Public Policy Advocacy Highlights for March 2022 (Ides of March Edition)

Public Policy Advocacy Highlights for March 2022 (Ides of March Edition)

(Note: The recent flood of public policy advocacy highlights continued apace in early March. Because the lengthy last few Highlights reports overloaded our mailing list server, PPLI is serving up fresh news early this month. As always, characterizations, editorial comments, abbreviations and shorthand references are solely PPA Highlights author Barnaby Zall’s, and do not represent the views or positions of the Public Policy Legal Institute or the First Tuesday Lunch Group or their members and participants. This list will be updated later in March. Suggestions and corrections welcome.)


Glitch in DC Corporate Filings and a Workaround: Beth Kingsley reports DCRA wouldn’t issue a certificate of good standing to a corporation, even though they are in good standing, because the corporation had not yet filed its Biennial Report (which was not yet due, but which the system expected to receive). “It turns out there is a glitch in the system (which they acknowledge) and because the database is ready to accept 2022 Biennial Reports it won’t recognize that an entity is in good standing, even though the filing deadline is not yet here. … If your clients experience issues with this you can probably resolve it by filing this year’s report and then requesting the certificate from the online system.”


Malone: Don’t Call Us, Don’t Mail Us About Delays: Recent First Tuesday Lunch Group meetings have discussed problems and delays in IRS’s Tax-Exempt Organizations and Government Entities Division. Ernst & Young reports from a TEGE Council meeting: “At a virtual TEGE Exempt Organizations Council meeting attended by EY on March 3, 2022, IRS Tax-Exempt and Government Entities division (TE/GE) director Robert Malone suggested that tax-exempt organizations (1) contact the IRS to request corrections to the Exempt Organizations Business Master File Extract (EO BMF), and (2) utilize IRS-website resources to check the status of applications for IRS recognition of tax-exempt status.” In other words, call IRS about their mistakes, not their delays. Of course, as often mentioned in FTLG meetings, if you qualify (in good faith) for expedited processing, a call is appropriate.

IRS TE/GE Issues New Technical Guidance: The Service’s Tax-Exempt Organizations and Government Entities office has published three new comprehensive, issue-specific Technical Guides:

TG 3-8, Termination of Private Foundation Status, was renumbered TG 3-22 without substantive change.

Confused About the New 1099-MISC and NEC Forms? The Service offers a new video about the new non-employee compensation reporting forms.

More on Remedying IRS Customer Service “Dumpster Fire:” The Hill reports that “The Internal Revenue Service (IRS) plans to add 10,000 new employees to its payroll, hiring 5,000 in the next few months and an additional 5,000 by the end of next year [emphasis added], to tackle the backlog of tax returns and unanswered phone calls caused by the pandemic. The aim is to shrink the agency’s to-do list from more than 23 million unprocessed forms and requests down to the accustomed level of about 1 million by the end of 2022.” In addition, some 700 existing Service employees will be re-tasked to process returns, another 6,000 will be eligible for overtime pay, and the Service will hire more independent contractors and utilize more computerized assistance functions. Total cost $225 million, or about 1.7% of the IRS budget. But, they’re not going to be done reducing the backlog until after “the end of next year”?!! That dumpster’s still pretty warm.


More On Recent FARA DoJ Opinions on Nonprofit Organizations: Venable has a new update piece explaining more about the recent academic institution-oriented DoJ opinions handed down on the Foreign Agent Registration Act. “Both opinions highlight the limits of the academic exemption and the importance of considering FARA with regard not only to an organization’s formal contracts and agreements, but also to the organization’s public statements about its work, including press releases, reports, and social media posts, as each of these can be used by DOJ in evaluating the application of FARA. What is interesting about the regulation limiting the scope of the academic exemption to nonpolitical activities is that that limit is not actually found in the statute.”


Statute of Limitations Blocks FEC Action on 501(c)(4)’s Alleged Campaign Expenditures: In MUR 7465 (Freedom Vote), the Federal Election Commission voted 4-2 to dismiss and close a complaint that Freedom Vote, a 501(c)(4) Ohio corporation, failed to register and report as a political committee. Commissioners Dickerson, Cooksey and Trainor said “By the time this Matter was presented to the Commission for a probable-cause determination, however, the five-year statute of limitations had expired on the bulk of Freedom Vote’s alleged FECA violations. In an exercise of our prosecutorial discretion, we declined to pursue the alleged violations that were not time-barred. …  the Respondent is a defunct, bankrupt entity accused of prior reporting violations, and there is no basis to believe that the allegedly impermissible conduct will recur.” Freedom Vote apparently settled an IRS audit controversy before going bankrupt.

FEC Issues New Form 1 for IE-only (“SuperPACs”) and Hybrid Committees Using Separate Bank Accounts: On March 3, 2022, the Federal Election Commission proposed for Congressional review revised forms to allow independent expenditure-only and hybrid committees to register without filing separate statements (discussed at an earlier First Tuesday Lunch meeting). “The revised form introduces voluntary provisions for registering independent expenditure-only political committees (commonly known as “Super PACs”) and hybrid PACs, which intend to establish separate bank accounts to make contributions and to raise unlimited amounts to make independent expenditures.” The proposed form revisions will go into effect unless Congress intervenes.

Does the FEC Inappropriately Conflate Individuals and Corporations? Federal Election Commission Chair Allen Dickerson pens a separate Statement of Reasons in MUR 7707 (Friends of Bill Posey) explaining his repeated “concern that the Commission is insufficiently attentive to the law governing corporations.”


Government Agencies, Including the IRS, Must Also “Turn Square Corners”; IRS Can’t Legislate Major Financial Penalties and Reporting Requirements Without Complying With Basic APA Rules: Not so long ago, before the 2013 Lois Lerner targeting scandal, there was significant communication and cooperation between the Service and practitioners that helped both the regulators and regulated organizations understand, enforce and comply with the rules; no longer, and now the Service is suffering from both congressional and judicial challenges. For example, Chief Judge Jeff Sutton of the U.S. Court of Appeals for the Sixth Circuit is on a roll recently, writing several influential opinions in important cases. On March 3, in Mann Construction v. U.S., he took on the age-old tradition of deferring to IRS informal guidance (we used to call that deference “we have 200 million taxpayers and we don’t have time to do things the hard way other agencies use”), and rejected the Service’s claims that it could establish a new “listed transaction” reporting rule without following the “baseline” rules of the Administrative Procedures Act. Instead of the traditional deference, Sutton applied the Supreme Court newly-invigorated “square corners” doctrine: “The taxpayers claim that the IRS failed to meet a reporting requirement of its own by skipping the notice-and-comment process before promulgating this legislative rule. If individuals ‘must turn square corners when they deal with the government,’ the taxpayers insist, ‘it cannot be too much to expect the government to turn square corners when it deals with them.’ Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021). … The question is whether Congress amended the APA’s prerequisites, not whether the IRS did. … But the U.S. Supreme Court has already rejected the idea that tax law deserves special treatment under the APA. In its words, ‘we are not inclined to carve out an approach to administrative review good for tax law only.’ Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 55 (2011).” Slip op., 1, 10, 11.

Jury Rejects Prosecutors’ Claim That $1 Million Pro-Clinton Committees’ Donation Was Illegal Foreign Contribution: Politico reports that a DC federal jury “acquitted one man of a conspiracy to use straw donors and pass-throughs to donate millions of dollars to political funds backing Hillary Clinton in the 2016 presidential race, but jurors may be deadlocked on the fate of another man on trial in the case. … outside the presence of the jury, prosecutors said they believed that the original source of the money was actually the government of the United Arab Emirates.” Meanwhile, Reuters reports that a Ukrainian businessman was sentenced to a year in prison for helping a Russian oligarch funnel money to U.S. candidates who could help his cannabis company he was building with Lev Parnas, a former associate of Rudy Giuliani.

NY AG Loses Bid to Close Down NRA: On March 2, the Supreme Court of New York, Commercial Division (which is a New York intermediate appellate court), denied the NY Attorney General’s attempt to close down the National Rifle Association as a remedy for alleged financial mismanagement and insider reports of exploitation of exempt assets. “Her allegations concern primarily private harm to the NRA and its members and donors, which if proven can be addressed by the targeted, less intrusive relief she seeks through other claims in her Complaint. The Complaint does not allege that any financial misconduct benefited the NRA, or that the NRA exists primarily to carry out such activity, or that the NRA is incapable of continuing its legitimate activities on behalf of its millions of members. In short, the Complaint does not allege the type of public harm that is the legal linchpin for imposing the ‘corporate death penalty.’ Moreover, dissolving the NRA could impinge, at least indirectly, on the free speech and assembly rights of its millions of members.” Slip op., 2. Only the claims that would have dissolved the NRA were dismissed; other claims remain viable. Id.

Pro-Tip – What Are Appropriate Qualifications and Actions for an Exempt Org’s General Counsel: Of note in the New York v. NRA decision is the court’s discussion of the qualifications and actions of John Frazer, the NRA’s General Counsel since 2015. Slip op. 8, 28-29. “Whether Frazer in fact was qualified to hold these positions is a concern raised in the Complaint. At the time of his appointment, Frazer had been licensed as an attorney for seven years, but spent most of that time working in a non-legal position at the NRA. Frazer had been in private practice, as a solo practitioner, for only 18 months when he became the NRA’s General Counsel.” Slip op., 8. No discussion of how hard it is to hire an experienced exempt org. GC in many cases. Perhaps that is moot, however, since the NY AG alleged that the NRA’s Executive Vice President “allegedly hired Frazer without seriously vetting his qualifications.” Id. And, would inadequate qualifications absolve an attorney or officer who allegedly certified filings without actually reviewing or confirming them (especially if he supposedly had knowledge of misconduct that would have precluded certification)? Slip op., 27-29, 35-37. Of course, at this motion to dismiss stage in the proceedings, these are just allegations and no wrongdoing has been proven.

Why WA AG Settled on $9 Million Fine After Winning $18 Million in Failure to Report Win: Washington State Attorney General Bob Ferguson announced on March 2 that he has settled a campaign finance reporting claim against the Consumer Brands Association (formerly the Grocery Manufacturers Association) for $9 million, less than a month after the Washington Supreme Court upheld a record $18 million fine against the group. Why? Ferguson told the Seattle Times that the SCoWA “ruling came on a divided, 5-4 vote, raising the prospect that the conservative majority on the U.S. Supreme Court might strike down the fine — and even put the state’s campaign-finance laws in jeopardy.” The Seattle Times article, following a common error in media coverage, referenced AFPF/TMLC v. Bonta, the U.S. Supreme Court’s July 2021 decision to strike down a California Attorney General’s rule that imposed a “dragnet” sweep of charitable donors, although the rules for charitable and political donor disclosures are different.

No Campaign Contributions Limits in Alaska: Following Thompson v. Hebdon, a July 2021 Ninth Circuit finding that Alaska’s campaign contributions were unconstitutionally low, the Alaska Public Offices Commission eliminated all limits on campaign contributions to most statewide and municipal elective offices. The APOC staff had recommended simply raising the limits to a level acceptable to the Ninth Circuit, but there were not enough affirmative votes on the Commission to adopt the staff’s proposal.


Congressional Letter Requests IRS Investigation of Hollywood Foreign Press Association: Following a 2021 Los Angeles Times investigation of the tax-exempt sponsor of the Golden Globes awards, Cong. Joyce Beatty and Brenda Lawrence asked the Service to look into “seemingly corrupt and unacceptable deal making patterns of HFPA.” Concerns included self-dealing and what might have been IRC § 4958 violations, and “failure to embrace robust diversity and inclusion practices that we are now seeing being implemented in Hollywood and across all business and government sectors.”


Covington Releases 400-Page Pay2Play State-by-State Survey: Where applicable, for all capital cities, all cities with a population of over 100,000 (200,000 for California and New Jersey) and many counties. For Purchase. Venable (via FTLG participant Ron Jacobs) highlights new Delaware County, Pennsylvania, P2P rules.


Libraries Walk A Fine Line On First Amendment “Audits:” According to the American Library Association’s Office for Intellectual Freedom, an increasing number of public library visitors are attempting to film “First Amendment audits” of the libraries’ book collections and public activities. “‘What are they looking for? Every single one of them is different. Some auditors are looking for fame and fortune on YouTube and other auditors are looking for confrontation,’ said Deborah Mikula, executive director of the Michigan Library Association (MLA). ‘They’re looking to be confronted, either by the staff or by police, and they’re creating those videos to claim a violation of their First Amendment rights.’”

Continuing Attacks on Legal Counsels: Part of a trend we’ve discussed before, Axios reports that the 65 Project, counseled by David Brock, of “oppo” organization American Bridge, but also conservative Republicans and others, is “targeting 111 attorneys in 26 states who were involved to some degree in efforts to challenge or reverse 2020 election results. They include lawyers at large national law firms with many partners and clients and lawyers at smaller, regional firms. … It plans to spend about $2.5 million in its first year and will operate through an existing nonprofit called Law Works. Brock told Axios in an interview that the idea is to ‘not only bring the grievances in the bar complaints, but shame them and make them toxic in their communities and in their firms.’”

Careful About Characterizing Support: Houston Chronicle (paywall) reports the Texas Election Commission levied a $30,000 fine on an unsuccessful City Council candidate whose campaign flyer suggested that Harris County Black Democratic News had endorsed him without disclosing that the source of the funds for the endorsement mailer was the candidate.

You Probably Won’t Be Using This New Tax Ruling: Business Insider reports that: “Ukrainian authorities have reassured citizens that they don’t need to declare captured Russian tanks or any equipment they pick up as personal income. ‘Have you captured a Russian tank or armored personnel carrier and are worried about how to declare it? Keep calm and continue to defend the Motherland!’ a statement from the Ukrainian National Agency on Corruption Prevention seen by Interfax-Ukraine said.” The announcement (available only in Ukrainian) noted that the value of a captured tank would likely be less than the Ukraine living wage.