On Aug. 3, OMB Watch sponsored a panel discussion to address the pros and cons of creating a bright line rule defining what is and is not prohibited partisan intervention in elections by charities and religious organizations. The panelists addressed problems created by the current "facts and circumstances" test, which allows the Internal Revenue Service (IRS) to apply its interpretation of the standard on a case by case basis. They also discussed action the nonprofit sector can take to propose and promote a bright line test. All four panelists were legal experts on nonprofit tax and election law. Each felt the ambiguities in the IRS rules regarding nonpartisan voter engagement activities create a chilling impact on charitable activity. One of the panelists, Beth Kingsley of Harmon Curran Spielberg & Eisenberg, noted that she cannot give clients a definitive statement about whether particular activities are permitted under IRS rules. She added that the IRS is woefully behind the times when it comes to addressing use of the Internet. Marcus Owens, a lawyer with Caplin & Drysdale who previously ran the exempt organizations division within the IRS, provided a brief history of IRS regulations. He noted that the regulations regarding voter engagement activities were developed in a very different manner than regulations regarding lobbying activities. He felt the IRS should find ways of refining the regulations given today's policy conditions. Owens was referring to points raised by Karl Sandstrom, a lawyer with Perkins Coie and former Commissioner on the Federal Election Commission. Sandstrom highlighted the recent U.S. Supreme Court decision in the Federal Election Commission v. Wisconsin Right to Life (WRTL) case, which emphasized that for an ad to be considered electioneering, it must explicitly assert support or opposition of a federal candidate. Sandstrom emphasized that this standard runs counter to the IRS culture, which he likened to a "disease" orientation — that the IRS looks at voter engagement as a disease rather than as a sign of a healthy democracy. Owens and Greg Colvin, a lawyer from San Francisco-based Silk Adler & Colvin, concurred that the Supreme Court's WRTL decision creates a new environment in which the IRS needs to respond. Colvin described a seven-point proposal he put forward in February 2006 for safe harbors; if embraced by the IRS, nonprofits could count on these activities as not constituting participation in political campaigns. But some of the safe harbors are controversial, such as a ban on communications pertaining to a candidate within 60 days of an election. This would eliminate all charitable issue advocacy, including lobbying, 60 days before an election, even if Congress is still in session. Notwithstanding the controversy about specific safe harbors, all the panelists agreed that the current ambiguity in the IRS "facts and circumstances" test is a serious problem. While Sandstrom argued the merits of litigation, the other panelists were more supportive of mobilizing a campaign to get the IRS to write bright line rules. And all panelists agreed that IRS already has the authority to make regulatory changes.