Legal Commentary

It was proposed, in an earlier post ("Charities and Politics:  A Phillipic"), that "calls for loosening the Tax Code's restrictions on political activities by charities" are "all wrong."  (See, for some background, this Washington Post article on the Alliance Defense Fund's "Pulpit Initiative".)  I wrote a short piece, a few years ago, about the whole tax-laws-and-political-expression-by-churches thing.  It's here.  A few thoughts, though, in response . . . .

First, I wonder if it's really true, all things considered, that the proposed calls for change would really contribute to the problem that "[d]eductibility magnifies the power of rich contributors, who are already over-represented in the political process"?  A rival story (one that, for example, could be told about the civil-rights movement) might be that some "charities" -- specifically, churches -- have long served as vehicles and locations for less well-off people's political expression, activism, and education.  So, could a tax change that has the effect of allowing these "charities" to play this role free from the threat of losing their tax-law benefits actually empower those who are, at present, under-represented in the political process?)

Second, I think the "money corrupts" fear might be misplaced here.  Obviously, if we think "there is a big infusion of cash or other rewards in store for charities that support the party line" then, well, we should worry.  In order to evaluate the desirability of what's actually being proposed, though, I think we need to assume that the limits on political activity will be lifted in a non-partisan, ideologically neutral(ish) way.

Third, we might think -- at least with respect to churches -- that the question is not so much, "do we want to subsidize political activity by churches and, by extension, by those who contribute to them," but rather, "given that churches are, as -- among other things -- charities worth subsidizing, should we require them, as a condition for being treated like other charities, to refrain from doing something that, in their view, might be at the heart of their mission?"

Now, I should say that I'm not sure, at the end of the day, that the laws and regulations we're talking about should be changed.  I do worry though -- at least with respect to churches -- about the religious-freedom and church-state implications of a legal regime that involves reviewing sermons and homilies for their content.

For a still-circulating new paper -- "The Pulpit, Politics, and Institutional Free Exercise" -- by a colleague of mine, Lloyd Mayer, that goes through the relevant First Amendment and RFRA issues in detail, go here.)