The Yale Law Journal Volume 93, Number 8, July 1984 With Charity for All Oliver A. Houckt TABLE OF CONTENTS INTRODUCTION 1419 I. TOWARDS AN UNDERSTANDING OF CHARITABLE ORGA- NIZATIONS UNDER THE INTERNAL REVENUE CODE 1421 A. An Historical Perspective 1422 B. Public Charities and the Internal Revenue Code 1425 1. Income Tax Exemptions 1426 2. Contributions and Deductions 1428 3. Fringe Benefits and White Hats 1429 C. Civic Leagues and Business Leagues 1430 1. Civic Leagues and Social Welfare Organizations 1430 2. Business Leagues and Chambers of Commerce 1432 t Associate Professor, Tulane Law School. This study was begun in August 1981 and proceeded through December 1983. No sponsorship or funding was received from any source; if its methods or conclusions are faulty, they are at least those of the author and of no other influence. Tribute should be paid here, however, to the work of several law students who assisted in this research, with small reward, and without whom the assembly of information and law could not have been accomplished: Karen A. Adams, Michael G. Dwyer, John D. Edgcomb, Noel T. Johnson, Frank S. Jones, Barry R. Scott, Susan B. Snyder and Michael A. Stroud. The assistance of the Internal Revenue Service in providing public records is also acknowledged with thanks. 1415 The Yale Law Journal Vol. 93: 1415, 1984 D. The Requirements for Public Charities in Practice: The "Organizational" and "Operational" Tests 1434 II. TOWARDS A DEFINITION OF PUBLIC INTEREST LAW 1438 A. The Roots of Public Interest Law 1439 B. The Internal Revenue Service Response to Public In- terest Law: The 1970 Guidelines 1443 C. Subsequent IRS Guidance on the Public Interest Law: Is There "Law to Apply"? 1451 III. THE BUSINESS PUBLIC INTEREST LAW FIRMS 1454 A. The Powell Memorandum 1457 B. From Powell to Pacific 1458 C. Pacific Legal Foundation 1460 1. Utilities and Energy Development 1465 2. The Regulation of Chemicals and Toxic Sub- stances 1468 3. Land Use and Clean Air Regulation 1470 4. Issues of Minority Representation 1473 D. National Legal Centerfor the Public Interest 1474 E. Mountain States Legal Foundation 1478 F. Mid-America Legal Foundation 1486 G. Gulf Coast and Great Plains Legal Foundation 1490 H. Mid-Atlantic Legal Foundation 1494 I. Southeastern Legal Foundation 1498 J. New England Legal Foundation 1502 K. Capital Legal Foundation 1506 L. Corroboration from an Unlikely Quarter: The Horowitz Report 1512 IV. REFLECTIONS ON THE QUALIFICATION OF THE BUSINESS PUBLIC INTEREST LAW FIRMS FOR TAX EXEMPTION AS PUBLIC CHARITIES 1515 1416 Public Interest Law Firms A. The "Operational Test" in Action: Some Suggestions for Improvement 1515 B. Altered States: Qualification of the Business PILFs Under More Appropriate Tax-exempt Categories 1520 1. Qualification Under Sections 501(cX4) and 501(cX6) 1520 2. The National Chamber Litigation Committee: A Litigation Modelfor the American Business Com- munity 1521 3. The Effect of Re-qualification 1525 C. Reaching the Altered State: Questions of Standing 1526 1. Falling over Standing 1526 2. Standing as a Sword 1530 D. Reflections on Another Remedy: "A Plague on Both Your Houses" 1535 1. The Impact of Administrative Agencies 1536 2. The Impact of Money 1540 V. CONCLUSION 1544 APPENDIX I SUMMARY OF DOCKETS AND EVALUATIONS 1546 APPENDIX II METHODS OF RESEARCH AND EVALUATION 1547 I. RATIONALE FOR THE BUSINESS PILFs: DAVID AGAINST GOLIATH 1547 II. METHODS OF RESEARCH 1553 A. The Dockets 1553 B. Inside Interest 1555 C. Evaluation 1556 III. STANDARDS FOR EVALUATION 1557 A. The Economic Interest 1558 B. The Benefit 1559 C. Hard Cases and the Search for Flexibility 1560 1417 The Yale Law Journal Vol. 93: 1415, 1984 D. Amicus Appearances: A Looser Standard 1562 B. Government Interests and the Public Interest 1562 F. The "Substantiality" Test: The Ultimate Safety Valve 1563 1418 Public Interest Law Firms INTRODUCTION This is a study of public interest law and its practice by a group of inter-related legal foundations that were created, funded, and remain largely directed by leaders of American business corporations. The ques- tion raised is the extent to which their practice is consistent with accepted notions of charity under federal tax laws and with the more particular requirements for public interest law firms. Few areas of law are more elusive than the regulation of exempt orga- nizations under section 501(c) of the Internal Revenue Code. The section is broad and within it one finds separate provisions for, among others, churches and hospitals, civic leagues and veterans organizations, labor un- ions, irrigation companies, animal shelters, and benevolent life insurance associations. In common, these are non-profit organizations: They work for something other than their own financial gain. In return, they receive an assortment of tax advantages, including exemption from federal income taxes. Within this spectrum of exempt organizations, however, is a most- advantaged class, those qualified under section 501(c)(3) as public chari- ties, organized and operated for "religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals." Contributions to these public charities are exempt to the donor. In the eyes of the Code and of the public at large, these organizations are the most worthy of all. The Internal Revenue Service has long recognized the practice of law in pursuit of charitable goals as an exempt activity. The American Civil Liberties Union and the National Association for the Advancement of Colored People have been so engaged beyond the lifetimes of most attor- neys active today. By the late 1960's, however, a growing number of orga- nizations formed exclusively to litigate issues as diverse as child care, prison reform, and clean air forced the Service to come to grips with the question of when such litigation was in the public interest, and thus to be recognized as charitable under section 501(c)(3) of the Code. In 1970, after several false starts, the Service arrived at perhaps the only definition of public interest legal practice consistent with its prior exemptions and intellectually tenable amidst the rising clamor for recognition from organi- zations that were fiercely ideological, at times in flat opposition to each other, and at all times claiming to represent the best interests of the American public. Public interest law firms were qualified not by their particular ideology but by the service they performed, the representation of otherwise underrepresented interests at the bar. The years which followed have seen few refinements. The Internal Revenue Service has issued no further regulations and only a handful of revenue rulings on the subject. Audits have led to the disqualification of no firm in practice. The field has risen and ebbed with dozens of firms 1419 The Yale Law Journal Vol. 93: 1415, 1984 established to represent one or more under-financed interests in the life of the country, maintaining a base of about 100 organizations. The most sig- nificant development since 1970 has been a new breed of public interest organizations fashioned closely after the older ones but, for the first time, founded, financed, and presided over by the chief executives and counsel for such entities as Exxon, ARMCO, and General Motors, the chemical, mining, and construction industries, public and private utilities, national and international banks, the most powerful economic forces in America. The forerunner of this breed was the Pacific Legal Foundation, estab- lished in Sacramento, California, and qualified as a public charity in 1973. Within the next few years, under the aegis of a group of corporate executives formed as the National Legal Center for the Public Interest, the Pacific Legal model was adopted for the Mountain States Legal Foun- dation (Denver), the Gulf and Great Plains Legal Foundation (Kansas City, Missouri), the Mid-American Legal Foundation (Chicago), the New England Legal Foundation (Boston), the Southeastern Legal Foun- dation (Philadelphia), and the Capital Legal Foundation (Washington, D.C.). This new form of public charity presents, or should present, the Service with its second major challenge in public interest law. The creation of these firms by corporate leaders should not by itself be disqualifying, nor should their participation in an at least limited fashion on the organiza- tions' directing bodies. Major funding of these firms by corporations and their foundations is likewise, within reason, no bar. What causes the most serious difficulties, or should cause them, is the conduct of these firms, the cases they have undertaken, a high percentage of which are indistinguish- able from those of their business sponsors, and a smaller but still dis- turbing percentage of which appear to be on behalf of the very corpora- tions that are their major donors and that sit on their directing boards. How the Service's definition of public-interest practice applies to firms which in substantial measure support the objectives of these corporate in- terests and, as they characterize their actions, those of the free-enterprise economic system, is at the heart of this investigation. Excluded from this study are the merits of the legal actions involved, for essentially the same reasons which lead the Service to find another means of defining public interest practice. One person's good is another's bad, a diversity long recognized as a strength of American democracy. Other data do emerge, however, which, while only incidental to the in- quiry, may be of interest. At an aggregate funding of approximately $14 million over six years, the seven firms associated with the National Legal Center for the Public Interest have involved themselves in 227 identified legal actions. The Pacific Legal Foundation, which has received roughly 1420 Public Interest Law Firms equivalent funding since 1973, adds another 167 actions." Only a handful of cases were initiated by these PILFs directly and in less than one half did they participate as parties; the majority were appearances as amicus curiae.