Association of the Bar, 858 F.2d at 879-80. This Congressional policy is grounded in the First Amendment. As Chief Judge Mikva stated in Fulani III, "the government of any democracy, let alone one shared by the values of our constitution's First Amendment, must avoid tilting the electoral playing field, lest the democracy itself becomes tarnished." 935 F.2d at 1337 (Mikva, C.J., dissenting).
Fulani alleges that the Federal Defendants' nonenforcement of the anti-electioneering provisions of § 501(c)(3) against the League constitutes a "tilting of the electoral playing field" in violation of Fulani's First Amendment rights. She asserts that the Federal Defendants have a duty to revoke the tax-exempt status of any § 501(c)(3) organizations that succumb to the partisan pressure of the "official" candidates, Democratic and Republican party organizations, and the national networks.
While this Court rejected Fulani's First Amendment claim in Fulani I, the claim stated here is distinguishable from that previous claim. The gist of the First Amendment claim in Fulani I was that Fulani's First Amendment rights were violated simply by her exclusion from presidential primary debates as an independent minor party candidate. Relying on various authorities, this Court rejected that claim, noting that neither Fulani nor any other minor party candidate has a First Amendment right to participate the League-sponsored debates. See Fulani I, 684 F. Supp. at 1192 n.4; see, e.g., Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 36 L. Ed. 2d 772, 93 S. Ct. 2080 (1973) (no individual member of the public has a right to broadcast her own particular views on any matter); Johnson v. Federal Communications Comm'n, 264 U.S. App. D.C. 372, 829 F.2d 157, 160 (D.C. Cir. 1987) (minor party candidates have no right under First Amendment or Communications Act of 1934 to be included in debates).
In the matter at hand, Fulani is not asserting that the First Amendment guaranteed her a right to participate in the Debate. Rather, her claim is that the partisan activities of the League in the nature and application of its Selection Criteria for the Debate, and of the Federal Defendants in allowing the League to act in a partisan manner while benefitting from § 501(c)(3) tax-exempt status, removed the vital element of governmental neutrality from the New Hampshire Democratic party primary process, and it is Fulani's First Amendment rights which are encroached upon by this loss of neutrality.
Thus, the First Amendment claim asserted here is distinguishable from those rejected in the past.
D. The Relief Sought Cannot Be Granted
The Federal Defendants correctly contend that their Rule 12(b)(6) motion should be granted on the ground that the relief sought by Fulani may not be granted by this Court. This conclusions follows from the fact that Fulani's action has the character of mandamus, and a writ of mandamus is inappropriate when a plaintiff seeks to direct or influence the absolute discretion of a government agency. See Flynn v. Shultz, 748 F.2d 1186, 1194 (7th Cir. 1984) (citing Interstate Commerce Comm. v. Humboldt Steamship, 224 U.S. 474, 830, 56 L. Ed. 849, 32 S. Ct. 556 (1985)), cert. denied, 474 U.S. 830 (1985); see also Rizzo v. Terenzi, 619 F. Supp. 1186, 1189 (E.D.N.Y. 1985) (action to compel officer of the United States to perform a duty constitutes request for mandamus). In light of the fact that the Federal Defendants have "very broad authority" to interpret and administer the tax laws, Bob Jones University v. United States, 461 U.S. 574, 596-97, 76 L. Ed. 2d 157, 103 S. Ct. 2017 (1983), the present action is not the proper subject matter for mandamus. See Sprecher v. Graber, 716 F.2d 968 (2d Cir. 1983) (mandamus inappropriate to compel Security and Exchange Commission to take enforcement action).
Fulani responds to this characterization of her action and proposed relief by contending that the mandamus test "is irrelevant, because Fulani's claim is not that the IRS failed to perform a ministerial duty, but rather that it exercised its discretion in a politically partisan manner." Fulani Mem. 33. However, this alleged distinction does not warrant this Court to grant the relief Fulani seeks. The fact remains that Fulani is requesting this Court order the Federal Defendants to act in a particular manner that falls within the scope of its discretionary authority, and as such, it constitutes a request for a writ of mandamus. But as was noted above, mandamus is not appropriate in this situation.
The posture of Association of the Bar is instructive on this point. There, ABCNY appealed the decision of the Commissioner of Internal Revenue denying ABCNY § 501(c)(3) status in the United States Tax Court. The Tax Court held that the ABCNY qualified for tax-exempt status and ordered the Commissioner to certify it as a tax exempt organization, see Association of the Bar of City of New York v. Commissioner of Internal Revenue, 89 T.C. 599, 611 (1987), and it was this holding that was reversed by the Second Circuit in Association of the Bar, 858 F.2d at 876. It is the Tax Court, not this Court, that has the appropriate jurisdictional authority to order the IRS to exercise its otherwise discretionary power in one way or another.
This Court has the authority to issue a declaratory judgment regarding Fulani's rights, and Fulani's rights have been explicated in the course of this discussion. However, Fulani has failed to offer any authority to support her claim that it is within the jurisdiction of this Court to take the further step of ordering the Federal Defendants to revoke the League's tax-exempt status. Therefore, Fulani has not stated a claim for which the requested injunctive relief is an appropriate remedy because the remedy cannot be granted by this Court.
For the reasons set forth above, the Federal Defendants' 12(b)(1) motion for an order dismissing Fulani's Amended Complaint for lack of subject matter jurisdiction is denied, and their 12(b)(6) motion to dismiss the Amended Complaint for failure to state a claim upon which relief may be granted is granted.
It is so ordered.
New York, N.Y.
January 5, 1993
ROBERT W. SWEET