[EL] 501(c)(3)s and Impeachment Advocacy

[Tim Mooney]

I appreciate the kind words regarding my article - a couple of thoughts on the comments so far:

- I think recalls are analogous but only to the point that there's an officeholder potentially being removed from office. The key distinction between them is that a recall is executed with a subsequent election and impeachment is not. Impeachment is a Constitutional quasi-legislative process that happens to impact whether someone continues in office, but there's no candidate  since the election is very much in the rear-view mirror. Coincidentally I wrote a piece back in 2003 during the CA gubernatorial recall that concluded that (c)(3)s could educate the public on the recall process, but not engage in the substance because of tax law's electioneering prohibition.

-  That said, (c)(3)s don't get a free pass on this. The Service would apply a facts and circumstances analysis when considering a (c)(3) taking a position on impeachment of an officeholder who is simultaneously a candidate (whether for re-election or for a different office). I think it's clear a (c)(3) that uses its support of impeachment as a proxy for opposition of the candidacy steps over the line. However, I think a facts and circumstances analysis can support (c)(3) activity on impeachment based on the factors I outlined in the piece.

- The reference to Sampson is well-taken, but I think its application is more useful for the facts and circumstances analysis. I also wonder if we read it that broadly, would that prohibit a (c)(3) from calling for the resignation of an officeholder? Certainly that is commenting on fitness of the person, just like impeachment. I don't think the Service has spoken on this, but my instinct is the electioneering prohibition does not stretch that far either.

- I agree regarding the judicial nominations analogy. My Alliance for Justice colleagues on the other side of the office certainly have engaged in a bit of that activity!

Tim Mooney
Senior Counsel
Alliance for Justice | Alliance for Justice Action Campaign
Eleven Dupont Circle NW, 5th Floor
Washington, DC 20036
(202) 822-6070 | tim.mooney at afj.org<mailto:tim.mooney at afj.org>
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