Marty's counclusion that the OGC draft would not "necessarily" sweep up
unregulated tax-exempts, and the law in this area is "confusing", should
certainly confirm rather than allay the fears of those organizations. It is
clear that the OGC draft sets up the argument against them, even if "not
necessarily" with sure success. 

The problem with the discussion of this issue is that it is divorced from
what the McConnell Court called the "realities" of legal vulnerability in
this area. Assume a tax-exempt, in operation for a number of years, that
concludes in the last three years of a particular Administration that its
policies present a major threat to the policies the organization has
advocated since its formation. Assume that memos and emails fly back and
forth about the need to fight the "Bush program", with plenty of commentary
about "getting him and his henchmen out of there in November." And assume
that the organization proceeds to spend the preponderance of its program
funds on communications the unfavorably, even savagely, attacks the
President on the policies in dispute. And along the way, in an interview.
the CEO of the tax-exempt says: "These policies must be stopped.  They are
an unprecented threat to the welfare of the people. And we plan to make sure
they understand what is at stake this year", i.e. the election year.

Major purpose? Measured how?  Complaints? Investigations? Legal fees? Oh,
never mind: the legal fees are OK. 

What is also notable is the assumption that if "major purpose" is
established, then regulation should proceed without objection. There is no
requirement of candidate or party control, or coordination": just that the
group wishes to influence elections. This is a far cry from the fact or
appearance of corruption. It is in fact political action.

Which brings us to 441b. A tax-exempt that defends on precisely this ground,
will likely be answered by appeal to 441b, to the broader "in connection
with standard". Having argued Buckley, they will face Austin.