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.

Inviting Politicians to Campus: More

From Daniel Suhr, a response to our post detailing how Marquette has a rather illogical and ill-thought out policy on bring politicians (including those who may be running for reelection) to campus.

Not only is your post about campaign finance right on point, let me add an additional consideration: the university bureaucrats seem to underappreciate the fact that these are incumbents still in legislative session. Sen. Sullivan just voted earlier this week on an important campaign finance law regarding disclosure of independent expenditure donors. As Mr. Heck points out, both hold leadership positions on committees of jurisdiction in their respective houses.

From the context, it is clear that these two invitations were issued to current state legislators with particular knowledge of the issues that the panel will tackle, not to two “candidates for public office.”

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.

Thanks.

Doug

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.

Will Marquette Allow a Free Debate on Campaign Finance?

Coming up Monday night, a debate on campaign finance reform.

We will be on the program, along with one Republican, a couple of liberal Democrats, and former D.A. E. Michael McCann, who probably also counts as a liberal.

But here is the rub: as of this writing, the Office of the General Counsel of Marquette University is worried that Marquette will jeopardize its tax exempt status by hosting the debate because two of the politicians on the program (State Representative Jeff Stone, R-Greendale and State Senator Jim Sullivan, D-Wauwatosa) will be running for reelection in the fall, presumably with an opponent.

We have been unable to reach Doug Smith in the Office of the General Counsel, the university lawyer who handles cases like this.

Steve Schultz, Marquette’s Manager of Government and Community Affairs, raised the issue with Prof. Barry McCormick (who will moderate the panel) last night. Reached earlier today for comment, Schultz made reference to a document from the General Counsel titled “Political Activities on Campus Involving Candidates for Public Office.” It reads:

Subject to specific limitations, the University may sponsor speeches, forums, question-and-answer sessions, debates, and other similar activities in an academic setting on campus at which candidates for public office may offer their insights on issues of public importance and controversies that affect the electorate and society as a whole. The purpose of such activities must be to advance the educational mission of the University. When a candidate for public office or a surrogate is provided the opportunity to speak at University-sponsored speeches, forums, debates, and other similar activities on campus, the University is obligated under these circumstances to offer comparable opportunities on campus to opposing candidates to express their views.

Apparently, this issue arose when one of the student organizations cosponsoring the event asked Student Development whether they needed to register it, and an e-mail about the event went to the Office of General Counsel and the staff of the Alumni Memorial Union.

What Are They Thinking?

This, of course, falls into the “what are they thinking?” category.

For the moment, nobody has said that the debate can’t happen, but there is talk of extending an invitation to the electoral opponents of Stone and Sullivan. This would be a rather meaningless pro forma invitation, extended in the hope it will be declined.

A tax-exempt organization like Marquette is not supposed to engage in “electioneering.” That is, more or less, fair enough. And the rules the Office of General Counsel has posted say that Marquette (as opposed to student organizations) my not sponsor “campaign events.” These are defined as “any event at which individuals are solicited to support a candidate for public office, with financial contributions, endorsements, volunteer activities, or votes.” Fair enough. But the event Monday in no way resembles a “campaign event.”

But the “equal time” rule is bizarre, and out of left field. We know of no IRS requirement that educational institutions have to offer “equal time” to different candidates. It would be fair to do so, if the candidates were giving a campaign speech. But these two candidates will not be giving campaign speeches.

Of course, one way to stifle free speech, as liberals who want to reinstate the Fairness Doctrine know, is to impose excessive burdens on it. Requiring Marquette (or a part of Marquette, like the Political Science Department which is sponsoring this debate) to rigorously include every opponent of any candidate who appears on campus would make organizing any sort of event prohibitively unwieldy.

And in a typical case, if a particular candidate is well-qualified to talk about (say) health care, there is no reason to believe that the candidate’s opponent will necessarily have anything much to say about the issue. Indeed, in some cases the opponent may be a hack with no chance of winning and nothing to say worth listening to on any issue.

The net effect would be to ban anybody running for political office from campus — at least from any event sponsored by Marquette.

Jay Heck, Executive Director of Common Cause Wisconsin who arranged the debate, noted that “we’ve been doing these forums for three years, and we’ve always had legislators and of course they’re up for election, they always are. . . . ” Heck explained that he picked Stone because he is the ranking Republican on the Campaign Finance and Elections Committee in the Assembly, and he picked Sullivan because he’s the Vice-Chair of the Campaign Finance Committee in the Senate. “They were chosen for their expertise and their activism on the issue. . . ,” said Heck.

This appears to be an example of extreme bureaucratic risk-aversion on the part of the Office of General Counsel. Given the choice of defending academic freedom or protecting against a very far-fetched hypothetical legal problem — and indeed any such “legal problem” could almost certainly be successfully fought in court — they have come down against speech.

That’s not the orientation lawyers working for a university should have.