Singer, actress and comedian Bette Midler took to Twitter on April 18 to promote Gabby Giffords’ new gun control effort.
“GABBY GIFFORDS SPEAKS, AND SHE IS FURIOUS!!” Midler wrote as she touted a New York Times opinion column authored by the former Arizona Democratic congresswoman who survived a 2011 shooting and has since launched an advocacy group that aims to curb gun violence.
Just weeks later, Midler upped the ante, donating $10,000 to Americans for Responsible Solutions PAC, the super PAC arm of Giffords’ group. The gift came from Midler’s private family foundation, according to campaign finance records.
Before the second quarter ended in June, another family foundation — the Rupa and Bharat B. Bhatt Foundation — contributed $5,000 to the group and the New England Congregational Church in Saratoga Springs, N.Y., gave $250.
They were modest contributions considering the group raised $6.6 million in the first half of 2013 — more than any other super PAC. But they were also strictly prohibited by the Internal Revenue Service.
Nonprofits organized under Sec. 501(c)(3) of the U.S. tax code are restricted from “directly or indirectly” intervening in political campaigns. And private foundations — such as the Midler and Bhatt foundations — are also prohibited from lobbying to influence legislation.
Since its creation in January, Americans for Responsible Solutions has urged Congress to enact more robust firearms background checks — and used television advertisements, radio spots and robo-calls to mobilize supporters, sometimes through its 501(c)(4) nonprofit arm and sometimes with its super PAC.
Americans for Responsible Solutions backed the bipartisan legislation sponsored by Sens. Joe Manchin, D-W.Va., and Pat Toomey, R-Pa. And after that bill failed to clear a Republican-led filibuster in April, Giffords and her husband, Mark Kelly, pledged to “use every means possible to make sure the constituents of these senators know that their elected representatives ignored them.”
Tax experts told the Center for Public Integrity that foundation donations to Giffords’ super PAC could be “very problematic.”
Nonprofits organized under Sec. 501(c)(3) “cannot spend one penny” on partisan campaign activity, said Cleta Mitchell, an attorney in the Washington, D.C., office of Foley and Lardner LLP.
“You can’t give them money to do things that you can’t do,” she continued.
Political committees, such as super PACs, are “essentially radioactive” for 501(c)(3) nonprofits, added Marcus Owens, a lawyer at D.C.-based Caplin & Drysdale who previously headed the IRS's exempt organization division.
Records show that the Americans for Responsible Solutions PAC refunded the Presbyterian and New England Congregational Church’s $250 donation on June 21. Julie Campbell, the church’s office manager, said that when the money came back, the congregation was told it was voluntarily returned because it came from a “house of worship.”
In response to questions from the Center for Public Integrity, Katie Hill, the communications director of Americans for Responsible Solutions, said the super PAC was in the process of refunding the other two nonprofits’ contributions.
“These are not illegal contributions for us to take, but it’s our understanding that the donations are not appropriate for the donors to make,” Hill wrote in an email. “Thus, we are processing refunds, which will be disclosed on our next report.”
Pam Baker, an accountant at the firm in Nashville, Tenn., that handles the Midler Family Foundation’s books, said her company was “researching it and will have to get back to you.”
(Update, Aug. 15, 2013, 4:27 p.m.: Ken Sunshine, Midler's publicist, told USA Today that the singer's donation through her foundation was "an accounting mistake" and that Midler has issued a personal check as a substitution.)
Rupa and Bharat B. Bhatt did not respond to requests for comment.
Bharat Bhatt is a businessman who once worked as the president and chief operating officer of GreenPoint Financial Corp. He currently serves on the New York Institute of Technology’s board of directors and is the board chairman of Kodiak Funding, LP, a Virginia-based financial company that specializes in real estate investing.
This is not the first time that a nonprofit has made a donation mistake in the super PAC arena.
Last year, Colorado Christian University donated $5,000 to the super PAC affiliated with Arizona’s Republican Gov. Jan Brewer, which it asked to be refunded when the Center for Public Integrity brought it to the school’s attention.
And the pro-Mitt Romney super PAC Restore our Future accepted $100,000 from the Rod and Leslie Aycox Foundation in July 2011. That money, too, was ultimately returned.