The apparent admission of a top lawyer for the Obama campaign during a recent conference call that the campaign has "work[ed] with some" nonprofit organizations raises questions about the campaign’s coordination with liberal nonprofit groups and could put the nonprofit status of those groups at risk.
Courtney Wheeler, the Obama campaign’s national voter protection coordinator, fielded a question from an attorney on the Sept. 18 call about certain tax-exempt organizations—groups organized under section 501(c)(3) of the tax code—that may be violating the law by engaging in overtly political activity.
"Is there any attention paid to those organizations who have not subtly but overtly indicated they intend to ignore their 501(c)(3) limitations and campaign?" the caller asked, according to an audio recording of the conversation obtained by the Free Beacon.
"We do work with some of the (c)(3)s in terms of just, like, volunteers and things like that," Wheeler said in response. "But for the (c)(3)s that are not following their statuses, if you want to send us the information on this we can definitely follow up and make sure we’re, you know, any groups are obviously following the law."
The admission by a campaign lawyer that the campaign does "work with some of the (c)(3)s" could put the nonprofit status of those groups at risk—even if the coordination is limited to "just, like, volunteers and things like that."
The law is clear: 501(c)(3) groups are banned from doing any partisan "work" at all. "Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office," according to the IRS website.
Wheeler and the Obama campaign did not return requests for comment regarding the extent of the campaign’s "work" with (c)(3) organizations, such as the left-wing think tank Center for American Progress.
The comments raised questions about this potentially illegal coordination, experts said.
"The restrictions are not terribly complicated, and pretty strict," said Scott Coffina, a former White House associate counsel who handled political legal issues for the Bush administration. "If these groups are using volunteers to promote Obama in any way, that’s violating their neutrality principle."
Neutral activities such as voter registration, voter education, or issue advocacy are permitted so long as they do not endorse one candidate or party over another. But coordinating activities with a campaign is absolutely forbidden, and such violations could cause the implicated (c)(3) groups to lose their tax-exempt status.
Scott Walter, executive vice president of the Capital Research Center, an organization that tracks the political activity of nonprofit groups, said that while illegal activity likely occurs, (c)(3) groups have become adept at coordinating with explicitly partisan groups in ways that "go up against the very edge of the law" without breaking it.
"I don’t think the violations are the problem, it’s the law that probably should be changed," he told the Washington Free Beacon. "Not more regulation, but adjusting the outer limits of what (c)(3)s can do legally."
Walter said (c)(3) organizations use voter registration drives and other outreach efforts in ways that are technically legal, but should be considered political activity. Liberal groups register voters on college campuses, for example, or at other locations that are highly likely to have a lot of Democratic voters. Conservative groups, on the other hand, often target places, such as churches, likely to attract Republicans.
Liberal groups sharing lists of individuals who may have expressed concern about environmental issues, and are thus likely to support Democrats, would be another example of how these organizations push the boundaries of the law.
"There’s a lot of legal dirtiness," Walter said.
The Obama administration has long skirted such legal gray areas.
The Office of Special Counsel (OSC) ruled earlier this month that Health and Human Services secretary Kathleen Sebelius violated the Hatch Act, the federal law prohibiting federal employees from engaging in partisan activities.
Sebelius made explicitly partisan remarks at what was intended to be an official administration event, OCS found, though she is unlikely to face punishment, according to the White House.
Sebelius has since returned to the campaign trail.
The Free Beacon previously reported on potentially illegal coordination between a top Energy Department official and a senior fellow at the Center for American Progress, as well two Federal Aviation Administration employees accused of illegally campaigning for Obama.