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Wednesday, March 1, 2017

Zelinsky:  Churches' Lobbying And Campaigning — A Proposed Statutory Safe Harbor For Internal Church Communication

Edward A. Zelinsky (Cardozo), Churches' Lobbying and Campaigning: A Proposed Statutory Safe Harbor for Internal Church Communications, 68 Rutgers L. Rev. ___ (2017):

President Trump, reiterating the position he took during the presidential campaign, has recently reaffirmed his pledge to “get rid of and totally destroy the Johnson Amendment,” the provision of the Internal Revenue Code which prohibits tax-exempt institutions from participating in political campaigns. The Code also bars tax-exempt institutions, including churches, from substantial lobbying activities.

Rather than the blanket repeal of the Johnson Amendment proposed by President Trump, I argue for a statutory safe harbor for the internal communications of churches.

This limited safe harbor would protect in-house church discussions from both Section 501(c)(3)’s ban on substantial lobbying and from that section’s prohibition on political campaigning. Under this proposed amendment to the Internal Revenue Code, churches, along with other religious and secular tax-exempt institutions, would otherwise remain subject to the Code’s bars on campaigning and lobbying. While entanglement considerations counsel greater protection than current law provides for speech within churches,these statutory bars properly deter the diversion of income tax-deductible resources to campaigning and lobbying. My more targeted reform of the Johnson Amendment addresses the legitimate concerns of churches about their First Amendment rights while preventing the tax-exempt sector from becoming a conduit for tax-deductible campaign contributions.

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Good paper. I'm working rapidly while proctoring an exam, but I see that "Section 501(c)(3), through what is often denominated as “the
Johnson Amendment,” forbids tax-exempt organizations, including
churches, from “participat[ing] in, or interven[ing] in,
(including the publishing or distributing of statements), any
political campaign on behalf of (or in opposition to) any
candidate for public office.”" and

"Revenue Ruling 2007-4111 is the IRS’s current interpretation."
That revenue ruling is what says a preacher cannot endorse from the pulpit, for example, and other purely internal actions that help a non-incumbent candidate. (The paper notes that the IRS is very lenient on chruches giving opportunities for incumbents to get good publicity and implicit endorsement).
Thus, it seems to me no statutory amendment is needed. The problem is with IRS making bad regulations that do not properly administer existing law. Chevron protects that, or would if the IRS actually followed the APA. So Trump can just issue new regulations and implement Zelinsky's idea.

Posted by: Eric Rasmusen | Mar 1, 2017 2:14:46 PM