosentha at chapman.edu<mailto:rosentha at chapman.edu<mailto:rosentha at chapman.edu%3cmailto:rosentha at chapman.edu
> <rosentha at chapman.edu%3cmailto:rosentha at chapman.edu%3cmailto:rosentha at chapman.edu%3cmailto:rosentha at chapman.edu>>>>
> wrote:
> I am always struck by how poorly even accomplished advocates use
> historical evidence. Perhaps because lawyers advocates used to
> cherry-picking evidence and not historians trained to be sensitive to
> context and holistic evaluation of the evidence, it seems to me that
> lawyers are unusually adept at talking themselves into what are truly
> terrible arguments based on isolated historical evidence. Does anyone
> really think that it is fair to read the phrase “the Legislature thereof,”
> when it comes to Arizona, to refer to its redistricting commission? It’s
> almost impossible to say with a straight face: How can Arizona’s
> legislature somehow not be its “legislature” for purposes of this case?
> Apparently, we are supposed to believe that Arizona has two legislatures,
> one for redistricting and the other for everything else, although even this
> tortured view is hard to fit with the Elections Clause’s reference to a
> singular legislature “the Legislature thereof”). I must confess that my
> reaction to this argument differs little from that of Justice Scalia.
>
> As a policy matter, I quite agree with the use of citizen redistricting
> commissions. I also have a great deal of sympathy with the argument that
> Congress has authorized the Arizona scheme (an argument that Mr. Waxman
> confined to about three pages of his brief). But the argument that the
> Arizona legislature is not the Arizona legislature when it comes to
> redistricting strikes me a sure loser. I wonder how Mr. Waxman persuaded
> himself otherwise.
>
> Larry Rosenthal
> Chapman University Fowler School of Law
>
> From:
> conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu
> <conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu>>>
> [
> mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>
> <conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3e>
> ]<
> mailto:[mailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3e]
> <[mailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3e]>>
> On Behalf Of Marty Lederman
> Sent: Monday, March 02, 2015 11:04 AM
> To:
> conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu%3cmailto:conlawprof at lists.ucla.edu
> <conlawprof at lists.ucla.edu%3cmailto:conlawprof at lists.ucla.edu%3cmailto:conlawprof at lists.ucla.edu%3cmailto:conlawprof at lists.ucla.edu>>>;
> Election Law
> Subject: Most surprising remark in today's oral argument in the Arizona
> redistricting case
>
> SETH WAXMAN: The meaning of the word "legislature" that we advocate ["the
> power that makes laws," which Waxman derived from Samuel Johnson's
> Dictionary of English Language (10th ed. 1792) and Noah Webster's
> Compendious Dictionary of the English Language (1806)] . . . was, in fact,
> the consensus definition of "legislature."
>
> JUSTICE SCALIA: . . . . I don't think it was a consensus definition at
> all. You've plucked that out of a couple of dictionaries.
>
> [I was present in the Courtroom and can attest that the last sentence was
> uttered with derision. I probably was not the only one who was somewhat
> alarmed to hear that, given the source.]
>
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