Mayer, Lloyd H., Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U. L. Rev. 1137 (2009), available at SSRN.

Although the next Presidential election is still a couple of years off, one controversy that is sure to return to center stage is the prohibition in section 501(c)(3) that  bans 501(c)(3) organizations from intervening in a political campaign for or against a candidate for public office.  The Alliance Defense Fund has set up a “pastor initiative” to create a test case regarding a religious leader’s right to endorse a candidate from the pulpit.  I, and others, have participated in a series of debates regarding this issue, and I have argued that the campaign ban is constitutional.  In preparing for one of the debates, I read Lloyd Mayer’s article, Politics and the Pulpit:  Tax Benefits, Substantial Burdens, and Institutional Free Exercise. Professor Mayer’s article puts a new twist on an old issue, and provides a pathway for the Supreme Court to follow when it confronts the issue.  I hope Mayer’s article is cited in the minority opinion, but the article is an important contribution for people thinking about campaign intervention and section 501(c)(3) organizations.

As a brief introduction, proponents of the campaign ban argue that it is constitutional for Congress to condition tax-exempt status on a set of restrictions that ensure that organizations are acting consistently with the purpose of the exemption.  In this context, Congress has determined that organizations that receive a subsidy from the government in the form of tax exemption should not be involved in endorsing candidates. (See Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983), upholding the limitation on lobbying contained in 501(c)(3)). In a sense, such actions are deemed by Congress to be not charitable.  (See Bob Jones University v. United States, 461 U.S. 574 (1983), denying tax-exempt status to Bob Jones University because it discriminated based on race and determined that such discrimination prevented an organization from being charitable).  Religious leaders have a right to endorse candidates, work for candidates, and run for office.  They simply cannot do so on behalf of 501(c)(3) organizations. Continue reading "Politics at the Pulpit"

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