I agree with the analysis of Professors Tobin, Lacy and Foley.  
One thing that has always puzzled me is that in the media 
coverage of 527s as a way around BCRA, the emphasis is on issue 
advocacy, and not supporting any candidate or party.  Yet to be 
a 527, the organization must engage in an exempt function, which
is influencing or attempting to influence an election.  Is there
a disconnect here?

Steven H. Sholk, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
One Riverfront Plaza
Newark, New Jersey 07102-5496
(973) 596-4639 (Phone)
(973) 639-6338 (Fax)
ssholk@gibbonslaw.com (e-mail)


-----Original Message-----
From: Donald Tobin [mailto:tobin.46@osu.edu] 
Sent: Saturday, December 13, 2003 9:26 PM
To: WewerLacy@aol.com; foley.33@osu.edu; election-law@majordomo.lls.edu
Subject: Re: 527s


Although most 527s would argue the issue is clear, I, and others, have
argued otherwise (see Glenn Moramarco before the House Committee on Ways
and
Means (2000)).  It is my view that most federal 527s qualify as
political
committees (or at least should be considered a political committee).

In order to qualify as a 527 involved in Federal advocacy, the
organization
must claim that it is organized and operated primarily to influence or
attempt to influence the selection, nomination, election or appointment
of
any individual to Federal office.

A "political committee" is "any committee, club, association . . . which
receives contributions aggregating in excess of $1,000 during a calendar
year or makes expenditures aggregating in excess of $1,000 during a
calendar
year." Contributions and expenditures are defined as anything of value
for
the purpose of influencing the nomination or election of a candidate for
federal office.

So on its face a political organization would be a political committee.
But, Buckley limited the definition of political committee, with regard
to
the expenditure provision (not necessarily with regard to the
contribution
provision).  Buckley limited the definition in the expenditure context
to
organizations whose "major purpose" is the "nomination or election of a
candidate."

If a 527 claims that its primary purpose is to influence the selection,
nomination, election or appointment of any individual to federal office
(which it must do to be a 527), why isn't that the same as claiming the
major purpose is the nomination or election of a candidate?"  527s
should
not be able to have it both ways.

I understand there are counter-arguments, but I do not think the
express/issue advocacy distinction is the only one that is relevant in
this
context. I think 527s that claim their primary purpose is to elect
people to
federal office are political committees and thus subject to regulation
under
FECA and McCain-Feingold

Donald Tobin
Moritz College of  Law
The Ohio State University

----- Original Message ----- 
From: <WewerLacy@aol.com>
To: <foley.33@osu.edu>; <election-law@majordomo.lls.edu>
Sent: Saturday, December 13, 2003 1:10 PM
Subject: Re: 527s

In a message dated 12/12/03 3:24:48 PM, foley.33@osu.edu writes:

<<  is that a "political committee" is an
organization whose "major purpose" is to influence federal elections.

It

seems to me, and I think both Buckley and McConnell support this, that

an

organization can have influencing federal elections as its "major

purpose"

even if it never engages in express advocacy.  >>

Here is a little clarity.  A Section 527 entity is a "political
organization," which means a party, committee, association, fund, or

other
organization,

whether or not incorporated, that is organized and operated primarily

for
the

purpose of directly or indirectly accepting contributions or making

expenditures

for an "exempt function."  Exempt function is defined as influencing

or

attempting to influence the selection, nomination, election or

appointment
of any

individual to Federal, state, or local public office, or office in a

political

organization, or a Presidential elector.

A 527 may certainly seek to influence, directly or indirectly, a

Federal

election without engaging in the express advocacy that would require

registration

with the FEC as a "political committee" as defined by FECA and

regulations.

James V. Lacy
Wewer & Lacy, LLP

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