A Statutory Definition of “Campaign Intervention”
It probably stands less than a snowball’s chance in hell, but a Bill re-introduced this week seeks to limit 501(c)(4) status to organizations that spend no more than 10% of their total expenditures on campaign intervention. And to organizations that disclose their donors’ identities. Good luck with that. But the interesting part is that the bill proposes an over-arching definition of “campaign intervention.” The short title is the “Crack Down on Dark Money Act.” Rep. Jared F. Golden, D-Maine re-introduced it this week. The bill is probably DOA but the definition of campaign intervention is worth kicking around.
Whoever actually wrote the bill has done the homework. It’s more than just a prohibition against greater than 10% political expenditures, it makes proposals about a whole lot of different nagging issues pertaining to campaign intervention. It proposes a whole new code section to address those issues. I hadn’t noticed that before. There are things to criticize about the definition but it is a provocative one. I would really like to know which professorial egghead actually wrote or proposed the Bill. Who is Spartacus, I wonder? Anyway, bravo for the effort.
The code and regulations already contain a lot of verbiage about lobbying – what it is, what it’s not, and a whole host of exceptions. There is plenty of law on the topic. But there is nothing comparable to that regarding the prohibition against campaign intervention, substantial or otherwise. More than 10% would be substantial under the Bill. But the Bill would add a new Section 4956 providing a very detailed statutory definition of “political intervention.” The Bill includes all the obvious activities comprising campaign intervention. “Don’t vote for Bill Clinton if you want to stay out of hell,” that sort of thing. It also contains some worrisome definitions including communications encouraging voters to “select candidates for support or opposition based on one or more criteria that clearly distinguish certain candidates from other candidates” and “[any] communications to the electorate that refer to and reflect views on a political candidate.” Any view? Like “DeSantis wears elevator cowboy boots to compensate for his small hands and feet, and might even start WWIII out of misguided insecurity?” I suppose both definitions are useful guides but I am just not sure about carving them in statutory stone.
And then there is a gaping exception that excludes any communication that is not part of a “paid mass media advertising” campaign. Seems to me that would just about open the door to unlimited (c)(4) campaign intervention. We already have that. As regards voter education, the bill would allow organizations to distribute materials comparing two or more candidates if it gives equal time to all “viable” candidates. Just like a bar association ranking, one that got gigged years ago. Viability is to be determined by an unspecified “objective threshold.”
The bill will allow remarks at (c)(4) sponsored events in support of or in opposition to a candidate, by anybody other than the candidate, as long as the speaker says “this is just my opinion.” So at a sponsored event, the Board Chair could say “[Biden/Trump] is a bum, don’t vote for him, but that’s just me talking.” And though the provision is intended to limit campaign intervention by (c)(4)s, it would only be logical to use the definition to determine whether a (c)(3) engaged in campaign intervention too.
So this dog just ain’t gonna hunt, unfortunately. Regardless of whether it articulates good policy or outcomes, the Bill is way too much a direct confrontation of a nagging problem. Politicians never like that. And the part about donor disclosure won’t get any love. But let’s not drag this puppy to the wood pile and shoot it just yet. The Bill makes for a good project or discussion item in a seminar on nonprofit and tax-exempt campaign intervention.
darryll k. jones