A.8. Providing Technical Advice or Assistance to Legislative Bodies

(1) Under Section 4945(e)(2), a private foundation is not attempting to influence

legislation if it is providing technical advice or assistance to a governmental body, a governmental committee, or a subdivision of either of the foregoing. The technical advice or assistance must be made in response to a written request from such governmental body or committee. The request must be in the name of the governmental body, committee, or subdivision. See Treas. Regs. 53.49452(d)(2)(i) and (ii).

(2) Similarly, the response, oral or written, from the private foundation must be made

available to every member of the requesting governmental body. See Treas. Reg. 53.4945-2(d)(2)(i). It may include opinions or recommendations with respect to legislation, but only if they are specifically requested or are directly related to the information so requested. Because such advice or assistance may be given only at the express request of a governmental body, committee or subdivision, such advice or assistance need not qualify as nonpartisan analysis, study or research. See Treas. Reg. 53.4945-2(d)(2)(ii).

(3) Section 4945(e)(2) corresponds to the position taken in Rev. Rul. 70-449, 1970-2

C.B.111. In that revenue ruling, a university described in Section 501(c)(3) was requested by a Congressional committee to furnish a representative from its faculty to provide expert testimony on a pending legislation. The revenue ruling concluded that the university did not engage in prohibited legislative activity within the meaning of Section 501(c)(3), since it was merely responding to an official request of a Congressional committee, and it did not initiate the appearance.

(4) The following are examples illustrating this exception. (For more examples, see

Treas. Reg. 53.4945-2(d)(2)(iii).)

a. A, an official of the State Department, makes a written request in his official

capacity for information from foundation Y relating to the economic development of country M and for the opinions of Y as to the proper position of the United States in pending negotiations with M concerning a proposed treaty involving a program of economic and technical aid to M. Y’s furnishing of such information and opinions constitutes technical advice or assistance.

b. In response to a telephone inquiry from Senator X’s staff, organization B

sends Senator X a report concluding that the Senate should not advise and

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consent to the nomination of Z to serve as a Supreme Court Justice. Because the request was not in writing, and because the request was not from the Senate itself or from a committee or subcommittee, B’s report is not within the scope of the exception for responses to requests for technical advice. Accordingly, B’s report is a lobbying communication unless the report is within the scope of the exception for nonpartisan analysis, study or research.

c. Assume the same facts as in example above, except that B’s report is sent in

response to a written request that Senator X sends to B. The request from Senator X is a request from the Senator as an individual member of the Senate rather than from the Senate itself or from a committee or subcommittee. Accordingly, B’s report is not within the scope of the exception for responses to requests for technical advice and is a lobbying communication unless the report is within the scope of the exception for nonpartisan analysis, study or research.

d. Assume the same facts as in example above, except that B’s report is sent in

response to a written request from the Senate committee that is considering the nomination for an evaluation of the nominee’s legal writings and a recommendation as to whether the candidate is or is not qualified to serve on the Supreme Court. The report is within the scope of the exception for responses to requests for technical advice and is not a lobbying communication.