Changes in Campaign Finance Regulations for §527 Nonprofits Monday, Sep 21 2009

The US Court of Appeals, D.C. Circuit, recently made a significant ruling regarding § 527 organizations – those nonprofits existing primarily to influence the election or defeat of candidates for federal public office.  In the case of Emily’s List v. Federal Election Commission (FEC), decided September 18, 2009, the court majority wrote a 44 page opinion striking down recent (2004) FEC campaign spending limitations applied to these groups.

After the 2004 elections there was significant pressure on the FEC to reform the campaign spending of certain nonprofit groups who had reportedly spent several hundred million dollars in election-related advertising and programming.  There was a push to place restrictions on these groups similar to those on political parties.

This case dealt largely with the difference between hard and soft money.  A § 527 organization must keep two separate accounts.  Contributions in direct support of candidates and political parties is termed “hard money”, and such contributions may consist of no more than $5,000 from any one donor in any given year.  “Soft money” may not be contributed directly but may go towards political expenditures the form of cause or candidate supporting efforts such as advertising, get-out-the-vote campaigns, etc.; a donor may give as much as desired for such support.  Until this past Friday, FEC regulations restricted nonprofits in their activities by requiring that 50% (sometimes more) of certain expenditures come from the hard money account, rather than from the soft money account.  Since hard money is more difficult to accumulate than soft, the activities of these organizations were being inhibited.

The court in Emily’s List traced a history lesson, examining the evolving campaign finance laws as apposed to the freedoms provided under the First Amendment.  The Circuit court noted that the Supreme Court has generally approved statutory limitations on contributions to candidates and political parties – including contributions made by for-profit corporations.  On the other hand it has rejected expenditure limits on individuals, groups, candidates, and parties.

The Emily’s List court, while affirming that an organization’s direct contributions to candidates and parties may be limited, further ruled that such contributions should not prevent the organization from also engaging in supporting expenditures.  The court said, “A non-profit that makes expenditures to support federal candidates does not suddenly forfeit its First Amendment rights when it decides also to make direct contributions to parties or candidates.”  The organization in question – Emily’s List – is a pro-choice organization that makes supporting expenditures as well as direct contributions in furtherance of its causes and endorsed candidates.

The court ultimately boiled the issue down to whether these independent nonprofit organizations should be treated like individual citizens (which are entitled to expend unlimited amounts to express their views through supporting expenditures), or like political parties (which may be restricted).

Through lengthy discourse the court explained that § 527 organizations like Emily’s List, being neither for-profit nor closely connected with a particular candidate or political party, do not represent a situation ripe for corruption, which was the situation of concern behind campaign finance restrictions in the first place.  The court said, “Donations to and spending by a non-profit cannot corrupt a candidate or officeholder, at least in the absence of some [evidence] establishing such corruption or the appearance thereof.”  The court concluded that these organizations should be treated as individuals for political expenditures purposes, and therefore are entitled to have 100% of such expenditures come from their soft money accounts – the accounts that do not limit donations by individuals.

While § 527 organizations should be aware of the new rules, it remains to be seen whether this ruling will hold fast.

The full text of this case can be found at http://pacer.cadc.uscourts.gov/common/opinions/200909/08-5422-1206889.pdf.

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Pulpit Freedom: Right or Privilege? Saturday, Jul 25 2009

Last week Tax Analysts reported that Alliance Defense Fund (ADF) intends to continue pushing “Pulpit Freedom Sunday” each year until the IRS is provoked to action.  Its debut last September involved 32 pastors speaking out boldly expressing their views on candidates and issues related to the election the following November.

Since the Johnson Amendment of 1954 (brought by Senator Lyndon B. Johnson), tax exempt organizations, including churches, have been prohibited from endorsing or opposing political candidates for public office.  Although this prohibition includes sermons, since its implementation, ADF reports that no pastors have been punished for violating it, nor have any churches lost tax exemption.

But the ADF maintains that the law encroaches upon the 1^st Amendment right to freedom of speech, and even though no action has been taken under the restriction, it has silenced many churches that would otherwise be vocal.  Furthermore, ADF attorney Erik Stanley says that the current law is unclear, making it difficult for pastors – even lawyers – to know how to interpret its restrictions.  The “Pulpit Initiative” is intended to push the constitutional issue and bring clarity.  This year the ADF is calling for two courses of action.  To challenge the constitutionality of the Johnson Amendment, pastors are challenged to speak for and against candidates running for public office.  But to also educate more pastors of their rights, ADF is encouraging them to boldly speak their views of incumbent politicians, something permitted under current law.

A foundational question at issue is whether a church’s tax exemption is a privilege or a right.

Most people consider a “right” to be something inherent – and consequently very difficult to take away.  But what aspect of a church would make its right to tax exemption inherent?  Some point to the long history of such exemptions, but others would attribute the right to the role that churches fulfill.  Historically, much of the work done by churches has been viewed as the kind that which would naturally fall upon the government in the absense of the churches, such as performing acts of benevolence for the needy or attending to the “mental health” of their congregations.  Consequently, under this theory, the government exempts churches from taxes to encourage this necessary work.  In that sense the churches might loosely be considered to be distant arms of the government, using government funds to accomplish government work.  If the church becomes involved in partisan activities – work that is not nor should be performed by the government, those activities would not be exempted from taxation because they do not fulfill any charitable role of the government.

In any case, the Supreme Court has declared that tax exemption is not an inherent right.  In the 1970 case of Walz v. Tax Commission of the City of New York, the Court in a 5-4 decision preserving property tax exemption for a church said that the exemption was “permissible, but not constitutionally required.”  Going a step further in 1972, the Court of Christian Echoes National Ministry, Inc. v. U.S. said, “tax exemption is a privilege, a matter of grace rather than a right.”  But a bigger shift came in the 1983 case of Regan v. Taxation with Representation when the Court compared the exemption to a “tax subsidy.”

If exemption is indeed seen as a privilege or a subsidy, the church is getting some benefit beyond what is due them inherently and should not be surprised to see guidelines prescribing behavior.  Already existing examples include the prohibition against private inurement and unreasonable compensation, as well as the administrative burdens of tracking unrelated business income or monitoring international grants closely.  For various rationales, all these conditions come along as a result of the tax benefit provided.

But in a public debate on the Johnson Amendment this past May, Professor Douglas Laycock from the University of Michigan Law School argued the existence of “unconstitutional conditions” – that there are certain rights that cannot be withheld in exchange for government benefits.  Without this protection great abuse would result.  As an example that this doctrine is weakening, ADF’s chief counsel Ben Bull pointed out that ADF is currently defending a church that refused to perform a civil union for a lesbian couple, and its exemption is now threatened because the IRS claims they are no longer operating in the “public interest.”

So perhaps the greater fear is not the loss of the right to endorse a candidate, but that the pendulum is not done swinging and the conditions for tax exemption grow more invasive.  ADF is currently defending in several cases where, in their own words, “publicly preaching words straight from the Gospel has led to censorship…and even jail.”  Regardless of the uncertain outcome of those cases, the enacted Johnson Amendment already bans pastors around election times from speaking on moral issues that are fair game during non-election season – even though they mention no candidates by name.  If a pastor’s sermon could be construed as an endorsement, it’s off limits. The vagueness of the standard alone leaves a lot of room for the pendulum to continue swinging.

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Pulpit Freedom: Right or Privilege? Saturday, Jul 25 2009

Last week Tax Analysts reported that Alliance Defense Fund (ADF) intends to continue pushing “Pulpit Freedom Sunday” each year until the IRS is provoked to action.  Its debut last September involved 32 pastors speaking out boldly expressing their views on candidates and issues related to the election the following November.

Since the Johnson Amendment of 1954 (brought by Senator Lyndon B. Johnson), tax exempt organizations, including churches, have been prohibited from endorsing or opposing political candidates for public office.  Although this prohibition includes sermons, since its implementation, ADF reports that no pastors have been punished for violating it, nor have any churches lost tax exemption.

But the ADF maintains that the law encroaches upon the 1st Amendment right to freedom of speech, and even though no action has been taken under the restriction, it has silenced many churches that would otherwise be vocal.  Furthermore, ADF attorney Erik Stanley says that the current law is unclear, making it difficult for pastors – even lawyers – to know how to interpret its restrictions.  The “Pulpit Initiative” is intended to push the constitutional issue and bring clarity. This year the ADF is calling for two courses of action.  To challenge the constitutionality of the Johnson Amendment, pastors are challenged to speak for and against candidates running for public office.  But to also educate more pastors of their rights, ADF is encouraging them to boldly speak their views of incumbent politicians, something permitted under current law.

A foundational question at issue is whether a church’s tax exemption is a privilege or a right.

Most people consider a “right” to be something inherent – and consequently very difficult to take away.  But what aspect of a church would make its right to tax exemption inherent?  Some point to the long history of such exemptions, but others would attribute the right to the role that churches fulfill.  Historically, much of the work done by churches has been viewed as the kind that which would naturally fall upon the government in the absense of the churches, such as performing acts of benevolence for the needy or attending to the “mental health” of their congregations. Consequently, under this theory, the government exempts churches from taxes to encourage this necessary work.  In that sense the churches might loosely be considered to be distant arms of the government, using government funds to accomplish government work. If the church becomes involved in partisan activities – work that is not nor should be performed by the government, those activities would not be exempted from taxation because they do not fulfill any charitable role of the government.

In any case, the Supreme Court has declared that tax exemption is not an inherent right.  In the 1970 case of Walz v. Tax Commission of the City of New York, the Court in a 5-4 decision preserving property tax exemption for a church said that the exemption was “permissible, but not constitutionally required.”  Going a step further in 1972, the Court of Christian Echoes National Ministry, Inc. v. U.S. said, “tax exemption is a privilege, a matter of grace rather than a right.”  But a bigger shift came in the 1983 case of Regan v. Taxation with Representation when the Court compared the exemption to a “tax subsidy.”

If exemption is indeed seen as a privilege or a subsidy, the church is getting some benefit beyond what is due them inherently and should not be surprised to see guidelines prescribing behavior.  Already existing examples include the prohibition against private inurement and unreasonable compensation, as well as the administrative burdens of tracking unrelated business income or monitoring international grants closely. For various rationales, all these conditions come along as a result of the tax benefit provided.

But in a public debate on the Johnson Amendment this past May, Professor Douglas Laycock from the University of Michigan Law School argued the existence of “unconstitutional conditions” – that there are certain rights that cannot be withheld in exchange for government benefits. Without this protection great abuse would result. As an example that this doctrine is weakening, ADF’s chief counsel Ben Bull pointed out that ADF is currently defending a church that refused to perform a civil union for a lesbian couple, and its exemption is now threatened because the IRS claims they are no longer operating in the “public interest.”

So perhaps the greater fear is not the loss of the right to endorse a candidate, but that the pendulum is not done swinging and the conditions for tax exemption grow more invasive.  ADF is currently defending in several cases where, in their own words, “publicly preaching words straight from the Gospel has led to censorship…and even jail.” Regardless of the uncertain outcome of those cases, the enacted Johnson Amendment already bans pastors around election times from speaking on moral issues that are fair game during non-election season – even though they mention no candidates by name.  If a pastor’s sermon could be construed as an endorsement, it’s off limits. The vagueness of the standard alone leaves a lot of room for the pendulum to continue swinging.

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