Tuesday, October 11, 2016

When Does “Educating” Become “Lobbying?”

A recent article  by Martin Levine highlights the struggle to define the line between providing education about issues and lobbying for specific legislative outcomes. The center of the controversy revolves around a complaint filed in 2012, when the Center for Media and Democracy and the Common Cause complained to the IRS that the American Legislative Exchange Council (ALEC) was incorrectly classified as a 501(c)(3) organization.

The ALEC characterizes itself as an organization “dedicated to advancing and promoting the Jeffersonian principles of limited government, free markets and federalism at the state level. ALEC accomplishes this mission by educating elected officials on making sound policy and providing them with a platform for collaboration with other elected officials and business leaders.”

The ALEC’s opponents, however, paint a different picture of the organization, claiming “the primary purpose of the organization is to provide a conduit for its corporate members and sponsors to lobby state legislators.”

As evidence of this lobbying, opponents of the ALEC point to a string of tax deductible donations from EXXON to the ALEC totaling over $1.7 million. The ALEC’s official position on climate change only leads to increased suspicions. According to the ALEC, there is no threat to the public from climate change or increased greenhouse gasses. In fact, the ALEC has stated that global warming is beneficial, claiming that “during the warming of the past 100 years global GDP has increased 18-fold, average life span has doubled, and per capita food supplies increased.”

While this information is certainly not determinative of foul play, it does provoke one to question the line between information providing and lobbying.


David Brennen

October 11, 2016 in Current Affairs, Federal – Legislative, In the News, State – Legislative | Permalink | Comments (0)

Monday, October 10, 2016

Tax-Exemption and Political Candidate Support

With the Election approaching, many are voicing their opinion on the Johnson Amendment, which denies 501(c)(3) organizations the ability to actively campaign or lobby for a political candidate. Currently, in addition to being unable to support a candidate for political office, nonprofit organizations are also unable to oppose political candidates.

Proponents of the rule fear that allowing nonprofits to advocate for candidates could create unhealthy political factions within their organizations and communities at large. A larger concern is that donations from these organizations would be tax deductible and could exacerbate the level of spending and the political power of large scale donors, heavily influencing electoral outcomes. A statement from the Americans United for Separation of Church and State exclaimed “If individual organizations came to be regarded as Democratic charities or Republican charities instead of the nonpartisan problem solvers that they are, it would diminish the public’s overall trust in the sector and thus limit the effectiveness of the nonprofit community.”

Opponents of the rule, like Republican Party Nominee Donald Trump, believe that organizations have a right to voice their opinion for leaders they believe would best represent them. In a speech to Christian leaders Trump stated “if you like somebody or want somebody to represent you, you should have the right to do it.” Opponents also believe freeing 501(c)(3) organizations from these regulations would increase voter participation and elevate levels of political debate.

It is unlikely that this debate will be solved in the near-term, and certainly not in time to impact the nearing election. However, a fundamental change to the Johnson Amendment could drastically change the way campaigns are ran and financed.


David Brennen

October 10, 2016 in Church and State, Current Affairs, Federal – Executive, Federal – Legislative, In the News | Permalink | Comments (0)

Thursday, August 11, 2016

The IRS Continues to Take a Beating Even as It Implements the New 501(c)(4) Notice Requirement

IRSThe "Tea Party" application controversy continues to take a toll on the IRS, even as the Service implements the congressionally enacted notice requirement for section 501(c)(4) social welfare organizations. First, the IRS suffered setbacks in two of the cases pending against it that grew out of the controversy:

  • In Freedom Path, Inc. v. Lerner, the U.S. District Court for the Northern District of Texas rejected the government's motion to dismiss a First Amendment claim against the IRS, finding that the plaintiff's concerns regarding future curtailment of speech was sufficient to establish injury and that the case still presented a live controversy despite changes in the Service's processing of applications. Coverage: Bloomberg BNA Daily Tax Report.
  • In True the Vote, Inc. v. IRS and Linchpins of Liberty v. United States, decided together although argued separately, the U.S. Court of Appeals for the District of Columbia Circuit reversed the lower court's dismissal of actions for injunctive and declaratory relief as against the government, concluding that those claims were not moot. (The appellate court did, however, affirm the lower court's dismissal of Bivens actions and statutory claims against individual government officials and the Service.) Coverage: Wall Street Journal. For blog posts discussing the opinion, see The Surly Subgroup (Philip Hackney) and The Volokh Conspiracy (Eugene Volokh).

Second, many Republicans in the House of Representatives continue to call for the impeachment of IRS Commissioner John Koskinen, not satisfied with his earlier censure by the House Oversight and Government Reform Committee on a party-line vote. (Coverage: The HillPoliticoRoll Call.) Third, new documents relating to the controversy continue to trickle out from various sources, at a minimum providing an excuse to reassert claims against the Service and its (mostly now gone) officials. For example, see this Judicial Watch press release in the wake of it gaining access to approximately 300 pages of FBI documents relating to the FBI's investigation of the controversy.

And yet life still goes on, which in this instance means implementation of the new section 506 notice requirement for section 501(c)(4) organizations. That implementation has taken the form of Revenue Procedure 2016-41 and related final and temporary regulations (T.D. 9775). These documents detail how the notice requirement applies both to new section 501(c)(4) organizations formed after December 18, 2015 (the date of enactment for section 506) and to previously existing section 501(c)(4) organizations that had not yet either filed an application for recognition of exemption or an annual return. The required form is Form 8976, which can be submitted electronically here.

Lloyd Mayer

August 11, 2016 in Federal – Executive, Federal – Judicial, Federal – Legislative, In the News | Permalink | Comments (0)

Wednesday, August 10, 2016

Think Tanks and Their Donors, or How to Get Unbiased Public Policy Research

Think TanksThe NY Times is running a series of articles on the influence donors, particularly large corporations, appear to have over research conducted by some prominent think tanks. As its front page articles on August 8th and August 9th detail, many researchers associated with think tanks are paid consultants or lobbyists for corporate clients, and many think tanks also receive contributions directly from corporations that have an interest in the research the think tank is conducting. Some of the think tanks identified have either admitted to lapses in oversight or adopted more stringent conflict of interest and disclosure policies, but it is not clear how widespread such admissions or changes are within the think tank community.

While in theory reaching research conclusions that are helpful to donors or clients could constitute providing prohibited private benefit on the part of the think tanks, which are generally tax-exempt under Internal Revenue Code section 501(c)(3), the connections detailed in the articles seem too tenuous to support such a claim. This is especially true given both that proving a solid link between a donation and research results is difficult and that the think tanks identified generally engage in a broad range of research projects, only a small portion of which may be tainted by donor influence. Similarly, while some think tanks then arrange for meetings or conferences centering on their research and attended by government policy makers that might constitute lobbying for federal tax purposes, most such events likely fall outside of the technical definition of lobbying and the few that may not are almost certainly within the limited amount of lobbying permitted for tax-exempt charitable organizations such as think tanks.

Nevertheless, the stories are troubling because they throw into question the ability of government policymakers to rely on such research, as noted by Senator Elizabeth Warren in a video the NY Times posted with these stories. In its regular Room for the Debate feature, the NY Times therefore invited a number of commentators to suggest possible ways to address the concerns raised in its stories. Suggestions ranged from greater transparency about possible conflicts (including a certification process), better internal procedures to ensure unbiased research results, greater skepticism regarding those results on the part of journalists and others who report or rely on those results, and a diversification of funding sources (including ensuring various governmental funding sources) to support such research. I frankly am skeptical of transparency, certification, and internal procedure improvement if only because it may be too difficult for busy lawmakers, much less journalists and other members of the public, to shift through various disclosures or to determine what certification schemes or particular think tanks are reliable. I believe the diversification of funding sources idea has more promise, particularly if there are (nonpartisan) ways for government agencies to provide such funding conditioned on accurate, unbiased results. Bottom line, this strikes me as not a narrow federal tax issue but a larger issue about how to incentivize truth telling in public policy research.

Lloyd Mayer


August 10, 2016 in Federal – Executive, Federal – Legislative, In the News, State – Executive, State – Legislative | Permalink | Comments (0)

Friday, August 5, 2016

Critics Want Wealthy Schools to Stop Hording Endowments.

Twin Cities Pioneer Press reports that two private colleges alone in Minnesota have combined endowments of over $1.5 billion. This seems wonderful in a time where education budgets are on the chopping block. However, critics of the colleges and universities contend the institutions need to be less scrooge-like and spread the wealth to meet the financial needs of their students. “Private foundations with nonprofit status must spend five percent of their fund’s value each year under federal law.” But, this requirement does not apply to colleges and universities.

As of 2013, there were 138 educational institutions with over $500 million in endowment. A study of 67 private schools revealed that just over half of those schools did not meet the 5 percent mark required by other nonprofits. With an estimated 40 percent of college students receiving Pell grants, it is clear that there remains unmet financial needs for students.

An official from one of the colleges studied said “it’s unfair to expect colleges to spend their endowments at the same rate as charitable nonprofits. If a college’s endowment earns 7 percent but they spend 5 percent, it won’t grow fast enough to keep up with inflation.”

Time will tell if the Legislature will require colleges and universities to meet the five percent mark as their nonprofit peers must. With the rising cost of education, one can assume debate will arise sooner than later.

David Brennen

August 5, 2016 in Current Affairs, Federal – Legislative, In the News, State – Legislative | Permalink | Comments (0)

Thursday, August 4, 2016

D.C. Debating Property Tax Laws

A recent post on Non Profit Quarterly by Ruth McCambridge explains tensions between nonprofits in big cities (Such as D.C. in this article) and the legislature. In Washington D.C., nonprofits occupy over $10 billion worth of real estate, which could generate over $111 million per year in tax revenue. Instead, the district collects nothing from them.

Two universities in the district alone account for $48 million in uncollectable property tax revenue. The District is considering the idea of making a change requiring payments in PILOT form, but has been pondering this idea for nearly fifty years.

Undoubtedly, these institutions bring an immense amount of revenue to the District, through research, attracted talent, and general expenditures by students and faculty. However, it is not clear if these benefits outweigh the costs of not receiving property taxes.

It is estimated that currently 28 different states have municipalities that collect PILOT payments; however these payments amount to far less than what the property taxes would have been worth.

It will be interesting to see if the legislature changes the current set up. Between the federally owned tax-exempt buildings, and those occupied by nonprofits, the district is missing out on over one billion dollars of tax revenue.

David Brennen

August 4, 2016 in Current Affairs, Federal – Legislative, In the News, State – Legislative | Permalink | Comments (0)

Thursday, July 28, 2016

501(c)(3) Organizations & the Ban on "Intervening" with Political Campaigns

A recent post by Benjamin Leff on The Surly Subgroup highlights the 50+ year ban on 501(c)(3) organizations (here, specifically churches) “intervening” in a campaign for public office. Arguments for and against the ban range from an infringement of free speech, to churches using their power to distort the electoral process. However, the main issue discussed is that although churches want to get in to court to challenge the ban, they believe the IRS won’t let them. For a compelling read on how these organizations may be granted their “day in court” and some possible reform suggestions, read the above linked post.

David Brennen

July 28, 2016 in Current Affairs, Federal – Legislative, In the News, Weblogs | Permalink | Comments (0)

Thursday, June 23, 2016

For Purpose Law Group: Origins of Ban on Political Electioneering for 501(c)(3) Organizations

With the election season coming up (errr, well underway), the ban on 501(c)(3) tax-exempt organizations supporting or opposing a candidate for political office will no doubt be cited, critiqued, and misunderstood by countless pundits and nonprofits.  For Purpose Law Group has a blog post tracing its interesting history:

First, the total ban on political campaigning for 501(c)(3) charities was offered as a last-minute, “non-germane” amendment to the massive new Internal Revenue Code; and, second, Senator Johnson’s rationale was based on a significantly incorrect characterization of the 1934 lobbying restriction.

First, the total ban on political campaigning for 501(c)(3) charities was offered as a last-minute, “non-germane” amendment to the massive new Internal Revenue Code; and, second, Senator Johnson’s rationale was based on a significantly incorrect characterization of the 1934 lobbying restriction. - See more at: http://www.forpurposelaw.com/501c3-political-ban-history/#sthash.tO9YJwoL.dpuf

Read the rest here.


June 23, 2016 in Federal – Legislative | Permalink | Comments (0)

Monday, June 6, 2016

Senate Finance Scrutiny of Private Museums Continues

According to this Chronicle of Philanthropy article (citing arts newsletter Hyperallergic), Senate Finance Committee Chair is continuing his scrutiny of private museums, now by requesting clarification from the IRS regarding its stance on private museums.    You may recall that last fall, Senator Hatch sent a letter of inquiry to a number of private museums, requesting details regarding the museum's operation - fellow blogger Nickolas Mirkay detailed those letters here.   Hyperallergic indicated that one of Hatch's primary concerns was the public availability of collections  (including limited hours and advance reservations)  and the continuing role of donor of the art collection in the management of the museums.   Much of this scrutiny may stem from a series of New York Times articles regarding private museums, including here and here.

Inquiries of this type bother me somewhat.   It seems to me that current law regarding private benefit is probably sufficient to handle many of the perceived abuses (maybe it's an enforcement issue - just throwin' it out there).   The drumbeat of the articles and the Senate inquiry may lead to additional regulation - and I suspect they will use a mallet rather than a surgical instrument to deal with the issue, if history is any guide.



June 6, 2016 in Current Affairs, Federal – Executive, Federal – Legislative, In the News | Permalink | Comments (0)

Monday, May 2, 2016

Less Disclosure of Donors, More Disclosure of Applicants for Exemption?

Schedule BIn both Congress and the federal courts battles continue over disclosure of information relating to tax-exempt organizations. In California, a federal district judge ruled that California Attorney General Kamala Harris cannot force Koch brothers-related IRC section 501(c)(3) Americans for Prosperity Foundation (AFP) to provide a copy of the substantial donor list it files with the IRS (Schedule B to Form 990). While the decision was on an as-applied challenge and so only directly affects AFP, it was somewhat surprising given the earlier Ninth Circuit decision upholding the state disclosure requirement against a facial challenge. Whether the latest decision survives the almost certain appeal remains to be seen, however. Coverage: L.A. Times; Washington Post.

Not satisfied with the limited protected provided by this decision, Congress is now moving to eliminate the Schedule B entirely. H.R. 5053 cleared the House Ways and Means Committee late last week on a party-line vote, according to the Wall Street Journal (quoting LSU Professor Philip Hackney). The bill's fate is unclear, however, as it has already attracted public opposition from various outside groups, the N.Y. Times editorial board, and the Ranking (Democratic) Member of the Committee, according to the EO Tax Journal. It probably does not help its chances that the President for Government & Public Affairs at Koch Companies Public Sector, LLC publicly urged passage of the legislation.

UPDATE: Joint Committee on Taxation Description of H.R 5053; The Surly Subgroup Blog Post.

Finally, the Sixth Circuit recently moved the disclosure needle in the other direction with respect to applicants for recognition of exemption. In In re United States (United States v. NorCal Tea Party Patriots, et al.), the court resolved a discovery dispute by holding that the names, addresses, and taxpayer-identification numbers of applicants for tax-exempt status are not “return information” and so are not protected from discovery by IRC section 6103, even if their applications are pending, withdrawn, or denied. The only immediate effect of the decision is to allow the plaintiffs to identify possible class members in this class-action litigation arising out of the IRS Exempt Organizations Division selection of section 501(c)(4) applicants for additional scrutiny. But the larger ramification is that such information likely is now exposed to Freedom of Information Act requests that can be litigated in the Sixth Circuit, as section 6103 was the sole barrier to such requests. IRS Commissioner John Koskinen also suggested that some other types of IRS filings may also be exposed to public disclosure as a result of this decision. For those who may be interested in learning more about the ramifications of this case, I will be providing additional coverage in the "At Court" section of the ABA Tax Times' next issue. Additional coverage: Wall Street Journal.

Lloyd Mayer

May 2, 2016 in Federal – Executive, Federal – Legislative, In the News | Permalink | Comments (0)

Monday, April 11, 2016

Happy National Volunteer Week! Here's the grim legal side of altruistic labor

Happy National Volunteer Week!  We know that volunteering can do lots of good, but what about when volunteering goes bad?  Volunteer law is one of my primary scholarly interests, and in honor of the millions of Americans who volunteer each year, below are just a few of the ways that law CI_boardwalk_Sandy_sweepers_jehdeals with volunteering disasters.  (But don’t be deterred!  Volunteers live longer, happier lives, and these problems probably won’t happen to you or your organization.)

Volunteer Liability:  Who gets sued when a volunteer commits a tort?  The Federal Volunteer Protection Act provides a low level of immunity—with lots of exceptions and caveats—to volunteers for simple negligence. (Ask yourself whether regulation of unpaid labor fits within Congress’s power under the commerce clause.)  Some states also offer immunity of different flavors.  Iowa immunizes volunteers for almost anything they do within the scope of their employment.  Vermont immunizes volunteer librarians. (?!)  Ohio just enacted a law immunizing volunteer architects. (Why architects?  No idea.  Underworked lobbyists, possibly.)

Fortunately, volunteers are rarely sued, and most suits involve intentional torts or accidents while driving (covered by insurance). (So, please don't sue me.)

Organizational liability: Organizations are liable for the acts of their agents under common law master-servant principles.  This applies to employees and volunteers alike.  But volunteers often interact with organizations in less formal ways than employees, and not always as simple to determine scope of “employment.” Notably, immunity for the volunteer does NOT immunize the organization, making charities the prime defendant when suit is brought.  Which, again, is fortunately pretty rare, especially for your small, community-based charity.

Volunteer Discrimination:  Employers can’t discriminate against employees on race, sex, religion, disability, and other protected characteristics.  Sometimes, but not often, these laws also protect volunteers.  (In fact, there is a circuit split about whether unpaid workers are covered under federal employee anti-discrimination laws.)  Still, even if anti-discrimination isn’t the law, be nice to your volunteers.  It’s the right thing to do.

Volunteers and Minimum Wage:  One of the least settled areas of law involves application of minimum wage laws to volunteers.  Cases are all over the place on this, and challenges involving unpaid interns and student-athletes add layers of confusion to the tests for charitable volunteers.  Department of Labor has issued various informal “guidance” (read: no Chevron deference) on the topic of unpaid workers, but their positions are rejected by courts as often as they are upheld.  Nevertheless, it would be pretty weird if your organization violated minimum wage laws by allowing someone to volunteer for your charity.  (Not legal advice: just common sense.)  One caveat is that a paid employee of your nonprofit can’t “volunteer” for your organization performing the same type of services as would normally be paid to perform. (Note that the linked regulation only applies to government, but Department of Labor applies same rationale to nonprofits).

Much, much more could be said, which is why this is a fun area in which to write (not to mention volunteering as a rewarding personal pastime). Happy National Volunteer Week everyone! 


April 11, 2016 in Current Affairs, Federal – Executive, Federal – Legislative | Permalink | Comments (0)

Friday, March 4, 2016

Tax Committee Chairmen Ask Questions About College and University Endowments

HarvardLast month the Boston Globe reported that the chairman of both the Senate Finance Committee and the House Ways and Means Committee sent joint letters to 56 colleges and universities with endowments of $1 billion or more. The letter asked 13 sets of questions covering topics ranging from categories of assets to management costs to spending policies. While it is now a common practice for the congressional tax writing committees to investigate various types of tax-exempt organizations - see the recent Senate Finance scrutiny of private museums opened by individual collectors and the 2008 Senate Finance letter to colleges and universities about their financial practices - it is interesting and perhaps significant that this latest inquiry is a joint one by committee chairmen in both chambers (including also the chairman of the House Ways and Means Subcommittee on Oversight). The current set of inquiries come in the wake of endowments (mostly) recovering from the Great Recession, a Congressional Research Service report focusing on college and university endowments, and prominent calls for wealthy educational institutions to provide more need-based financial aid (for example, see the recent NY Times Op-Ed by Victor Fleischer (San Diego)).

Additional coverage: BloombergBusinessInside Higher Ed.

Lloyd Mayer

March 4, 2016 in Federal – Legislative | Permalink | Comments (0)

Wednesday, March 2, 2016

House Oversight Subcommittee Hearing on "Protecting the Free Exchange of Ideas on College Campuses"

Ways and MeansGeorgetown University recently invoked Internal Revenue Code section 501(c)(3) as the basis for its policy prohibiting students from engaging in any political campaign activity on campus (see this The Hoya article for more details). Today the House Ways and Means Oversight Subcommittee held a hearing focusing on that policy and its alleged basis in the federal tax laws. Among others, Professor Frances Hill (University of Miami) provided testimony on the issue of whether such activities by students would be attributed to the University under section 501(c)(3) and so cause the University to violate that section's prohibition on political campaign intervention. As she details, the IRS has a long-standing, public position that generally the the political activity of students is not attributed to their schools, indicating that Georgetown University is incorrect in its assertion that federal tax law compels its current policy. That said, as a private institution the University is free to limit or even prohibit political activity on its property as long as it does so in a manner that does not favor a particular candidate or political party.

Hat tip: EO Tax Journal.

Lloyd Mayer

March 2, 2016 in Federal – Legislative | Permalink | Comments (0)

Wednesday, February 3, 2016

Archer: Combating Public Charity Fraud with Sarbanes Oxley

John George Archer (Law Student, Mississippi) has posted "This SOX: Combating Public Charity Fraud with Sarbanes-Oxley" to SSRN:

In the wake of the corporate scandals of the Enron era, Congress delivered the Sarbanes-Oxley Act (SOX) to bolster confidence in our nation’s financial system. To save the system and protect the investing public from corporate abusers, Congress created a capable “toolkit” within SOX to fight fraud and enhance disclosure. Sarbanes-Oxley has been effective in stemming the tide of corporate malfeasance. Currently, only for-profit, publicly traded companies are subject to SOX. But corporate fraud does not stop at the door of the nonprofit world. Fraud within nonprofit corporations is a widespread problem, and nonprofits – particularly large public charities – share many similarities (the good and the bad) with their for-profit cousins. By drawing a parallel comparison between large public charities and publicly traded companies, this Article makes the case that the strong governance principles encapsulated by Sarbanes-Oxley should also be imposed on large public charities.

While others have either argued against applying SOX to nonprofits or have cautiously advocated this approach because of the diverse and varying missions of nonprofits, this article particularly singles out large public charities and demonstrates that SOX is an ideal regulator for this group. While state governments and the IRS both engage in nonprofit regulation, the current regime suffers from a lack of resources and enforcement measures to be truly effective. This is where SOX can help. So much of what Sarbanes-Oxley accomplishes is self-reporting and a governance structure that promotes independence and transparency. Because of this, Sarbanes-Oxley is considered best practices for large entities, and is voluntarily followed by many public charities.

Extending SOX would not be as large a leap as previously imagined. The parallel to large public charities is this: there is a disconnect between the stakeholders of a nonprofit and its directors and management. Within this gap lies the great potential for abuse and fraud. The economic impact of the nonprofit sector upon the American economy is no small thing, much less its social impact. To protect this vulnerable system and combat nonprofit abuse, this Article contends that Congress should take notice of the problem and address it using the same “toolkit” it already created when it addressed fraud among publicly traded companies.

Nicholas Mirkay

February 3, 2016 in Federal – Legislative, Publications – Articles | Permalink | Comments (0)

Wednesday, December 2, 2015

Senate Finance Committee Questions Public Benefit of Private Art Museums

As reported by The New York Times, the Senate Finance Committee sent letters to eleven private museums created and operated by opened by private collectors, focusing on whether sufficient public benefit is present to justify such museums' federal tax-exempt status.  These letters were sent by chairman Senator Orrin Hatch (Utah) to galleries such as the Brant Foundation Art Study Center in Greenwich, Connecticut, Glenstone museum in Potomac, Maryland, the Rubell Family Collection in Miami, the Kreeger Museum in Washington, DC, and The Broad in Los Angeles, requesting additional information about visiting hours, donations, trustees, and valuations.  Senator Hatch commented that:  “Tax-exempt museums should focus on providing a public good and not the art of skirting around the tax code. While more information is needed to ensure compliance with the tax code, one thing is clear: Under the law, these organizations have a duty to promote the public interest, not those of well-off benefactors, plain and simple.”  The Senator's letter acknowledged the important role that charitable organizations play in our society, but questioned whether "some private foundations are operating museums that offer minimal benefit to the public while enabling donors to reap substantial tax advantages."

The New York Times article opined that the Hatch letters were sent after another of its articles published in January 2015 "examined the proliferation of tax-exempt private museums created by wealthy art collectors, sometimes in their own backyards.  Some of the galleries severely limit public access, closing their doors to outsiders for several months at a time, shunning signs and advertisements, and requiring visitors to make advance reservations."  According to the article, this inquiry was part of a broader effort to re-examine institutions, including private museums and universities, which have enjoyed tax-exempt status for many decades.

Nicholas Mirkay


December 2, 2015 in Federal – Legislative, In the News | Permalink | Comments (0)

Friday, September 18, 2015

8th Circuit Rules ACA Opt-Out Provision May Violate RFRA

As reported (slightly imprecisely from my legal perspective) in Reuters, the United States Court of Appeals for the 8th Circuit, parting ways with other appellate courts deciding the issue, has issued two rulings lending support to the position that the Affordable Care Act (“ACA”) violates the rights of religiously affiliated employers by forcing them to take action that they sincerely believe would constitute complicity in the provision of contraceptive coverage, including abortifacients.  The cases are Dordt College v. Burwell and Sharpe Holdings, Inc. v. United States Department of Health and Human Services.  This post will highlight language from Sharpe Holdings.


As many readers are aware, regulations under the ACA require nonexempt employers to provide their employees with insurance coverage for FDA-approved contraception, which, as the United States Supreme Court has recognized, includes drugs that may prevent a fertilized egg from attaching to the uterus.  The same regulations permit certain religious organizations that object to providing such coverage to opt out of the coverage by filing a form with their third party administrators or by notifying the Department of Health and Human Services of their objection. In Sharpe Holdings, the plaintiffs argued that “both the contraceptive mandate and the accommodation process impose a substantial burden on their exercise of religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA).”  More precisely, the plaintiffs ”contend that the government is coercing them to violate their religious beliefs by threatening to impose severe monetary penalties unless they either directly provide coverage for objectionable contraceptives through their group health plans or indirectly provide, trigger, and facilitate that objectionable coverage through the Form 700/HHS Notice accommodation process.”  Accordingly, they petitioned the district court to “enjoin enforcement of the contraceptive mandate and the accommodation regulations against them.” The district court granted the requested injunctive relief.


The United States Court of Appeals for the 8th Circuit in Sharpe Holdings affirmed the district court’s order granting injunctive relief.   The appellate court concluded that the district court “did not abuse its discretion in finding that [two nonprofits] were substantially likely to succeed on the merits of their claim that the contraceptive mandate and the accommodation process substantially burden their exercise of religion in violation of RFRA and that the current accommodation process is not the least restrictive means of furthering the government’s interests.”


In accepting the plaintiffs’ argument that the ACA regulations substantially burdened their exercise of religion, the court relied heavily on the Supreme Court’s Hobby Lobby decision:


As Hobby Lobby instructs, however, we must accept CNS and HCC’s assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs. See Hobby Lobby, 134 S. Ct. at 2778; see also Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”). It is not our role to second-guess CNS and HCC’s honest assessment of a “difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Hobby Lobby, 134 S. Ct. at 2778. As discussed above, Form 700 or HHS Notice will inform CNS and HCC’s TPA of its obligations to facilitate contraceptive coverage for CNS and HCC’s employees and plan beneficiaries and thus will play a part in providing the objectionable contraceptives. As in Hobby Lobby, CNS and HCC sincerely believe that the actions “demanded by the . . . regulations [are] connected to” illicit conduct “in a way that is sufficient to make it immoral for them to” take those actions. Id. CNS and HCC have drawn a line between actions they find “to be consistent with [their] religious beliefs” and actions they consider “morally objectionable.” Id. (citing Thomas, 450 U.S. at 715). And it is not for us “‘to say that the line [they] drew was an unreasonable one.’” Id. (quoting Thomas, 450 U.S. at 715); see also Priests for Life, slip op. at 12 (Kavanaugh, J., dissenting from denial of rehearing en banc) (“Judicially second-guessing the correctness or reasonableness (as opposed to the sincerity) of plaintiffs’ religious beliefs is exactly what the Supreme Court in Hobby Lobby told us not to do.”).


In holding against the government on whether the ACA regulations are the least restrictive means for furthering a compelling government interest, the 8th Circuit emphasized the government’s burden of proof on the issue, and found that it “has not shown that these [several possible] alternatives [discussed in the opinion] are infeasible.”



September 18, 2015 in Church and State, Federal – Legislative | Permalink | Comments (0)

Thursday, September 17, 2015

GAO Report on American Red Cross Released; Federal Legislation Proposed

NPR reports that the “American Red Cross is facing new criticism today as government investigators and a congressman call for independent oversight over the long-venerated charity.”  NPR explains that Representative Bennie Thompson has introduced a bill called the American Red Cross Sunshine Act on the heels of the release of a report by the United States Government Accountability Office (“GAO”) that examined the charity’s operations.  The GAO report, says NPR, “finds oversight of the charity lacking and recommends that Congress find a way to fill the gap.”


The “Conclusions” section of the GAO report states as follows:


The nation’s disaster response system relies to a significant extent on the nonprofit sector, which harnesses the public’s generosity to provide funding for disaster response and recovery efforts. This approach can support the nation’s efforts to assist disaster victims, but it also has limited accountability for disaster assistance. The Red Cross, the organization most responsible for providing shelter and other mass care services to disaster victims, exemplifies this tension. It has been designated by law as an instrumentality of the United States and has a critical, formalized role in coordinating and providing disaster response services across the nation. At the same time it remains a nonprofit organization that generally makes its own decisions about what services to provide. This reliance on an independent organization can be effective if government and the donating public have confidence that [the] Red Cross is providing the services that are most needed in an effective and efficient manner. Further, in disasters in which the federal government is involved, the extent and effectiveness of the Red Cross’s activities could have a direct impact on the nature and scope of the federal government’s activities.


With regard to oversight, while the Red Cross has some internal evaluation processes in place, such as after action reviews and surveys of state emergency managers and other stakeholders, Red Cross officials told us that the results of their internal evaluations are typically not made available to the general public. The absence of regular, external evaluations of its disaster services that are publicly disseminated could affect the confidence of both the donating public and the federal agencies that rely on the Red Cross. This is especially true in light of questions raised by the federal government and others in recent years about the organization’s performance in disasters. Given the Red Cross’s status as an instrumentality of the United States and the critical responsibilities assigned to it by its federal charter and by federal policies, the federal government has a clear stake and role in ensuring that proper oversight takes place.


In a section entitled “Matters for Congressional Consideration,” the GAO report further recommends legislative action:


To maintain governmental and public confidence in the Red Cross, Congress should consider establishing a federal mechanism for conducting regular, external, independent, and publicly disseminated evaluations of the Red Cross’s disaster assistance services in domestic disasters in which the federal government provides leadership or support. This mechanism might involve annual evaluations of whether the services achieved their objectives or of their impact on disaster victims. This evaluation could be performed, for example, by a federal agency such as DHS, by an IG office such as the DHS IG, or by a private research firm under contract to a federal agency.


The American Red Cross Sunshine Act, according to its preface, would “enhance oversight of the American National Red Cross by the Government Accountability Office and Inspectors General at the Departments of Homeland Security, Treasury, and State,” and would require the Department of Homeland Security to conduct a pilot program with the charity to research and develop mechanisms to improve the charity’s preparedness and response capabilities through social media.


Additional Coverage: The Chronicle of Philanthropy




September 17, 2015 in Current Affairs, Federal – Executive, Federal – Legislative | Permalink | Comments (0)

Thursday, August 13, 2015

Tax-Exempt Status of Religious Universities & Institutions after Same-Sex Marriage Ruling

The Supreme Court ruling on same-sex marriage has yielded a lot of commentary regarding its potential effect on tax-exempt, religious organizations, including religiously-affiliated educational organizations.  The Washington Post article referenced below sets forth the IRS Commissioner's commitment to not change its stance and begin revoking the exemption of religiously-affiliated educational institutions that oppose the ruling.  The second set of blog posts looks at the issue more broadly, generally making the argument that opposition from such educational and other religious institutions results in "vibrant" and essential pluralism.

Washington Post, "IRS Commissioner Promises to Not to Revoke Tax-Exempt Status of Colleges that Oppose Gay Marriage":

After the Supreme Court’s decision on gay marriage, religious leaders feared that religious universities, nonprofits and other institutions could lose their tax-exempt status. IRS Commissioner John Koskinen has promised the Senate Judiciary Oversight Subcommittee that his agency would not go after the tax-exempt status of religious colleges and universities that oppose gay marriage.

During a hearing Wednesday conducted by the Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, Sen. Mike Lee (R-Utah) asked Koskinen whether the IRS would “not, in the absence of a directive by Congress or by the courts," take action to remove religious schools’ tax exemption.

“I can make that commitment,” Koskinen said, explaining that “we see no basis for changing our examination criteria as a result of this Supreme Court case.”

Koskinen discussed the potential for such schools’ tax exemption to go under scrutiny down the road. “If we ever did that, we would issue it for public comment. There would be no surprises,” Koskinen said. “The public would have plenty of notice and plenty of opportunity to comment, and that’s not going to happen in the next two and a half years.”  [emphasis added]

[Hat tip:  TaxProfBlog]  [see also Philanthropy News Digest; The Hill]


PrawfsBlog, "Garnett et al. on Tax-Exempt Status and Religious (and Other) Organizations" by Paul Horwitz (Alabama)::

Should government insist that all private organizations comply with its own sense of the good? Most people, I think, still agree that the answer to this question is no. However strongly they feel that those public values are the right values, and however devoutly they may hope that all people and all groups come to share them and to act accordingly, they still believe for various reasons--not least a sense that the public-private distinction, however imperfect and vulnerable to critique, represents an important value of its own--that government should not and perhaps cannot rigorously or ruthlessly enforce what Nancy Rosenblum has called a "logic of congruence" between public and private organizations. ...

Our friend and fellow Prawfs writer Rick Garnett discusses that question in a new editorial co-written with John Inazu and Michael McConnell [see below]. The title, which I gather its writers did not choose and might not be completely comfortable with, is "How to Protect Endangered Religious Groups You Admire." They argue, in brief, that we should, at a minimum, be willing to protect religious non-profits that provide significant contributions to the public good despite their now heterodox views.

Read the whole thing. Feel free to disagree. I will add two points. I agree, in sensibility at least, with a point made by Marc DeGirolami in a recent post about the editorial: "We use the language of 'exemption' when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax." Reasonable disagreement is available about whether "power" is an apt word here, but for those who believe that whatever the extent of state power, it ought not lightly be exercised in a way that circumscribes civil society and a vibrant pluralism, the sensibility is right. Second, it ought not be only pluralists, and certainly not only social conservatives, who support these arguments. This is an argument that liberals ought to be taking seriously now, especially as progressive thought continues to drift in a more illiberal direction.

Christianity Today op-ed:  How to Protect Endangered Religious Groups You Admire, by  Richard W. Garnett (Notre Dame), John D. Inazu (Washington University) & Michael W. McConnell (Stanford):

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court's recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Nonetheless, because of their traditional views on human sexuality, religious organizations have already been threatened with heavy-handed government action. ...

[W]ithin days of the Court’s decision in Obergefell, New York Times columnist Mark Oppenheimer wrote that the government should eliminate tax-exempt status from “organizations that dissent from settled public policy on matters of race or sexuality.”

Mr. Oppenheimer failed to acknowledge that in a pluralistic and democratic society, government routinely recognizes the tax-exempt status of organizations that differ from “settled public policy.” For example, not that long ago, the Human Rights Campaign was tax-exempt when it differed from settled policy on matters of sexuality; the same is true of organizations, like the Sierra Club, who push for changes in environmental regulation, or anti-war groups, who oppose US military policy. One of the principal purposes of civil society organizations is to challenge “settled public policy.”

Moreover, the majority opinion in the 5-4 decision in Obergefell earlier this summer made clear that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” ...

Some members of Congress have now introduced the First Amendment Defense Act (FADA) in an effort to ensure that overheated rhetoric and political opportunism do not endanger the important work of faith-based organizations. The core of FADA would require the federal government to honor its longstanding commitments to treat all such organizations with an even hand. It would prevent federal officials from attempting to strip tax-exempt status, from denying equal access to federal facilities and entitlements, or from taking adverse actions related to licensing or accreditation. ... We think the best approach is to tailor FADA to the core area of concern: religious nonprofits. That focus would serve the cause of religious freedom by making it more likely that this important legislation can move forward.

[Hat tip:  TaxProfBlog]


Nicholas Mirkay

August 13, 2015 in Federal – Executive, Federal – Legislative, In the News | Permalink | Comments (0)

Friday, July 24, 2015

More on Political Activity Referrals and Political Activity Regulations

As previously blogged, the GAO Report to Congress (the full report is here) on the IRS processes for political activity referrals found significant deficiencies with respect to the initial allegations that triggered an audit.  In some cases, no case files were found by the GAO.  These deficiencies "increase the risk that EO could select exempt organizations for examination in an unfair manner - for example, based on an organization's religious, educational, political or other views."  According to Bloomberg BNA, in the hearing before the Ways and Means Oversight Committee in which the GAO report was released, it was determined that for the past six years, "one person working alone at the IRS has been deciding which complaints about the political activities of exempt organizations should be followed up."

Following the above-referenced hearing, IRS Commissioner John Koskinen reported to Bloomberg BNA that final regulations on political campaign activities by exempt organizations will not be in place prior to the 2016 presidential election (see proposed regulations here).  The regulations will likely not be effective until January 2017.  See prior blog posts on the proposed regulations and political activity regulations generally (April 16, 2014; July 16, 2015).

Nicholas Mirkay

July 24, 2015 in Federal – Executive, Federal – Legislative, In the News | Permalink | Comments (0)

Monday, July 20, 2015

First Amendment Defense Act Would Protect Tax-Exempt Organizations

As reported by The New York Times, Representative Raúl R. Labrador, Republican of Idaho, and Senator Mike Lee, Republican of Utah, along with 130 sponsors, have proposed legislation, the First Amendment Defense Act, that would confer protections for tax-exempt organizations and individuals that object to the Supreme Court's recent gay-marriage ruling on religious or moral grounds.  The Act specifically provides that the Federal government cannot take any "discriminatory action" against a person, "wholly or partially on the basis that such person believes in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage."  The Act defines a "discriminatory action" to include (i) an action by the Federal government to "alter in any way the Federal tax treatment of, or cause any tax, penalty or payment to be assessed against, or deny, delay, or revoke an exemption from taxation under Section 501(a) of the Internal Revenue Code of 1986 of, any person" referred to above, or (ii) "disallow a deduction for Federal tax purposes of any charitable contribution to or by such person."  The Act states that it should be broadly interpreted in favor of a 'broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent permitted" by the Act and the U.S. Constitution.

The Times reports that a bill proposed by "moderates" would attached two pro-gay rights provisions:  (i) the Employment Non-Discrimination Act, making illegal workplace discrimination based on sexual orientation, and (ii) an amendment to the Fair Housing Act to include protections on the basis of sexual orientation and gender identity.

The Act, if passed in its present form, would ostensibly address the concerns of churches and other religiously-affiliated organizations that their tax-exempt status could be revoked for discrimination in membership or employment or otherwise on the basis of sexual orientation, even if such organizations' actions are based on their core religious tenets.  (See prior blog post here discussing these concerns).

Nicholas Mirkay

July 20, 2015 in Current Affairs, Federal – Legislative | Permalink | Comments (0)