Beth Barrett, reporter for the L.A. Daily News reported yesterday that the Ethic Commission (unclear whether it is the California or Los Angeles) records indicated that 39 churches of a wide-variety of denominations gave $15,000 to political campaigns since 1998. See Beth Barrett, Witch Hunt for Churches?: Nonprofit Status Jeopardized by Donations to Political Campaigns, L.A. Daily News, Sept. 26, 2006. Once again: The law is crystal clear. Section 501(c)(3) organizations, such as churches, cannot...
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contribute money to campaigns of those seeking election to public office.
Many have suggested that the IRS is out to get certain churches, forced into action by the party holding the White House. That may have been true long ago, but a February 2005 report by the Treasury Inspector General makes is absolutely clear that those currently running the IRS have not selected cases based on partisan objectives.
And then we have the sloppy thinking of the clergy, legislators, and some members of the public. Many of those quoted in Ms. Barrett's article project "the dog ate my homework" tone. Ms. Barrett quotes California Assemblyman Mark Ridley-Thomas as having said,
"Is this the moment of witch hunt against churches willing to speak out against this administration?"
casting the issue as one of free speech.
Mr. Ridley-Thomas should consider the law on this issue. First Amendment rights and religious freedom are not at issue. There may be a right to free speech, but there is no constitutional right to federal tax exemption under Section 501(c)(3). See Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983), in which the United States Supreme Court held that the Section 501(c)(3) prohibition against substantial lobbying does not impose an unconstitutional burden on free speech by limiting the deductibility of charitable contributions to organizations that are willing to limit the amount of their advocacy activities. It also refused to strike the limitation down on equal protection grounds.
Given the current makeup of the Supreme Court and recent confirmation controversies, many will assume that this was somehow a political or unreasoned decision. Once again, the facts are enlightening. The Supreme Court’s opinion in Taxation With Representation was unanimous, with Justice Thurgood Marshall concurring in Justice Rehnquist’s opinion. Justice Rehnquist, in summarizing the law, wrote:
In these cases, as in Cammarano, Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for TWR's lobbying. We again reject the "notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State."
The Reverend Frederick O. Murph also gets it wrong, proclaiming,
At the time we thought that Mr. Parks would make a good councilman. The separation of church and state is such a gray area.... Our job is to reach beyond the walls to the citizens, to be the moral voice of the community and for the nation. From my perspective it's a very gray area.
No, Reverend, we are not in a gray area here. The prohibition in Section 501(c)(3), the related regulations, and the case law are absolutely clear. Churches cannot give money to political campaigns. If you don’t like it, lobby Congress, something that you are permitted to do within certain limits.
The prohibition goes back 50 years to when a young Senator Lyndon Baines Johnson decided he didn’t like how some exempt organizations were supporting his opposition. He put an end to that with his proposal to limit political activity by Section 501(c)(3) organizations.
Setting aside LBJ's motivations, the prohibition makes perfect sense in the context of the tax code. Congress has clearly indicated that the public should not subsidize political activity through tax deductions for political contributions. Without the limitation in Section 501(c)(3), individuals could do indirectly (make tax-deductible charitable contributions to Section 501(c)(3) organizations) what they cannot do directly (make tax-deductible political contributions to candidates).
USC law and religion professor Ronald Garet should have spoken more responsibly. He told Ms. Barrett,
Just as the government isn't going to look too closely at the religious uses churches are making of tax dollars they receive, so it might be equally appropriate if they don't look too closely at the political activity of the churches that can receive tax-deductible donations.
Professor, the law is clear and for the IRS to turn a blind eye to flagrant violations of the law is simply to undermine overall respect for the law. The reference to “tax dollars they receive” appears to be a reference to faith-based grants. If that is what Professor Garet meant, he might want to take note of what is happening in the federal courts. The Bush Administration may be ignoring misuses of the grant money by some churches and other religious organizations, but private parties have not been as passive. There are growing number of suits against religious organizations over their use of both federal and state grant money in inappropriate ways. Several of these suits have been successful in challenging the use of grant money for religious rather than social services.
It is time for the IRS to start pulling exemptions. If you want to participate in the political process, you gotta pay your dues (taxes). It can begin in Southern California. It is clear that the churches aren't all saints.
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