Sunday, January 24, 2010

Marquette’s Lawyers: Not Understanding the Law on Politicians Brought to Campus to Speak

Political Science Department Chairman Barry McCormick has faced a bit of harassment from University officials, apparently originating in the Office of the General Counsel of Marquette University, due to the fact that two Wisconsin politicians are going to speak at a debate on campaign finance reform tomorrow night. McCormick will moderate the debate.

University officials have expressed the fear that Marquette will jeopardize its tax-exempt status by hosting politicians running for office.

The fellow in the Office of the General Counsel in charge of such issues is Doug Smith, and we yesterday published what we thought was a rather reasonable statement from him, the gist of which was that the forum will go on without harassment.

Taking It Back

Unfortunately, he sent us an additional e-mail last night, and that one seems far less reasonable. We will quote key passages.
I haven’t spoken with Steve [Schultz], so I don’t know what all of the conversations were about. I do know that the question arose as to whether State Senator Sullivan or State Representative Stone were “candidates for public office.” Since State Senator Sullivan, at least, is widely regarded as running for re-election, and he has a declared opponent, the conclusion was that he meets the IRS definition.

So, the Office of General Counsel advised that the disclaimer in the fact sheet be read at the presentation and that, at some point in the future, a comparable opportunity for the declared opponent to speak be extended. That way, everyone present would understand that no endorsement of either candidate is being made by the University and that fundraising at the event is prohibited. (While the event itself did not contemplate any fundraising, it’s important that those in the audience also understand that soliciting, or offering unsolicited, campaign contributions on University property is not permitted. It also helps to avoid putting University guests in a position of having to say no to unsolicited offers of campaign contributions.) [emphasis added]
Unfortunately, these demands fail to understand that the IRS distinguishes between politicians (including those running for reelction) brought to campus as candidates, and those brought for some entirely different reason.

In this case, the “entirely different reason” is the fact that the politicians in question are well-informed about, and have key decision-making roles in, the issue of campaign finance reform.

It’s not difficult to find the relevant IRS rules.

The rules start by stating:
Organizations that are exempt from income tax under section 501(a) of the Internal Revenue Code as organizations described insection 501(c)(3) may not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
This of course, begs the question of what “participating in” or “intervening in” a “political campaign” would be.

Happily, the IRS rules give some pretty concrete guidelines about what would not run afoul of regulations.
Candidate Appearances Where Speaking or Participating as a Non-Candidate

Candidates may also appear or speak at organization events in a non-candidate capacity. For instance, a political candidate may be a public figure who is invited to speak because he or she: (a) currently holds, or formerly held, public office; (b) is considered an expert in a non-political field; or (c) is a celebrity or has led a distinguished military, legal, or public service career. A candidate may choose to attend an event that is open to the public, such as a lecture, concert or worship service. The candidate’s presence at an organization-sponsored event does not, by itself, cause the organization to be engaged in political campaign intervention. However, if the candidate is publicly recognized by the organization, or if the candidate is invited to speak, factors in determining whether the candidate’s appearance results in political campaign intervention include the following:

• Whether the individual is chosen to speak solely for reasons other than candidacy for public office;

• Whether the individual speaks only in a non-candidate capacity;

• Whether either the individual or any representative of the organization makes any mention of his or her candidacy or the election;

• Whether any campaign activity occurs in connection with the candidate’s attendance;

• Whether the organization maintains a nonpartisan atmosphere on the premises or at the event where the candidate is present; and

• Whether the organization clearly indicates the capacity in which the candidate is appearing and does not mention the individual’s political candidacy or the upcoming election in the communications announcing the candidate’s attendance at the event.
These guidelines are from pp. 1422-1423 of the relevant IRS document.

So where did the “comparable opportunity” and “disclaimer” things come from? These would be relevant for politicians appearing as candidates, rather than as experts, or legislators or activists.

The “disclaimer” business seems bland enough, although it’s insulting to insist that the moderator of a forum read a statement that “the views expressed here today are those solely of the speaker and not of Marquette University.” That sounds foolish, since nobody in his or her right mind would think any different. Especially when radically different views are expressed.

But moderator Barry McCormick has agreed to read the disclaimer, saying “That isn’t too painful.” In other words, why fight over trivial issues? Fair enough.

The “comparable opportunity” business is far more mischievous. For example, who at Marquette University has to arrange a “comparable opportunity?” If Political Science sponsors a debate (as it sponsors this one) is Political Science responsible for seeking out and inviting to campus the opponent of every candidate brought to campus? As we have suggested, the opponent may be somebody whose expertise is not on issues of pressing interest to the campus community. And how could we ever guarantee an opponent an audience of comparable size?

No one in the Marquette administration should have ever raised any of these issues. Not only was the forum designed to produce a vigorous and fair discussion of an important public issue, nothing about what was planned runs afoul of any IRS rules. While there might be some extreme cases where a real problem exists — flat out endorsement of a particular candidate, for example — Marquette bureaucrats should be in the habit of standing back and letting free speech happen.

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