Saturday, January 23, 2010

Monday Election Finance Forum: Marquette Counsel Responds

Marquette University Counsel Doug Smith has taken the lead role in dealing with issues involving Marquette’s tax-exempt status.

One controversial aspect of this has been resistance to a forum scheduled for Monday night which has two participants who are in the state legislature, and of course running for reelection in November.

We wrote Smith about this, and he kindly supplied the following response.
As you could tell from the “fact sheet,” which is not a formal University policy, it was created to provide guidance to student organizations that wish to participate in political activities on campus involving candidates for public office. It’s an important part of the educational process for students, especially as part of their own student organizations, to be able to do so. Nevertheless, because they often use University facilities and funds in their activities, it’s important that students have clear direction as to what is, and what is not, permitted. The fact sheet is intended to provide student organizations with the broadest possible latitude to undertake whatever political activities they wish, consistent with the applicable IRS rules and guidance.

The rules are stricter with respect to activities that are “sponsored” by the University itself, a tax-exempt entity that is prohibited from using its funds or other resources to support candidates for public office. I know from past experience that some tax-exempt entities prohibit visits by candidates for public office entirely, so that they do not have to deal with the issue at all. Others may not attempt to monitor or to impose any requirements on appearances by candidates for public office. For example, state-owned universities and for-profit universities are not subject to these IRS requirements. There are many reasonable ways in which a private tax-exempt educational institution may approach this issue. Marquette University has elected not to implement formal policies in this area but to provide written guidance for reference by those who are involved with activities on campus that include candidates for public office.

To answer your first question, I saw no description of Monday’s event that would lead me to believe that it is, in and of itself, either “electioneering” or a “campaign event” under IRS rules. To answer your second question, I don’t believe that there is an “equal time” rule described in the fact sheet. The principle described is that the University is not permitted to evade the intent and purpose of the IRS rules by permitting some candidates for public office to gain opportunities to speak to University faculty, administrators, and students, using University resources, while denying that opportunity to their opponents, irrespective of how the presentations may be characterized. The last thing that the Office of General Counsel would want to do is to try to determine whether or not a specific presentation was or was not an “endorsement” of a candidate for public office. Some would argue that allowing any appearance is an endorsement; others would contend that anything short of the President explicitly saying “Elect him!” or “Elect her!” would not constitute an endorsement. Drawing that line would be difficult.

I’m not at the office today and not in a position to check my reference materials, but it is my recollection that offering a comparable opportunity to oppose candidates to express their views is not a “black letter” rule. This approach does, however, eliminate any argument that the University is providing a prohibited endorsement by providing its facilities for a particular candidate for public office to express his or her views to prospective voters. If, for example, the University were to permit one candidate for Governor to appear at monthly forums on issues of public concern during the campaign season, while denying all other announced candidates for Governor comparable opportunities, the effect would widely be regarded as an implicit endorsement by the University, contrary to the intent and purpose of the IRS rules. “Comparable opportunities … to express their views” provides great flexibility to the University to offer opposing candidates an opportunity to address issues of public concern and to avoid any perception that the University is using its tax-exempt facilities to favor one candidate for public office over another, without limiting in any way the academy’s ability to fulfill the University’s educational mission in the manner it deems appropriate.

In many cases, opposing candidates express no interest in coming to campus. In others, student organizations have sponsored activities by opposing candidates on campus, eliminating any need for the University itself to offer comparable opportunities to opposing candidates (while providing the opposing candidates more flexibility in their presentation). “Comparable” does not mean at the same time, in the same location, or on the same topic. It means a chance to speak under circumstances that would allow the opposing candidate to reach roughly the same number of people on campus as the original candidate could have reached. The Office of General Counsel has never recommended, requested, or directed that additional persons be added to an academic forum or that any part of the academy be required to offer forums that it did not wish to undertake.

In the past, where the Law School has invited candidates for public office to participate in the “On the Issues,” it is my understanding that opposing candidates have been given the opportunity to participate in “On the Issues” as well, and many have (for example, both Judge Gableman and Justice Butler participated during the Wisconsin Supreme Court race). You might wish to check with Mike Gousha or Joe Kearney to confirm that. Of course, other presentations on issues of public concern that are not made by or on behalf of candidates for public office are not subject at all to this guidance.

So far as I am aware, the advice in the fact sheet has not in any way served to limit the debate that has been undertaken by faculty, students, or those invited to speak on campus, whether by student organizations, faculty, or administration. The Office of General Counsel offers its opinion based on IRS regulations and guidance derived from applicable cases and enforcement actions, as well as commentary from academic experts and practicing attorneys. The objective is to provide consistent, practical advice so as to assure compliance with IRS regulations, while permitting faculty, administration, and students the broadest possible latitude to undertake activities that fulfill the University’s educational mission. I believe that the advice in the fact sheet accomplishes that objective.

If you have any other specific questions, just let me know, and I will respond as soon as I can.


Bottom line: there will be no interference with the forum Monday.

Then the question becomes: why did Steve Schultz, Marquette’s Manager of Government and Community Affairs, have extensive conversations with Prof. Barry McCormick, who will moderate the panel? Those conversations were based on the premise that there was a problem.

And why does the University “fact sheet” seem to imply that there is an “equal time” rule that the University should comply with?

Has the Office of the General Counsel backed off its position? If so, let’s let this be a precedent. And let’s rewrite the “fact sheet” to make it clear that an academic unit at Marquette, clearly not trying to get anybody elected, can stage a discussion without worrying about University policies that have no basis in IRS rules.

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