Taxing Issues: Reexamining the Regulation of Issue Advocacy by Tax-Exempt Organizations Through the Internal Revenue Code
David S. Karp
Recent elections show that more than just good ideas are needed to win: Candidates also need money. More than thirty years ago, Congress sought to limit the amount of money that flowed in and out of federal campaigns through a comprehensive set of amendments to the Federal Election Campaign Act (FECA) of 1971. In Buckley v. Valeo, the U.S. Supreme Court held that only campaign legislation that regulated a vague category of activity called “express advocacy” would be tolerated under the First Amendment. Since that decision, candidates have sought to identify themselves with particular issues and, in particular, the tax-exempt groups who propagate those issues. Not only are these tax-exempt groups exempt from income ta, but they also have been used to avoid the restrictions of the FECA. The most recent incarnation of loophole generating tax-exempt organizations elected tax-exempt status under section 527 of the Internal Revenue Code (the Code). These so-called “stealth PACs” successfully avoided most federal regulation, including federal disclosure requirements under the FECA. That same year, Congress put an end to the practice by mandating that such groups disclose the sources of their funding. In this Note, David S. Karp addresses some of the problems raised by these disclosure amendments. Karp argues that the persistent use of the Code to remedy loopholes in the campaign-finance law is dangerous because it traps otherwise law-abiding tax-exempt organizations between two separate regimes, with different goals in mind, regulating the same subject matter. After canvassing the history of the involvement of tax-exempt organizations in politics since Buckley, Karp concludes by arguing that the problem of the “stealth PACs” could be solved by limiting section 527 status to organizations that engage in express advocacy.