Friday, October 30, 2020
Blurring the lines between the political and nonpolitical spheres
With the presidential election less than a week away, politics is never far from anyone’s mind: that would seem to include organizations that, strictly speaking, are expected to avoid the political arena. The Falkirk Center, a subsidiary think tank of conservative private nonprofit Liberty University, recently featured an advertisement showing President Trump amid a closely-gathered group of people in the Oval Office, heads bowed in prayer. Alongside the picture appears text quoting Scripture and the phrase “Pray for our President.”
The Falkirk Center is organized under Liberty University’s 501(c)(3) charter granting the group tax exemption: language used by the IRS unambiguously forbids such organizations from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” To violate the IRS’ rule is a risky proposition for any tax-exempt organization, as its puts their tax exemption at risk: on the whole, however, it appears that the Falkirk Center’s advertisements fall on the right side of the tax code’s bright red line. An Inside Higher Ed piece reporting on the potential tax implications of the advertisements pointed to a statement by a Liberty spokesman stating that the Bible calls for believers to pray for kings and authority figures in order to secure peace for all, regardless of which political party that leader hails from. “[Expert] consensus,” says the article, “was that the ads push the envelope but probably don’t cross into being ‘functionally equivalent to express advocacy,’ which would make them electioneering and out of bounds for a 501(c)(3).” While Liberty University’s advertising practices may be safe from the IRS’ wrath, it has drawn sharp criticism from a number of academics and other nonprofits: to assess these viewpoints, see the Inside Higher Ed article analyzing the advertisement here.
David Brennen, Professor at the University of Kentucky College of Law