Thursday, May 16, 2013
As you all must know by now, either from prior posts on this blog or any of a million other sources, the IRS is in deep trouble for its handling of certain 501(c)(4) applications. I’m not going to comment directly on what the IRS did or didn’t do in its administrative systems that resulted in the current mess. But I do think it is time to comment on the root of all the trouble, which is the existence of 501(c)(4) itself.
Today in the NYT on-line "Room for Debate" feature, which you can view here, I proposed my solution: just get rid of 501(c)(4) (there are also very thoughtful contributions from Lloyd Mayer - who also posts on this blog, Ellen Aprill, Doug Mancino and Rosemary Fei). But I was limited to 300 words in that format; here I have the freedom to flesh out my argument a bit more, so I’m going to take advantage.
The argument boils down to this: the administrative havoc created by the (c)(4) designation in conjuntion with the Citizens United case simply does not outweigh whatever marginal public benefit the (c)(4) designation produces. Accordingly, we should repeal it.
So let’s begin with some background. Have you ever asked what the difference is between a "social welfare" organization under (c)(4) and a charity under (c)(3)? My students in my Tax-exempt Organizations class do so every year. And here is the convoluted, though ultimately simple, answer.
A 501(c)(4) organization is one that, according to IRS regulations, “is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community. An organization embraced within this section is one which is operated primarily for the purpose of bringing about civic betterments and social improvements.” Now it should be fairly obvious that “bringing about civic betterments and social improvements” is a charitable purpose that would qualify an organization for tax-exemption under 501(c)(3), rather than 501(c)(4). Indeed, “improving society” is a core rationale for the existence of charity. So why do we have 501(c)(4) at all? Why aren’t these organizations simply exempt under 501(c)(3)?
The answer lies principally in two acute differences in the statutory language between 501(c)(3) and 501(c)(4). 501(c)(3) states that an organization qualifies for exemption under that section only if “no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation . . . and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” In other words, 501(c)(3) organizations cannot engage in a “substantial” amount of lobbying, and cannot engage AT ALL in political campaign activity. In contrast, 501(c)(4) contains no such limitations, and in fact the IRS’s view is that lobbying to advance social welfare is itself a social welfare purpose. As a result, a (c)(4) can engage in an unlimited amount of lobbying, contrary to the (c)(3) limitation. On the other hand, the regulations under (c)(4) confirm that political campaign activity is NOT a social welfare purpose; but note that (c)(4) does not have the absolute prohibition against political campaign activity that a (c)(3) does. Accordingly, a (c)(4) also can engage in political campaign activity, as long as its primary purpose remains promotion of social welfare.
So when you boil all this down, a 501(c)(4) is essentially an organization with a charitable purpose that either engages in too much lobbying or too much (i.e., ANY) political campaign activity to qualify as a 501(c)(3) organization. And that in turn leads to the ultimate question: why should we grant tax exemption to an organization that would qualify as a charity but essentially violates the limitations on political activity in 501(c)(3)?
[Side note here: Ms. Fei and Mr. Mancino note that there are a few organizations that don’t engage in excessive lobbying but are (c)(4)’s because they don’t meet some other requirement of (c)(3) status, like the strict private benefit rule. I’ll pen a longer response to that at some point, but my quick response is pretty much the same: even if that is true – and I think the IRS hasn’t been entirely clear on these points – it shouldn’t be. Why give a tax break to organizations that don’t serve a broad enough charitable class or generate private benefits that would disqualify them from charitable status?]
My answer is, we shouldn’t. Part of the problem with answering questions like this is that we do not have any coherent theory for why we give “charities” tax exemption – or indeed, what a “charity” is for exemption purposes. But most people agree that charities are organizations that provide a “public benefit” by offering services otherwise unavailable from the private market and which government either chooses not to provide or is affirmatively prohibited from providing (e.g., religion). Different folks explain this differently - the economists talk about market failure; the political scientists and sociologists talk about “pluralism” and so forth. But the general concept is the same: we can think of charities as organizations that are “gap fillers” – they fill the holes left by the private market and government. Exemption is a partial government subsidy to help these organizations provide their services – partial, because the government can’t or won’t fully fund the activities of these organizations, but government can “help” by freeing them from tax payments (it also helps by permitting a tax deduction for charitable contributions to these organizations and permitting them to issue tax-exempt bonds).
If you buy this explanation (and admittedly not everyone does), then the (c)(4) essentially is filling a highly specialized niche – it’s a charity that lobbies too much, or engages in political campaign activity. So my question is whether this is a kind of market failure (or pluralism or whatever) that justifies the partial government subsidy of tax exemption. My answer is “no” – why should government subsidize organizations to lobby the government? Do we really believe there is a serious market failure in lobbying? That there is too little lobbying in the world? So much so that the government should give a partial subsidy for lobbying?
But, you may respond, don’t (c)(4) organizations lobby on behalf of groups that otherwise have little voice in government? Suppose that an organization’s primary purpose is to lobby for more government programs for the poor. Surely that is something that is worth subsidizing, right? I disagree. Note that a charity exempt under 501(c)(3) and conducting some kind of active program for the poor can in fact engage in SOME lobbying – just not a “substantial amount” of lobbying. I think one can make a good case that if you are concerned about “giving voice” to otherwise-disenfranchised groups, that voice is best expressed by groups that have active programs involving services to those disenfranchised, rather than organizations that do nothing but purport to represent those groups in legislation. And if your primary activity is conducting a charitable program other than lobbying, you get exemption under 501(c)(3) AND you can lobby (some). But even if you disagree with this argument, I come back to the following point: if we think too much lobbying (and ANY political campaign activity) is "bad" for a charity, what is the justification for creating a "charity lite" category that permits these things?
So my bottom line is this. The (c)(4) designation doesn’t get us much public benefit that we couldn’t get with a (c)(3) that has an active program of service and lobbies on the side. And yet as we have seen over the past two years, the (c)(4) presents virtually insoluble administrative problems of line-drawing regarding when political campaign activity is “primary” and between “issue advocacy” and lobbying (completely permitted) and “political campaign activity” (permitted as long as it is not the “primary purpose”). Despite Ms. Fei and Mr. Mancino's pleas for better enforcement, I'm highly doubtful that the IRS will ever be able to adequately enforce these lines in the (c)(4) context. They can't even enforce them in the (c)(3) context very well, where the backdrop is an absolute prohibition on political campaign activity coupled with a softer limit on lobbying. So what would make anyone think there is some "magic formula" that will make these things enforceable in the (c)(4) context with even less-well-defined limits?
So my solution: get rid of the (c)(4). It just isn’t worth the angst.