In the Catholic Answers complaint, challenging the IRS' prohibition on 501(c)(3) "political intervention", counsel Jim Bopp would like to graft the express advocacy standard onto IRS rules.  No express advocacy, then no political intervention; and he is particularly bent on doing away with the "I know it when I see it approach".  The case involved an email, posted to the Catholic Answers web site, which argued for the denial of communion to John Kerry as a penalty for his pro-choice position.  That there was a relationship of this comment to the Kerry candidacy is beyond cavil.  Absent, however, was the raw express advocacy that Bopp believes must be incorporated into IRS guidelines to keep them within constitutional limits

     Bopp draws on both IRS and FEC authority:  on both Big Mama Rag (631 F.2d 1030 (D.C. Cir. 1980)) and Wisconsin Right to Life (127 S.Ct. 2652 (2007)).  He is not suggesting that the Regan case (461 U.S. 540 (1983)) does not apply, such that organizations like Catholic Answers are not constrained by their acceptance of privileged tax status in the conduct of political activity.  His objection is the indeterminacy of the standard for determining what constitutes 'political intervention", and he draws that line because he believes that the Constitution draws it, at "express advocacy".

     This case is another skirmish in the widening struggle of nonprofit organizations, including some on both the "left" and on the "right", to loosen the legal restrictions on their public advocacy activities.  The IRS rules have taken up less of the very public debate, far less than the years of litigation over the reach of the campaign finance law prohibition on corporate spending.  Bopp has concluded that the time has come to turn to tax matters, with developments in campaign finance law that he can build on and a Supreme Court primed and ready to entertain more of these types of cases.  In his Complaint, Bopp notes that the Congressional Research Service, reviewing the law, concludes that it provides little guidance on which "facts and circumstances" give rise to prohibited intervention.  So, in a sense, he presents the government as commenting on its rules and concluding that they "do not offer much insight into what activities are prohibited". 

     There is a fair distance between this CRS conclusion—insufficient clarity—to the one Bopp favors, defining the line as one of "express advocacy".  One stubborn problem with these arguments is that, beyond express advocacy but just over the hill, is its "functional equivalent".  If the question is not settled by "magic words", like "elect" or "defeat"—if there is more analysis required of their "functional equivalent"—the fight starts all over again.

     One other recurring point of contention is whether those who say the line is not clearly drawn mean it.  Their critics insist that the line might be hard to describe but not difficult to see.  In the case of Catholic Answers, the text of the email is not especially ambiguous about what brought the author to the topic and what he hoped that his readers would take from it.  The issue for Bopp is not really whether this author, or any other, knew how far to go.  His real concern is to let the author go there, into electoral speech:  to give him an allowance for it, short of express advocacy.  In short, Bopp wishes to move the line which, for him to do it, would have to be somewhat visible.  He would like to free his clients to discuss elections and candidates, if more indirectly than indirectly, and he would have them convey their preferences, but without aid of express advocacy.

     Which is the very ground of the objection lodged against him by those on the other side of the issue.  So here we go again.

Bob Bauer