Friday, March 21, 2014
When the Center for Responsibility and Ethics filed a petition seeking mandamus earlier this year, John Columbo predicted that the case would be dismissed for lack of standing. And in fact, late last month the U.S. District Court for the District of Columbia dismissed CREW v. Treasury for lack of standing. What CREW was seeking as a substantive matter wasn't so unreasonable though. It wanted the Treasury to enforce the provision in 501(c)(4) so that groups claiming exemption under that statute adhere to the requirement that they engage "exclusively" in activities that promote social welfare. The same could be asserted with regard to 501(c)(3)'s requirement that groups claiming exemption under that statute engage "exclusively" in charitable activities. In both instances, the Treasury and courts have stated that Congress did not really mean "only" or "solely" but "mostly" or "firstly." And we all know what mischief those concessions have wrought. It seemed reasonable long ago when we first learned that "exclusively" did not actually exclude every other thing. But we might have avoided a whole lot of mischief and consternation if we had just said "this, and only this." Everything from "UBIT" with regard to 501(c)(3) to "candidate-related political activity" with regard to (c)(4) might have been avoided. Having decided that "exclusively" does not mean "only," Treasury now has to determine how much of something else is too much and has asked for comment on that. To be precise -- and why would we not want to be precise -- defining "exclusively" as anything other than 100% is both incorrect and, regardless of how much of something else is allowed, entirely arbitrary. Once we decide that "exclusively" can mean anything less than 100%, we can logically make it mean anything. So Treasury's request for comments regarding the meaning of "exclusively" becomes just a popular vote. Why do we even want to indulge the legal fiction that exclusively does not mean "omitting everything else" or "allowing for nothing else"? In hindsight, it would probably be better to adhere to the dictionary meaning of "exclusively."