Saturday, February 2, 2008
After my rant a few days ago regarding the futility of the ban on political activity by religious organizations, I thought it might be appropriate to draw your attention to two very well written scholarly articles debating the point in better terms than I presented. Donald Tobin recently published "Political Campaigning by Churches and Charities: Hazardous for 501(c)(3)s, Dangerous for Democracy, 95 Geo. L. J. 1313 (2007). Here is the abstract from his article:
Nonprofit section 501(c)(3) organizations are prohibited from participating or intervening in an election on behalf of a candidate for public office. Despite this prohibition, 501(c)(3) tax-exempt organizations have become increasingly active in political campaigns. Many organizations are either ignoring the political campaign ban or are using “issue discussion” or “lobbying” as a means of promoting candidates and testing the limits of the prohibition. Current scholarship surrounding the political campaign ban argues that the ban is either unconstitutional or inappropriate as a matter of public policy. This article argues that the ban is both meritorious and constitutional. It argues that taxpayer subsidized section 501(c)(3) organizations should not be permitted to intervene in political campaigns and that allowing them to do so will pose significant risks for the democratic system in the United States. It further argues that enforcement efforts with regard to the political campaign ban should be made public and delegated to an independent commission, outside the IRS, charged with enforcing campaign related prohibitions in the Internal Revenue Code.
I am willing to concede, for the sake of argument, that the ban may have merit. But then so too would a ban on 527 organizations have merit. Shoot, banning the media from incessantly reporting on Britney Spears has merit. My objection is that not all things meritorious are appropriate for legislation. My bias is showing, I know. This post is supposed to simply direct our dear readers to a more thorough discussion than that provided in my virtual sound bite. The other side of the debate is represented in Johnny Rex Buckles' (what a great name, he shoulda been alive during the old western days! ) forthcoming Richmond Law Review article, Is The Ban on Participation in Political Campaigns By Charities Essential to Their Vitality and Democracy? A Reply to Professor Tobin. Here is Buckles' abstract:
Religious and other charitable organizations are described in section 501(c)(3) of the Internal Revenue Code only if they do not participate or intervene in any political campaign on behalf of (or in opposition to) a candidate for public office. A charity that engages in such political campaign activity forfeits its federal income tax exemption and its ability to receive donations that are deductible by donors in computing their federal taxable income. The two-fold penalty effectively prohibits many charities from supporting or opposing political candidates. In a recent article, Professor Donald Tobin argues in favor of this effective ban by asserting that removing it would threaten the American democratic system and the vitality of charitable organizations. This Paper responds to Professor Tobin's thesis. This Article explains why his arguments do not establish that the ban on political campaign participation by charitable organizations is essential (1) to protect the vitality of the charitable sector in general, and churches in particular, or (2) to maintain a properly functioning democracy in the United States. However, this Article also explains why unfettered intervention in political campaigns by charities would pose some problems. This Article concludes that some electioneering by charities is proper, and that alternatives to the ban would better address the most compelling concerns raised by Professor Tobin.
I've self-appointed myself final and ultimate arbiter in chief between these two and will have more to say about it later. I do want to commend both articles to those who are interested. They are both thoroughly researched, cited, and very smoothly written.