The Chill Factor

The IRS is about to publish new guidelines for public policy advocacy organizations that want to retain their tax-exempt status even while exercising their First Amendment rights. They're still allowed to talk about public policy (their raison d'etre, after all), but they have to be very careful that they don't cross the line into speech that is "directly related to and support[s] the process of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to public office or office in a political organization."

According to the new rule, the criteria for identifying such forbidden speech "include, but are not limited to":

a) The communication identifies a candidate for public office;

b) The timing of the communication coincides with an electoral campaign;

c) The communication targets voters in a particular election;

d) The communication identifies that candidate's position on the public policy issue that is the subject of the communication;

e) The position of the candidate on the public policy issue has been raised as distinguishing the candidate from others in the campaign, either in the communication itself or in other public communications; and

f) The communication is not part of an ongoing series of substantially similar advocacy communications by the organization on the same issue.

The IRS offers six scenarios that are supposed to clarify how these criteria might be applied but actually illustrate how dangerous it will be for nonprofits to criticize, in any medium, the positions of public officials up for re-election. Gun Owners of America argues that the new rule will have a bigger chilling effect on political speech than the McCain-Feingold law.