A.5. Nonpartisan — Publication 5590

(1) Probably the most important single exception permits private foundations to

engage in any nonpartisan analysis, study, or research (which includes educational activities) and to distribute the results of these activities to the general public and legislative officials. See Treas. Reg. 53.4945-2(d)(1)(ii). The reason for the exception is that Congress did not want to discourage the educational activities of private foundations.

(2) A nonpartisan analysis, study, or research is an objective and independent

exposition of a particular subject matter. A study may advocate a position or viewpoint so long as there is a sufficiently full and fair exposition of the pertinent facts to enable the public or an individual to form an independent opinion or conclusion. However, where an analysis, study, or research merely presents unsupported opinion, distorted facts, inflammatory and disparaging terms, or conclusions based more on strong feelings rather than objective factual evaluations, it is not educational and nonpartisan. See Treas. Reg. 53.49452(d)(1)(ii), Rev. Proc. 86-43, 1986-2 C.B. 729, and Parks v. Commissioner, 145 T.C. 278 (2015), aff'd sub nom., Parks Foundation v. Commissioner, 717 F. App’x 712 (9th Cir. 2017).

(3) A nonpartisan analysis, study, or research may also contain findings or

recommendations supporting or opposing specific legislation or proposed legislation so long as it contains a sufficiently full and fair exposition of all relevant facts to enable individuals to form an independent opinion.

Example: A private foundation’s study that advocates the adoption of legislation and includes a discussion of only those facts supporting its position while omitting a discussion of all other relevant facts that do not support its position would not be considered nonpartisan and educational.

(4) If a communication, analysis, study, or research reflects a view on specific

legislation and directly encourages the recipient to act with respect to that legislation, it is not nonpartisan and, thus, not described within this exception. See Treas. Reg. 53.4945-2(d)(1)(vi). A communication, analysis, and the like, directly encourages the recipient to act if it does one or more of the following:

a. States that the recipient should contact a legislator or an employee of a

legislative body, or should contact any other government official or employee who may participate in the formulation of legislation;

b. States the address, telephone number, or similar information of a legislator or

an employee of a legislative body;

c. Provides a petition, tear-off postcard or similar material for the recipient to

communicate with a legislator, an employee of a legislative body, or with another government official or employee who may participate in the formulation of legislation. See Treas. Reg. 56.4911-2(b)(2)(iii)(A), (B), (C), and (iv).

d. Use of nonpartisan study and analysis for lobbying by a private foundation or

a public charity.

(5) If a private foundation uses its nonpartisan analysis, study, or research for

lobbying, the nonpartisan analysis may be deemed as a grass roots lobbying communication. See Treas. Regs. 53.4945-2(d)(1)(v)(A) and 56.4911-2(b)(2)(v).

(6) If a public charity uses a private foundation grant to finance a nonlobbying study,

research, communication, and so forth, and the public charity then uses it in lobbying, that private foundation’s grant ordinarily will not be deemed a lobbying expenditure. However, if that private foundation made that grant to that public charity primarily to be used for lobbying or knew (or should have known) that the public charity would use that grant for lobbying, then that grant would be a taxable expenditure. See Treas. Reg. 53.4945-2(d)(1)(v)(B).

(7) The following are examples from the regulations illustrating this exception. (For

more examples, see Treas. Reg. 53.4945-2(d)(1)(vii).)

a. M, a private foundation, establishes a research project to collect information

showing the dangers of using pesticides to raising crops. The information collected includes data about proposed legislation, pending before several State legislatures, which would ban the use of pesticides. The project takes favorable positions on such legislation without producing a sufficiently full and fair exposition of the pertinent facts to enable the public or an individual to form an independent opinion or conclusion on the pros and cons of the use of pesticides. This project is not within the exception for nonpartisan analysis, study, or research because it is designed to present information merely on one side of the legislative controversy.

b. N, a private foundation, establishes a research project to collect information

about the dangers of using pesticides to raise crops. The research project examines and reports the pros and cons of using of pesticides to raise crops. The information is collected and distributed in the form of a published report which analyzes the effects and costs of the use and nonuse of various pesticides under various conditions on humans, animals, and crops. The report also presents the advantages, disadvantages, and economic cost of allowing the continued use of pesticides unabated, of controlling the use of pesticides, and of developing alternatives to pesticides. Even if the report sets forth conclusions that the disadvantages as a result of using pesticides are greater than the advantages of using pesticides and that prompt legislative regulation of the use of pesticides is needed, the project is within the exception for nonpartisan analysis, study or research since it is designed to present information on both sides of the legislative controversy and presents a sufficiently full and fair exposition of the pertinent facts to enable the public or an individual to form an independent opinion or conclusion.

c. O, a private foundation, establishes a research project to collect information

on the presence or absence of disease in humans from eating food grown with pesticides and the presence or absence of disease in humans from eating food not grown with pesticides. As part of the research project, O hires a consultant who prepares a ‘fact sheet’ which calls for curtailing the use of pesticides. The ‘fact sheet’ addresses the merits of several specific legislative

proposals to curtail the use of pesticides in raising crops which are currently pending before State legislatures. The ‘fact sheet’ presents reports of experimental evidence tending to support its conclusions but omits any reference to reports of experimental evidence tending to dispute its conclusions. O distributes 10,000 copies to citizens’ groups. Expenditures by O in connection with this work of the consultant are not within the exception for nonpartisan analysis, study, or research.

d. Organization Z researches, writes, prints and distributes a study on the use

and effects of pesticide X. A bill is pending in the U.S. Senate to ban the use of pesticide X. Z’s study leads to the conclusion that pesticide X is extremely harmful and that the bill pending in the U.S. Senate is an appropriate and much needed remedy to solve the problems caused by pesticide X. The study contains a sufficiently full and fair exposition of the pertinent facts, including known or potential advantages of the use of pesticide X, to enable the public or an individual to form an independent opinion or conclusion as to whether pesticides should be banned as provided in the pending bills. In its analysis of the pending bill, the study names certain undecided Senators on the Senate committee considering the bill. Although the study meets the three part test for determining whether a communication is a grass roots lobbying communication, the study is within the exception for nonpartisan analysis, study or research, because it does not directly encourage recipients of the communication to urge a legislator to oppose the bill. (Assume the same facts as above, except that, after stating support for the pending bill, the study concludes: “You should write to the undecided committee members to support this crucial bill.” The study is not within the exception for nonpartisan analysis, study or research because it directly encourages the recipients to urge a legislator to support a specific piece of legislation.)

e. Organization M pays for a bumper sticker that reads: ‘STOP ABORTION:

Vote NO on Prop. X!’ M also pays for a 30-second television advertisement and a billboard that similarly advocate opposition to Prop. X. Considering the limited scope of the communications, none of the communications is within the exception for nonpartisan analysis, study or research. First, none of the communications rises to the level of analysis, study or research. Second, none of the communications is nonpartisan because none contains a sufficiently full and fair exposition of the pertinent facts to enable the public or an individual to form an independent opinion or conclusion. Therefore, each communication is a lobbying communication.

(8) The case of Haswell v. United States, 500 F.2d 1133 (Ct. Cl. 1974), cert. denied,

419 U.S. 1107 (1975), discussed the meaning of "nonpartisan analysis, study, or research" under Treas. Reg. 1.501(c)(3)-1(c)(3)(iv), noting by analogy the definition under Section 4945(e) and regulations thereunder, which make clear that projects designed to present information on one side of a legislative controversy, or that fail to report available information that would tend to dispute conclusions advocated, are partisan. The court stated that nonpartisan analysis, study, or research requires a fair exposition of both sides of an issue and noted

that the term "nonpartisan" relates to issues rather than organized political parties. The court concluded that the organization’s materials were partisan and prepared in a manner that would present most forcefully its position rather than full and fair objective expositions that would enable the audience to reach an independent conclusion.

(9) Parks v. Commissioner, 145 T.C. 278 (2015), aff'd sub nom., Parks Foundation v.

Commissioner, 717 F. App’x 712 (9th Cir. 2017), held that most of the communications at issue did not qualify as nonpartisan analysis, study, or research, reasoning that they presented distortions of fact and substantial use of inflammatory and disparaging terms, and were otherwise not educational.