An Update on Safe Space v. Commissioner

We previously blogged here and here on Students and Academics for Free Expression, Speech, and Political Action in Campus Education, Inc (SAFE SPACE) v. Commissioner. That is the potentially blockbuster case concerning the political speech restrictions in IRC 501(c)(3). The latest news is that SAFE SPACE and the Commissioner have filed a joint motion to dismiss in order that the parties can perfect the record.  According to the motion, the 1023 was incomplete when filed, a fact apparently not previously conveyed to SAFE SPACE.  The motion states that it would be in the best interest of all to go back and fix the administrative record and then allow SAFE SPACE to file its complaint anew.  This of course presumes that the Service will formally deny the application because SAFE SPACE candidly asserts that it plans to endorse candidates and lobby beyond just an insubstantial amount.  

But is the Service required to deny the application?  It seems the Service's hands are tied by the clear language of 501(c)(3).  What if Chief Counsel wrote a memorandum concluding that the political restrictions are unconstitutional? Relying on Citizens United, perhaps.  Could the Service then simply issue a determination letter recognizing SAFE SPACE as a 501(c)(3) organization?  It is not such a far fetched notion.  Especially if the presumptive Republican nominee was in office today.  After all, the Service and the entire Executive Branch are duty bound to comply with the constitution as best they understand it.  So if the Service reasoned that the political restrictions were unconstitutional it could simply refuse to enforce them.  Who would have standing to object?  

 

darryll k. jones