April 27, 2012
Rethinking § 501(c)(3)'s Prohibition on Politicking
Jennifer Rigterink (J.D. 2012, Tulane), Comment, I'll Believe It When I "C" It: Rethinking Section 501(c)(3)'s Prohibition on Politicking, 86 Tul. L. Rev. 493 (2011):
The U.S. Supreme Court's decision in Citizens United v. FEC challenged fundamental notions of free speech jurisprudence. While many commentators have focused on the decision's implications for corporate speech, this Comment examines whether the new First Amendment paradigm announced in Citizens United will challenge current speech restrictions on churches and other entities organized under § 501(c)(3). Not only does this Comment propose that such restrictions could potentially be invalidated based on the Court's reasoning in Citizens United, but also that practical factors relating to compliance and enforcement problems inherent in § 501(c)(3) indicate the ban should be amended. This Comment concludes by offering a proposed change to § 501(c)(3)'s politicking ban that would allow a § 501(c)(3) organization to engage in “some” amount of politicking, as long as it was not a substantial part of the organization's overall charitable activity.
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I was just thinking that myself, this morning, after reading a David Skeel working paper on churches and public life. It should be okay and good for churches and other nonprofits to endorse candidates for office. The public would learn from such endorsements. The problem is to distinguish such organizations from political campaigns, but that isn't really so difficult--- the test could something like that less than 1% of their funds go to partisan politicking.
Hauerwasian Christian Legal Theory
David A. Skeel Jr.
University of Pennsylvania Law School ; European Corporate Governance Institute (ECGI)
Law & Contemporary Problems, Forthcoming
U of Penn Law School, Public Law Research Paper No. 12-02
Posted by: Eric Rasmusen | Apr 28, 2012 12:37:48 AM