On April 5 Lt. Gov. Randy McNally’s “caption bill” which he is sponsoring, SB1005, was amended from a 2 page bill to a 15 page bill that now contains a direct attack on the 1st Amendment rights of Tennesseans who support issue advocacy groups such as the Tennessee Firearms Association which are established as IRS § 501(c)(4) organizations.
By John Harris / Tennessee Firearms Association
This dangerous legislation is specifically intended in Section 13 to force these nonprofit groups to register as “political action committees” which they are not and, under the 1st Amendment, should not be.
Generally, a political action committee is an entity which advocates specifically for or against a candidate. In contrast, IRS regulations provide that a § 501(c)(4) issue advocacy group can engage in conduct supporting and promoting an issue but generally it cannot directly endorse or oppose a candidate’s election efforts. What Lt. Gov. Randy McNally and Speaker Cameron Sexton, as well as their co-sponsors, seem to be doing is attacking the 1st Amendment rights of the members of these issue advocacy groups like Tennessee Firearms Association.
What’s the concern?
Simply put, it is a pattern of the Bill Lee administration and certain Republican legislators to disregard, oppose and oppress constitutionally protected rights and those individuals, entities and organizations which have as their mission the protection and advancement of constitutional principles – just as we saw this year when the Senate Judiciary killed the REAL constitutional carry legislation on April 6… but that is another story.
Let’s look more specifically at the nefarious provisions of Lt. Gov. Randy McNally’s SB1005, the amendment to it that was adopted unanimously on April 5, and Speaker Cameron Sexton’s HB1201 (which at this point has not been amended to match Lt. Gov. McNally’s assaultive amendment).
One of many problems with the amendment is contained in Section 13 which provides:
SECTION 13. Tennessee Code Annotated, Section 2-10.132, is amended by designating the existing language as subsection (a) and adding the following as a new subsection (b):
(b) Notwithstanding another law to the contrary , an organization that is tax exempt under United States Internal Revenue Service Code§ 501(c)(4) (26 U S C. § 501(c)(4)) is deemed to be a political campaign committee for purposes of reporting expenditures in accordance with § 2-10-105(c)(1) and (h) and for filing an appointment of treasurer form if:
(1) The organization expends an aggregate total of at least five thousand dollars ($5,000) in organizational funds, moneys, or credits for communications that expressly contain the name or visually depict the likeness of a state or local candidate in a primary or general election; and
(2) Such expenditures or communications occur within sixty (60) calendar days immediately preceding a primary or general election in which the named or visually depicted candidate appears on the ballot.
We have these questions and concerns:
1) Under (b)(1) does the phrase “aggregate total” expenditures include ongoing and recurring costs such as, but not limited to, website hosting, website consultants, website management companies, etc?
2) Under (b), there does not appear to be any condition as to whether the communication advocates for or against a candidate. So, for example, TFA and many other organizations have a history of doing a candidate survey where questions are sent to candidates and the results of those surveys are posted on websites or perhaps even mailed out to those on existing mailing lists or published in newsletters. If the organization reports on all candidates, or even all candidates in a particular race, by, for example, reporting the candidates’ actual or scored survey responses then it appears that this would trigger (b)(1) merely because all such candidates who were surveyed, or who responded, are named in the communication or their photographs may be included.
This dangerous legislation is intended to force nonprofit groups to register as “political action committees” which they are not and, under the 1st Amendment, should not be.
3) What about announcements, perhaps postcards, to announce a “candidate forum” where all candidates in a particular district or region are invited to some and participate but without an endorsement from or against any candidates at that forum by the host entity? Would merely listing the names of the invited candidates potentially require an entity to register as a political action committee?
4) Under (b)(1), if an organization distributed information within the 60 days window and included, for example, a photo or likeness of all the candidates in a particular race (e.g., the candidate forum announcement), would this be covered by (b)(1)?
5) Under (b)(1), if any organization distributed information outside the 60 day window (e.g., a downloadable survey response or an online video of a candidate forum) and such online information was active or accessible by the public during the referenced 60 days window, would that constitute an “occurrence” within the 60 days under (b)(1)?
6) If an organization published and distributed its information outside the 60 day window but did not receive or pay the invoice (printing, mailing, etc.) until within the 60 days window, would that be a triggering event under (b)?
7) Does (b) or any other provision of this bill relative to 501c4 entities require that the communication be one that advocates or or against a specific candidate?
Appalling, dangerous bill
At this late point in the legislative cycle TFA is appalled that the Lt. Governor and the Speaker would even be considering ramming through such a dangerous piece of legislation by totally rewriting an otherwise harmless caption bill.
It appears that the clear intent and purpose of this amendment is to force grassroots issue advocacy groups to register as a political action committees. Doing that has severe chilling effects on such groups because it could make the organization’s member lists, donor list, the addresses and employers of members and donors, the amount of donations, the amount of membership receipts, expenditures, loans, etc., all reported to the State of Tennessee on publicly viewable disclosures.
That is a clear violation of the First Amendment according to relevant U.S. Supreme Court analysis.
Tennessee Firearms Association strongly opposes this aggressive attack on issue advocacy groups that exist to protect the rights of Tennesseans and we see this legislation as an attempt by the Lee administration and some members of General Assembly to oppress and perhaps curtail the ability of Tennesseans to join together in grassroots movements. It is time that conservative or concerned Tennesseans be outraged as well and take action to stop this assault on their fundamental constitutionally protected rights.
Take action now
What can you do? 1) Call your House and Senate members. Ask them to DEFEAT this bill and its dangerous amendment. In addition, insist that they contact both the sponsors and the committee members to demand that the bill be stopped. If you don’t know who your legislators are, you can look it up on the state website.
2) Contact by phone and email the members of the committee which are to hear these bills. You don’t have to leave a long message or debate with them. Simply state that you are a concerned Tennessee citizen and TFA member. Tell them you OPPOSE SB1005 and HB1201. Keep track of who you talk to and what their responses were.
3) Go to the TFA Facebook page and share not only your efforts but also the responses you received. Let’s support those legislators who do the right things and lets REPLACE and EXPOSE the ones who do not.
The contact numbers of the legislators who should be contacted include:
Lt. Gov. Randy McNally (615) 741-6806
Speaker Cameron Sexton (615) 741-2343
Members of the House Local Government Committee which is set to hear this bill on April 12:
John Crawford, chair – (615) 741-7623
Dave Wright, vice-chair – (615) 741-6879
Kent Calfee – (615) 741-7658
Dale Carr – (615) 741-5981
Jesse Chism – (615) 741-6954
Ron Gant – (615) 741-6890
Ester Helton – (615) 741-1934
Jason Hodges – (615) 741-2043
John Holsclaw – (615) 741-7450
Tom Leatherwood – (615) 741-7084
Harold Love – (615) 741-3831
Eddie Mannis – (615) 741-2287
Larry Miller – (615) 741-4453
Debra Moody – (615) 741-3774
Jerome Moon – (615) 741-5481
Jay Reedy – (615) 741-7098
Tim Rudd – (615) 741-2804
Johnny Shaw – (615) 741-4538
Ryan Williams – (615) 741-1875
Remember – all of the House members, if they are running again, are up for re-election this year!
What is the definition of the term “organization”?