[EL] ...but a lousy final exam question on 501(c)(3) political campaign intervention

[John Pomeranz]

You cite the amusing Yale Record<http://yalerecord.org/2016/10/26/the-yale-record-does-not-endorse-hillary-clinton/> non-endorsement of Hillary Clinton as a good express advocacy final exam question.  While I realize that this Ivy League version of the Onion is playing it for laughs, I note that the IRS would not buy the argument that this 501(c)(3) organization has avoided prohibited political campaign intervention by declaring “both candidates to be equally un-endorsable” and steadfastly “not endorsing” Hillary Clinton while extoling her many virtues.  The IRS has long assured us (and the Supreme Court supports the view) that the ban on 501(c)(3) electioneering is far broader than mere express advocacy.  Even under the current, vague (perhaps unconstitutionally so) “facts and circumstances” analysis that the IRS uses to evaluate possible political campaign intervention, it seems certain to me that the IRS would find that the Record crossed the 501(c)(3) line.

Perhaps one day we will have regulations defining political activity that will clarify the matter for Eli humorists and tax-exempt organizations everywhere.  For now, alas, Republicans in Congress continue to keep the Treasury rulemaking on exempt organization political activities frozen via the recently extended rider on the continuing resolution that kept the government open until December.  Maybe after the election Congress will give Treasury a chance to propose new regulations in this area.  That would almost certainly yield a terrific final exam question for those teaching exempt organization tax law!

<http://electionlawblog.org/>

John Pomeranz
Harmon, Curran, Spielberg & Eisenberg, LLP
1725 DeSales Street, NW, Suite 500
Washington, DC  20036
p: 202.328.3500
f: 202.328.6918
e: jpomeranz at harmoncurran.com


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