COMPLAINT FOR DECLARATORY INJUNCTIVE AND MANDAMUS RELIEF by Rep. Chris Van Hollen Lyrics
Introduction
1. Plaintiffs Chris Van Hollen, Democracy 21, Campaign Legal Center, and Public Citizen bring this action under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 703, 704, and 706(1) & (2)(A), to compel agency action unlawfully withheld and unreasonably delayed, and to set aside agency action that is contrary to law. Defendant Internal Revenue Service (IRS) has for many years violated the Internal Revenue Code (IRC) by allowing tax-exempt social welfare organizations to expend substantial sums on electoral activity. The IRC provides that tax-exempt social welfare organizations must be “exclusively” engaged in “promotion of social welfare.” IRC § 501(c)(4). The IRS’s implementing regulation recognizes that electoral activity does not fall within the scope of activity promoting social welfare. Treasury Regulation (TR) §
1.501(c)(4)-1(a)(2)(ii). But the IRS’s regulation also purports to provide that an organization operates “exclusively” to promote social welfare as long as it is operated “primarily” for social welfare purposes. Id. § 1.501(c)(4)-1(a)(2)(i). By redefining “exclusively” as “primarily” in violation of the clear terms of its governing statutes, the IRS permits tax-exempt social welfare organizations to engage in substantial electoral activities in contravention of the law and court decisions interpreting it.
2. The IRS has continued to adhere to this unlawful construction of the law in the face of a petition filed by plaintiffs Democracy 21 and Campaign Legal Center in July 2011 requesting that it revise its regulation to conform to the statute’s requirements. The IRS has not commenced any rulemaking or even provided a substantive response to the petition.
3. The IRS’s continued failure to amend its regulation to correspond with the clear and nondiscretionary requirements of the law harms the plaintiffs in this action in a number of ways. It denies them information about the funding of election expenditures by section 501(c)(4) groups, because it allows such groups to claim tax-exempt status while engaging in electoral campaign spending without disclosing the identities of their contributors—disclosures that political organizations that properly claim tax exemption under section 527 of the IRC are required to provide. IRC § 527(j)(3). The IRS’s inaction also means that candidates, such as plaintiff Van Hollen, and section 527 political organizations, such as the political committees operated by plaintiff Van Hollen, must compete on unequal terms with tax-exempt groups that are permitted to raise funds for electoral purposes without complying with the disclosure request that the Court declare unlawful the IRS’s inaction with respect to the petition that it amend its rules, and that the Court compel the IRS to commence proceedings to amend its rules to implement the statutory requirement that social welfare organizations operate exclusively for the advancement of social welfare.
4. Instead of amending its rules to conform to the requirements of IRC section 501(c)(4), the IRS has recently taken action with precisely the opposite effect: It has issued a directive providing a “safe harbor” for certain organizations seeking exemption under section 501(c)(4) if they spend no more than 40% of their time and expenditures on electoral campaign activities and stating that even organizations that expend more than this percentage on electoral campaign intervention may qualify for tax–exempt status under section 501(c)(4) because the IRS may consider them to be “primarily” engaged in social welfare activities. The IRS’s new directive confirms that the IRS interprets its regulation to allow substantial electoral campaign intervention by section 501(c)(4) organizations—intervention up to and in some circumstances exceeding 40% of their activity—despite the statutory requirement that they be exclusively engaged in social welfare activities. The IRS’s action thus makes the extent of the conflict between its regulation and the statute even more explicit and will injure the plaintiffs by fostering increased electoral campaign spending without donor disclosure by ostensible section 501(c)(4) organizations. The plaintiffs therefore request that the Court declare the IRS’s new “safe harbor” directive unlawful insofar as it permits section 501(c)(4) organizations to spend amounts up to and exceeding 40% of their time and money on electoral campaign intervention.
Jurisdiction and Venue
5. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 1340 and 1361.
Parties
7. Plaintiff Chris Van Hollen is a Member of the United States House of Representatives representing the 8th Congressional District of the State of Maryland. Representative Van Hollen was first elected to the House of Representatives in 2002 and has been reelected in each succeeding Congressional election. He intends to run for reelection in 2014. In addition to his own campaign committee, Representative Van Hollen has a leadership PAC, the Victory Now PAC, that, subject to the contribution limits and disclosure requirements imposed on federal political committees by the Federal Election Campaign Act (FECA), 2 U.S.C. §§ 431ff., raises and expends money to support other candidates running for federal office. Both Representative Van Hollen’s campaign committee and the Victory Now PAC are tax-exempt under IRC section 527 and must operate under its requirements.
8. Plaintiff Democracy 21 is a nonpartisan, nonprofit organization that works to strengthen our democracy, protect the integrity of our political system against corruption and provide for honest and accountable elected officeholders and public officials. The organization promotes campaign finance reform, lobbying and ethics reforms, transparency and other government integrity measures, conducts public education efforts to accomplish these goals, participates in litigation involving the constitutionality and interpretation of campaign finance laws and engages in efforts to help ensure that campaign finance laws are properly enforced and implemented.
9. Plaintiff Campaign Legal Center is a nonpartisan, nonprofit organization that works on issues involving campaign finance and electoral reform, political communication and government ethics. The Campaign Legal Center offers nonpartisan analyses of issues and represents the public interest in administrative, legislative and legal proceedings. The Campaign Legal Center also participates in generating and shaping our nation’s policy debate about money in politics, disclosure, political advertising, and enforcement issues before the Congress, the
Federal Communications Commission, Federal Election Commission (FEC) and the IRS.
10. Plaintiff Public Citizen, Inc., is a nonpartisan, nonprofit membership organization headquartered in Washington, DC. Public Citizen advocates the interests of consumers and members of the public before Congress, administrative agencies and the courts on a wide range of issues. Prominent among Public Citizen’s concerns has been combating the corruption of our political system, and as a result Public Citizen has long supported campaign finance legislation and advocated its enforcement. In connection with those activities, Public Citizen studies and reports on the role of money in elections and the influence of political spending on officeholders and the formation of public policy.
11. Defendant IRS, a bureau of defendant United States Department of the Treasury, is the federal agency charged with administration and enforcement of the tax laws of the United States. The IRS is responsible for enforcing the requirements imposed by the IRC on tax-exempt organizations and issues regulations implementing those requirements, including the regulation at issue in this case. The United States Department of the Treasury is ultimately responsible for the operation of the IRS and the issuance of regulations implementing the IRC.
Statutory Background
12. Section 501 of the IRC provides that organizations meeting specified criteria are exempt from federal income taxation. Section 501(c)(4) provides such tax exemption to “civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare ....” (Emphasis added.) Section 501(c)(4) organizations are often devoted to advocacy with respect to public policy issues, because they are not subject to the strict limitations on lobbying that are applicable to charitable organizations that claim tax exemption
under section 501(c)(3).
13. Organizations that qualify under section 501(c)(4) are exempt from income taxation, but contributions to them are not, for income-tax purposes, deductible from income for contributors, unlike contributions to section 501(c)(3) charitable organizations. However, while not allowing contributors to deduct contributions to 501(c)(4) organizations from income, the IRS does not currently attempt to collect gift tax from contributors on their contributions to section 501(c)(4) organizations.
14. Section 501(c)(4) organizations are not required by the IRC to disclose the identity of their contributors publicly, and they typically do not do so.
15. The social welfare activities to which the IRC requires section 501(c)(4) organizations to be “exclusively” devoted do not include intervention in election campaigns. IRS regulations provide that “[t]he promotion of social welfare does not include direct or indirect participation in political campaigns on behalf of or in opposition to an candidate for public office.” TR § 1.501(c)(4)-1(a)(2)(ii).
16. Another IRC provision, section 527, provides tax exemption for organizations that engage primarily in electoral activity. Section 527 organizations, which are operated primarily to influence or attempt to influence elections for public office, IRC § 527(e)(1), are generally exempt from federal income taxation. As in the case of section 501(c)(4) organizations, contributions to section 527 organizations are not tax-deductible for contributors, but such contributions are expressly exempted from gift taxation by IRC section 2501(a)(5).
17. Section 527 organizations, unlike section 501(c)(4) organizations, must publicly disclose, on a quarterly basis, the identity of all contributors that contribute $200 or more annually. IRC § 527(j)(3). Section 527 organizations such as Representative Van Hollen’s committees that are also “political committees” under FECA, 2 U.S.C. § 431(4), must report their contributions under the terms of FECA—requirements comparable to those of section 527—and need not make separate reports under section 527. Id. § 527(j)(5).
The IRS’s Failure to Enforce IRC Section 501(c)(4)’s Plain Language
18. The IRS has not enforced section 501(c)(4)’s requirement that a tax-exempt organization be operated “exclusively” to promote social welfare. Instead, contrary to the plain meaning of the statute, the IRS has permitted section 501(c)(4) organizations to engage in substantial activity that does not qualify as promotion of social welfare, including election campaign intervention. In 1959, the IRS promulgated TR § 1.501(c)(4)-1(a)(2)(i), which provides that “[a]n organization is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community” (emphasis added). As the IRS explained in an August 24, 2012, letter to U.S. Senator Carl Levin, the IRS has “interpreted ‘exclusively’ as used in section 501(c)(4) to mean primarily.”
19. The effect of the IRS’s regulatory redefinition of section 501(c)(4)’s exclusivity requirement is to allow section 501(c)(4) organizations to engage in substantial amounts of activity that does not promote social welfare as long as they are “primarily” engaged in social welfare activities. Thus, although by the IRS’s own definition social welfare activities do not include participation or intervention in election campaigns, the IRS takes the view that “an organization may carry on lawful political activities and remain exempt under section 501(c)(4) as long as it is primarily engaged in activities that promote social welfare.” Rev. Ruling 81-95, 1981-1 C.B. 332.
20. The IRS has not specifically defined “primarily,” but TR § 1.501(c)(4)-1(a)(2)(i) is generally understood to require that just over 50% of an organization’s activity must qualify as promotion of social welfare. Thus, the regulation is generally understood to mean that as much as 49% of a 501(c)(4) organization’s budget may be spent on election campaign intervention or other non-social-welfare activities. Although the IRS had not previously stated expressly what percentage of a section 501(c)(4) organization’s activities may be directed to electoral campaign
intervention, the IRS has now expressly stated, in a report dated June 24, 2013, that it regards it as consistent with the presumptive availability of section 501(c)(4) tax-exempt status for an organization to spend up to 40% of its time and money on election campaign intervention, and that an organization may be eligible for exemption under section 501(c)(4), depending on the “facts and circumstances” of its activities, even if it spends more than 40% of its budget on election campaign intervention. The IRS’s June 24, 2013 report, entitled *Charting a Path Forward at the IRS: Initial Assessment and Plan of Action (“Charting a Path”), is attached hereto as Exhibit A* and is discussed further below.
21. The substantial spending on election campaign intervention in which the IRS permits a section 501(c)(4) organization to engage is contrary both to the statutory requirement that section 501(c)(4) organizations must be operated “exclusively” to promote social welfare and to court decisions interpreting that statutory requirement to prohibit “substantial” non-social welfare activity. The Effects of the IRS’s Disregard of Section 501(c)(4)’s Plain Meaning
22. The IRS’s replacement of the statutory requirement that section 501(c)(4) organizations operate exclusively to promote social welfare with a regulatory standard that allows them to engage in substantial election campaign activity has resulted in a flood of electoral spending by ostensible section 501(c)(4) organizations. Because these organizations do not report the sources of their contributions, as is required of political committees and other section 527 organizations, election-related spending by section 501(c)(4) organizations deprives other participants in the political process, including voters, candidates, and political organizations, as well as persons and organizations who desire to study the sources of influence on the political process, of critical information about the financial interests served by electoral campaign spending.
23. Electoral campaign spending by section 501(c)(4) organizations soared after the U.S. Supreme Court’s decisions in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (WRTL), and *Citizens United v. Federal Election Commission*, 558 U.S. 310 (2010), which, respectively, narrowly construed and then invalidated federal laws prohibiting corporate electoral campaign expenditures. In the wake of those decisions, section 501(c)(4) organizations became the vehicles of choice for mobilizing anonymous contributions for political purposes.
24. In the 2008 presidential election cycle, following the decision in WRTL, section 501(c)(4) organizations reported to the FEC that they had engaged in election-related spending totaling over $82.7 million, after having reported only $7.6 million in the 2004 presidential election cycle, according to the Center for Responsive Politics. See http://www.opensecrets.org/outsidespending/nonprof_summ.php.
25. In the 2010 congressional elections, the first federal elections conducted after the Citizens United decision, section 501(c)(4) organizations reported more than $92 million in election-related spending to the FEC, according to the Center for Responsive Politics. Id. By contrast, in the 2006 congressional elections, section 501(c)(4) organizations had reported spending only $1.2 million. See id.
26. In the 2012 presidential election cycle, section 501(c)(4) organizations increased their reported election-related spending still further, to over $256 million, a threefold increase over the amount spent in the 2008 presidential elections. See id.
27. Individual section 501(c)(4) organizations spent very substantial amounts in these elections. In the 2008 election cycle, a dozen section 501(c)(4) groups reported election-related spending in excess of $1 million, with one group spending nearly $9 million. See http://www.opensecrets.org/outsidespending/summ.php?cycle=2008&chrt=V&disp=O&type=U. In the 2010 congressional elections, the number of 501(c)(4) organizations reporting election-related spending exceeding $1 million rose to 15. See http://www.opensecrets.org/outsidespending/summ.php?cycle=2010&chrt=V&disp=O&type=U. One of those groups reported spending $18.9 million, and another spent $16.7 million.
28. In the 2012 presidential elections, the number of section 501(c)(4) organizations with at least $1 million in election-related spending had risen to 25, with seven spending more than $10 million. See http://www.opensecrets.org/outsidespending/summ.phpcycle=2012&chrt=V&disp=O&type=U. One group alone spent over $71 million; another spent $36.4 million; and another spent $25.4 million. Id.
1. Plaintiffs Chris Van Hollen, Democracy 21, Campaign Legal Center, and Public Citizen bring this action under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 703, 704, and 706(1) & (2)(A), to compel agency action unlawfully withheld and unreasonably delayed, and to set aside agency action that is contrary to law. Defendant Internal Revenue Service (IRS) has for many years violated the Internal Revenue Code (IRC) by allowing tax-exempt social welfare organizations to expend substantial sums on electoral activity. The IRC provides that tax-exempt social welfare organizations must be “exclusively” engaged in “promotion of social welfare.” IRC § 501(c)(4). The IRS’s implementing regulation recognizes that electoral activity does not fall within the scope of activity promoting social welfare. Treasury Regulation (TR) §
1.501(c)(4)-1(a)(2)(ii). But the IRS’s regulation also purports to provide that an organization operates “exclusively” to promote social welfare as long as it is operated “primarily” for social welfare purposes. Id. § 1.501(c)(4)-1(a)(2)(i). By redefining “exclusively” as “primarily” in violation of the clear terms of its governing statutes, the IRS permits tax-exempt social welfare organizations to engage in substantial electoral activities in contravention of the law and court decisions interpreting it.
2. The IRS has continued to adhere to this unlawful construction of the law in the face of a petition filed by plaintiffs Democracy 21 and Campaign Legal Center in July 2011 requesting that it revise its regulation to conform to the statute’s requirements. The IRS has not commenced any rulemaking or even provided a substantive response to the petition.
3. The IRS’s continued failure to amend its regulation to correspond with the clear and nondiscretionary requirements of the law harms the plaintiffs in this action in a number of ways. It denies them information about the funding of election expenditures by section 501(c)(4) groups, because it allows such groups to claim tax-exempt status while engaging in electoral campaign spending without disclosing the identities of their contributors—disclosures that political organizations that properly claim tax exemption under section 527 of the IRC are required to provide. IRC § 527(j)(3). The IRS’s inaction also means that candidates, such as plaintiff Van Hollen, and section 527 political organizations, such as the political committees operated by plaintiff Van Hollen, must compete on unequal terms with tax-exempt groups that are permitted to raise funds for electoral purposes without complying with the disclosure request that the Court declare unlawful the IRS’s inaction with respect to the petition that it amend its rules, and that the Court compel the IRS to commence proceedings to amend its rules to implement the statutory requirement that social welfare organizations operate exclusively for the advancement of social welfare.
4. Instead of amending its rules to conform to the requirements of IRC section 501(c)(4), the IRS has recently taken action with precisely the opposite effect: It has issued a directive providing a “safe harbor” for certain organizations seeking exemption under section 501(c)(4) if they spend no more than 40% of their time and expenditures on electoral campaign activities and stating that even organizations that expend more than this percentage on electoral campaign intervention may qualify for tax–exempt status under section 501(c)(4) because the IRS may consider them to be “primarily” engaged in social welfare activities. The IRS’s new directive confirms that the IRS interprets its regulation to allow substantial electoral campaign intervention by section 501(c)(4) organizations—intervention up to and in some circumstances exceeding 40% of their activity—despite the statutory requirement that they be exclusively engaged in social welfare activities. The IRS’s action thus makes the extent of the conflict between its regulation and the statute even more explicit and will injure the plaintiffs by fostering increased electoral campaign spending without donor disclosure by ostensible section 501(c)(4) organizations. The plaintiffs therefore request that the Court declare the IRS’s new “safe harbor” directive unlawful insofar as it permits section 501(c)(4) organizations to spend amounts up to and exceeding 40% of their time and money on electoral campaign intervention.
Jurisdiction and Venue
5. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 1340 and 1361.
Parties
7. Plaintiff Chris Van Hollen is a Member of the United States House of Representatives representing the 8th Congressional District of the State of Maryland. Representative Van Hollen was first elected to the House of Representatives in 2002 and has been reelected in each succeeding Congressional election. He intends to run for reelection in 2014. In addition to his own campaign committee, Representative Van Hollen has a leadership PAC, the Victory Now PAC, that, subject to the contribution limits and disclosure requirements imposed on federal political committees by the Federal Election Campaign Act (FECA), 2 U.S.C. §§ 431ff., raises and expends money to support other candidates running for federal office. Both Representative Van Hollen’s campaign committee and the Victory Now PAC are tax-exempt under IRC section 527 and must operate under its requirements.
8. Plaintiff Democracy 21 is a nonpartisan, nonprofit organization that works to strengthen our democracy, protect the integrity of our political system against corruption and provide for honest and accountable elected officeholders and public officials. The organization promotes campaign finance reform, lobbying and ethics reforms, transparency and other government integrity measures, conducts public education efforts to accomplish these goals, participates in litigation involving the constitutionality and interpretation of campaign finance laws and engages in efforts to help ensure that campaign finance laws are properly enforced and implemented.
9. Plaintiff Campaign Legal Center is a nonpartisan, nonprofit organization that works on issues involving campaign finance and electoral reform, political communication and government ethics. The Campaign Legal Center offers nonpartisan analyses of issues and represents the public interest in administrative, legislative and legal proceedings. The Campaign Legal Center also participates in generating and shaping our nation’s policy debate about money in politics, disclosure, political advertising, and enforcement issues before the Congress, the
Federal Communications Commission, Federal Election Commission (FEC) and the IRS.
10. Plaintiff Public Citizen, Inc., is a nonpartisan, nonprofit membership organization headquartered in Washington, DC. Public Citizen advocates the interests of consumers and members of the public before Congress, administrative agencies and the courts on a wide range of issues. Prominent among Public Citizen’s concerns has been combating the corruption of our political system, and as a result Public Citizen has long supported campaign finance legislation and advocated its enforcement. In connection with those activities, Public Citizen studies and reports on the role of money in elections and the influence of political spending on officeholders and the formation of public policy.
11. Defendant IRS, a bureau of defendant United States Department of the Treasury, is the federal agency charged with administration and enforcement of the tax laws of the United States. The IRS is responsible for enforcing the requirements imposed by the IRC on tax-exempt organizations and issues regulations implementing those requirements, including the regulation at issue in this case. The United States Department of the Treasury is ultimately responsible for the operation of the IRS and the issuance of regulations implementing the IRC.
Statutory Background
12. Section 501 of the IRC provides that organizations meeting specified criteria are exempt from federal income taxation. Section 501(c)(4) provides such tax exemption to “civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare ....” (Emphasis added.) Section 501(c)(4) organizations are often devoted to advocacy with respect to public policy issues, because they are not subject to the strict limitations on lobbying that are applicable to charitable organizations that claim tax exemption
under section 501(c)(3).
13. Organizations that qualify under section 501(c)(4) are exempt from income taxation, but contributions to them are not, for income-tax purposes, deductible from income for contributors, unlike contributions to section 501(c)(3) charitable organizations. However, while not allowing contributors to deduct contributions to 501(c)(4) organizations from income, the IRS does not currently attempt to collect gift tax from contributors on their contributions to section 501(c)(4) organizations.
14. Section 501(c)(4) organizations are not required by the IRC to disclose the identity of their contributors publicly, and they typically do not do so.
15. The social welfare activities to which the IRC requires section 501(c)(4) organizations to be “exclusively” devoted do not include intervention in election campaigns. IRS regulations provide that “[t]he promotion of social welfare does not include direct or indirect participation in political campaigns on behalf of or in opposition to an candidate for public office.” TR § 1.501(c)(4)-1(a)(2)(ii).
16. Another IRC provision, section 527, provides tax exemption for organizations that engage primarily in electoral activity. Section 527 organizations, which are operated primarily to influence or attempt to influence elections for public office, IRC § 527(e)(1), are generally exempt from federal income taxation. As in the case of section 501(c)(4) organizations, contributions to section 527 organizations are not tax-deductible for contributors, but such contributions are expressly exempted from gift taxation by IRC section 2501(a)(5).
17. Section 527 organizations, unlike section 501(c)(4) organizations, must publicly disclose, on a quarterly basis, the identity of all contributors that contribute $200 or more annually. IRC § 527(j)(3). Section 527 organizations such as Representative Van Hollen’s committees that are also “political committees” under FECA, 2 U.S.C. § 431(4), must report their contributions under the terms of FECA—requirements comparable to those of section 527—and need not make separate reports under section 527. Id. § 527(j)(5).
The IRS’s Failure to Enforce IRC Section 501(c)(4)’s Plain Language
18. The IRS has not enforced section 501(c)(4)’s requirement that a tax-exempt organization be operated “exclusively” to promote social welfare. Instead, contrary to the plain meaning of the statute, the IRS has permitted section 501(c)(4) organizations to engage in substantial activity that does not qualify as promotion of social welfare, including election campaign intervention. In 1959, the IRS promulgated TR § 1.501(c)(4)-1(a)(2)(i), which provides that “[a]n organization is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community” (emphasis added). As the IRS explained in an August 24, 2012, letter to U.S. Senator Carl Levin, the IRS has “interpreted ‘exclusively’ as used in section 501(c)(4) to mean primarily.”
19. The effect of the IRS’s regulatory redefinition of section 501(c)(4)’s exclusivity requirement is to allow section 501(c)(4) organizations to engage in substantial amounts of activity that does not promote social welfare as long as they are “primarily” engaged in social welfare activities. Thus, although by the IRS’s own definition social welfare activities do not include participation or intervention in election campaigns, the IRS takes the view that “an organization may carry on lawful political activities and remain exempt under section 501(c)(4) as long as it is primarily engaged in activities that promote social welfare.” Rev. Ruling 81-95, 1981-1 C.B. 332.
20. The IRS has not specifically defined “primarily,” but TR § 1.501(c)(4)-1(a)(2)(i) is generally understood to require that just over 50% of an organization’s activity must qualify as promotion of social welfare. Thus, the regulation is generally understood to mean that as much as 49% of a 501(c)(4) organization’s budget may be spent on election campaign intervention or other non-social-welfare activities. Although the IRS had not previously stated expressly what percentage of a section 501(c)(4) organization’s activities may be directed to electoral campaign
intervention, the IRS has now expressly stated, in a report dated June 24, 2013, that it regards it as consistent with the presumptive availability of section 501(c)(4) tax-exempt status for an organization to spend up to 40% of its time and money on election campaign intervention, and that an organization may be eligible for exemption under section 501(c)(4), depending on the “facts and circumstances” of its activities, even if it spends more than 40% of its budget on election campaign intervention. The IRS’s June 24, 2013 report, entitled *Charting a Path Forward at the IRS: Initial Assessment and Plan of Action (“Charting a Path”), is attached hereto as Exhibit A* and is discussed further below.
21. The substantial spending on election campaign intervention in which the IRS permits a section 501(c)(4) organization to engage is contrary both to the statutory requirement that section 501(c)(4) organizations must be operated “exclusively” to promote social welfare and to court decisions interpreting that statutory requirement to prohibit “substantial” non-social welfare activity. The Effects of the IRS’s Disregard of Section 501(c)(4)’s Plain Meaning
22. The IRS’s replacement of the statutory requirement that section 501(c)(4) organizations operate exclusively to promote social welfare with a regulatory standard that allows them to engage in substantial election campaign activity has resulted in a flood of electoral spending by ostensible section 501(c)(4) organizations. Because these organizations do not report the sources of their contributions, as is required of political committees and other section 527 organizations, election-related spending by section 501(c)(4) organizations deprives other participants in the political process, including voters, candidates, and political organizations, as well as persons and organizations who desire to study the sources of influence on the political process, of critical information about the financial interests served by electoral campaign spending.
23. Electoral campaign spending by section 501(c)(4) organizations soared after the U.S. Supreme Court’s decisions in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (WRTL), and *Citizens United v. Federal Election Commission*, 558 U.S. 310 (2010), which, respectively, narrowly construed and then invalidated federal laws prohibiting corporate electoral campaign expenditures. In the wake of those decisions, section 501(c)(4) organizations became the vehicles of choice for mobilizing anonymous contributions for political purposes.
24. In the 2008 presidential election cycle, following the decision in WRTL, section 501(c)(4) organizations reported to the FEC that they had engaged in election-related spending totaling over $82.7 million, after having reported only $7.6 million in the 2004 presidential election cycle, according to the Center for Responsive Politics. See http://www.opensecrets.org/outsidespending/nonprof_summ.php.
25. In the 2010 congressional elections, the first federal elections conducted after the Citizens United decision, section 501(c)(4) organizations reported more than $92 million in election-related spending to the FEC, according to the Center for Responsive Politics. Id. By contrast, in the 2006 congressional elections, section 501(c)(4) organizations had reported spending only $1.2 million. See id.
26. In the 2012 presidential election cycle, section 501(c)(4) organizations increased their reported election-related spending still further, to over $256 million, a threefold increase over the amount spent in the 2008 presidential elections. See id.
27. Individual section 501(c)(4) organizations spent very substantial amounts in these elections. In the 2008 election cycle, a dozen section 501(c)(4) groups reported election-related spending in excess of $1 million, with one group spending nearly $9 million. See http://www.opensecrets.org/outsidespending/summ.php?cycle=2008&chrt=V&disp=O&type=U. In the 2010 congressional elections, the number of 501(c)(4) organizations reporting election-related spending exceeding $1 million rose to 15. See http://www.opensecrets.org/outsidespending/summ.php?cycle=2010&chrt=V&disp=O&type=U. One of those groups reported spending $18.9 million, and another spent $16.7 million.
28. In the 2012 presidential elections, the number of section 501(c)(4) organizations with at least $1 million in election-related spending had risen to 25, with seven spending more than $10 million. See http://www.opensecrets.org/outsidespending/summ.phpcycle=2012&chrt=V&disp=O&type=U. One group alone spent over $71 million; another spent $36.4 million; and another spent $25.4 million. Id.