Thursday, December 13, 2012

Cafardi: Prohibition on Church Electioneering

Nicholas P. Cafardi (Duquesne) has published Saving the Preachers:  The Tax Code's Prohibition on Church Electioneering in 50 Duqesne University Law Review 503 (2012).  Here is a brief abstract of the article on SSRN:

Churches, like other 501(c)(3) organizations are subject to a prohibition on electioneering. This prohibition has survived decades of constitutional challenges because the tax exemption that 501(c)(3) organizations enjoy is a privilege and not a right. This article examines the claim of churches that they have a right to intervene in elections contrary to existing IRS regulations based on the free exercise clause and the Religious Freedom Restoration Act, and finds such claims wanting.

The article explains that tax exemption and the ability to attract tax deductible gifts are a form of government and taxpayer subsidy. This subsidy exists for 501(c)(3) organizations because Congress believes that their charitable activities promote the public welfare and are worthy of subsidy. On the other hand, Congress did not wish to subsidize the political activities of tax exempt organizations, hence the prohibition. The rules prohibiting electioneering are rather lenient and very rarely have churches lost their exemption. Finally this article explains that this prohibition on electioneering has been very beneficial because it has helped maintain the separation of church and state that is fundamental to our nation.


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