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Advocacy Blog
Tuesday, January 08, 2008
Article urges bright-line rule on partisan intervention in elections by 501(c)(3)s
In an article in the current edition of the University of North Carolina School of Law's First Amendment Law Review , OMB Watch's Nonprofit Advocacy Director Kay Guinane argues that IRS rules regulating political activities of 501(c)(3) organizations should be changed to ensure the First Amendment protections of charities. Guinane's piece was published as part of the First Amendment Law Review's 2007 Symposium: No Strings Attached? — The First Amendment and Tax-Exempt Organizations.
Charities, educational institutions and religious organizations, including churches, are among tax-exempt organizations described in section 501(c)(3) of the Internal Revenue Code. They are prohibited from participating or intervening in any political campaign on behalf of, or in opposition to, any candidate for public office.
In "Wanted: A Bright-Line Test Defining Prohibited Intervention in Elections by 501(c)(3) Organizations" — Guinane asserts,
"There are no IRS regulations that clearly define political intervention and there is very little case law in this area. The combination of vague standards and a new enforcement process that gives 501(c)(3) organizations limited ability to challenge IRS action raises serious constitutional concerns. In short, the current IRS enforcement regime poses serious First Amendment problems for 501(c)(3) organizations."
In her article, Guinane first evaluates the current regulations on political intervention by charities. Second, she argues that change is needed now in light of two recent developments: the passage and implementation of the Help America Vote Act (HAVA) and new IRS enforcement procedures, which began in 2004. Third, Guinane makes a case for why a bright line rule would help the IRS, the charitable community, and our democracy. Fourth, she reviews arguments against such a bright line rule. Finally, Guinane examines the U.S. Supreme Court's rationale in its recent decision in Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL) and what impact that decision could have on IRS rules on political intervention.
Guinane concludes the article, saying
"As America's only nonpartisan sector, the charities, educational institutions, and religious organizations that make up the 501(c)(3) universe provide a vital service to the public through their voter education and mobilization efforts, as well as advocacy on important public policy issues. The current IRS enforcement regime discourages this activity because of its vague standards, lack of transparency, broad discretion, and procedures in the PACI program. Development of bright-line rules that clearly define permissible activity, along with changes in the PACI process, would lift the chilling effect that results from the current situation."
For more information on the ban, visit OMB Watch's Resource Center on IRS Rules on Election Activities of Charities & Churches
Posted by Katie Clabby
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