I am no tax lawyer (as Don Tobin knows all too well from having tried to explain a tax concept to me during the Ohio State conference last fall!).  But I should think the correct response to the interesting question he poses would be that a word such as "candidate" does not have to have the same meaning in election law and in the IRC.
 
 
          Best,
 
          Daniel Lowenstein
          UCLA Law School
          405 Hilgard
          Los Angeles, California 90095-1476
          310-825-5148

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of Beth Kingsley
Sent: Thu 3/23/2006 1:08 PM
To: Donald Tobin; election-law
Subject: RE: Question re: political intervention by (c)(3)s



I do not believe the question of recall votes has ever been addressed in any precedential guidance.  I'm quite certain that a campaign to elect a judge, in states where they do that, would be covered by the c3 campaign intervention prohibition, but off the top of my head I can't come up with any authority to cite to. 

A couple years ago, a task force of the ABA's Exempt Organizations Committee put together a report and recommendations on c4's and politics.  Because we concluded that the (c)(4) non-social welfare/non-primary "political" activity was the same as the activity prohibited under the (c)(3) campaign intervention standard, and because recent events had brought attention non-traditional political activity (recounts, recall petitions, impeachment proceedings), we spent some time thinking about how to treat some of these items.  The conclusion in the final report (which represents only the individual views of the task force participants) was: 

Recall votes (despite their classification under some state laws as ballot measures) and votes held to replace a recalled official are within the ¤ 501(c)(3) intervention standard and the ¤ 527 definition, because those rules cover campaigns both in support of and in opposition to the service of a person in public office.

For what it's worth, that was the considered opinion of a number of tax lawyers who thought about it pretty carefully.  We shared the report with IRS officials and while some portions were discussed at great length, I do not believe we ever heard anything back about this point.  Whether that signals agreement with the conclusion is another question. 

Beth
Elizabeth Kingsley
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M St., NW
Suite 600
Washington, DC 20036
202-328-3500

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of Donald
Tobin
Sent: Thursday, March 23, 2006 2:45 PM
To: election-law
Subject: Question re: political intervention by (c)(3)s



I just receied a call from a reporter with regard to an interesting
question that I thought some of you may have considered.

An Ohio judge sentenced a sex offender to a year of home
detention and
probation.  Bill O'Reily went nuts about the sentence and the Ohio
legislature indicated that it was going to try to impeach the
judge.  For
lots of reasons, they decided not to.  Groups are now moving
to have the
judge recalled.  One of the major groups behind the recall is a
(c)(3).  501(c)(3)s are prohibited from intervening in a
political campaign
on behalf of (or in opposition to) a candidate for public office.  A
technical reading might be that the judge is not now a
candidate (though we
elect judges in Ohio) and that he is not running for public
office (he is
not up for re-election for 5 years).  On the other hand, this
seems to be
the type of activity that should be prohibited.

Is anyone aware of this issue comming up in the past?

Donald Tobin
Moritz College of Law
The Ohio State University