# Pastors Will Challenge IRS Rules Prohibiting Political Endorsement **URL:** \ **Category:** Great Debates\ **Created:** [September 23, 2012, 5:04pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603 "2012-09-23T17:04:53Z")\ **Posts on this page:** 20\ **Page:** 9
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 26, 2012, 1:45pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/161 "2012-10-26T13:45:32Z")
> [@Bricker](#): > > Correct. My only position here is that a rule which is never enforced, but held out as a possible penalty, is an untenable state of affairs. > > I am not yet sure about I think things SHOUD be, from a public policy perspective, but I am pretty certain the rule is constitutional. Maybe you **should** think about that. After all, the point of this exercise isn’t that a bunch of churches want to lose their tax-exempt status. It’s that they think this will lead to an abolition of the line between organizations that can receive tax-deductible contributions, and those that can’t. Regardless of whether YOU think the current rule’s constitutionality would be upheld by some idealized set of courts, what do you think the Roberts Court would do with this? Given their recent history, do you think there’s a nontrivial chance that they might find for the churches, once they were able to challenge this section of the Internal Revenue Code? Because, as a number of other posters have said, it’s hard to see how this pertains just to the churches. The outcome of a win would likely be that contributions to all nonprofits would be tax-deductible, or that the deduction for charitable contributions would be done away with entirely. I think the first option would be crazy, and the second would be unfortunate. Sure, I think the IRS should enforce the regs they’ve got, but I think it’s more important that the demarcation we currently have between organizations that can receive tax-deductible contributions and those that can’t doesn’t get done away with. Maybe if Obama wins re-election and gets to replace Scalia or Kennedy with a more reasonable Justice, I’d trust the Supreme Court with this issue. But not until. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 26, 2012, 2:17pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/162 "2012-10-26T14:17:21Z")
I doubt that the current Supreme Court is likely to view this condition on 501©(3) status as a constitutional problem. Unconstitutional conditions doctrine is probably \*the \* constitutional issue of the next decade because of how legislators try to accomplish things these days, but it’s a complete mess of a doctrine, and I doubt the Court would employ it to resolve such a high-profile issue until they fix it on smaller potatoes. But issues like this are going to pop up frequently in the coming decades, I suspect, because it’s not too clear anymore what exactly the Constitution protects when it comes to religious freedom. It seems that laws that principally impact Christians’ religious freedom get struck down (Hosanna-Tabor v. EEOC protects the right of churches to ignore employment discrimination laws) while laws that principally impact minority religions get upheld (Employment Division v. Smith says that Native Americans don’t get to smoke peyote). There are other technical ways to distinguish those outcomes of course, but they read more like fig leaves than stable jurisprudence to this observer. Protecting only majority faiths is obviously not a stable answer, and so the Court is gonna have to decide whether free exercise means following the same rules as everyone else, or not. Given the general direction of society, I’d place my bets on the Employment Division v. Smith side of things. It becomes ever-harder to come up with secular justifications for protecting acts of religious conscience that would be unprotected if they were simply acts of sincere secular conscience. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 26, 2012, 4:45pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/163 "2012-10-26T16:45:23Z")
> [@Richard\_Parker](#): > > I doubt that the current Supreme Court is likely to view this condition on 501(c)(3) status as a constitutional problem. Unconstitutional conditions doctrine is probably \*the \* constitutional issue of the next decade because of how legislators try to accomplish things these days, but it’s a complete mess of a doctrine, and I doubt the Court would employ it to resolve such a high-profile issue until they fix it on smaller potatoes. ISTM that given that they were willing to decide _Citizens United_ on free-speech grounds, this would be small potatoes by comparison. And I see this dispute’s avenue to the Supreme Court as being about burdens on free speech rather than freedom of religion. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [October 26, 2012, 4:51pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/164 "2012-10-26T16:51:58Z")
If the IRS was sure of itself, it would be enforcing the law more. The fact that they are content to merely allow the law to chill speech rather than take enforcement action speaks volumes. Laws that governments are scared to enforce are often unconstitutional. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 26, 2012, 4:55pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/165 "2012-10-26T16:55:24Z")
Thank you for that insightful legal analysis. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [October 26, 2012, 4:59pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/166 "2012-10-26T16:59:21Z")
Can the government make tax exempt status conditional on not engaging in certain kinds of political speech? I doubt it. Is that better? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 26, 2012, 5:27pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/167 "2012-10-26T17:27:49Z")
> [@RTFirefly](#): > > ISTM that given that they were willing to decide _Citizens United_ on free-speech grounds, this would be small potatoes by comparison. And I see this dispute’s avenue to the Supreme Court as being about burdens on free speech rather than freedom of religion. If they take it on free speech alone, then they’d have to invalidate the whole framework. That’s what I think is quite unlikely. Unlike Citizens United which concerned regulation of political speech, this would involve differential taxing of organizations that engage in political speech. The difference is rather important, and requires them to go out on much thinner ice, in my opinion. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 26, 2012, 5:31pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/168 "2012-10-26T17:31:36Z")
> [@adaher](#): > > Can the government make tax exempt status conditional on not engaging in certain kinds of political speech? I doubt it. Is that better? Can the government provide subsidies to only a certain subset of doctors who engage in particular speech related to abortion? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 26, 2012, 5:47pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/169 "2012-10-26T17:47:17Z")
> [@adaher](#): > > If the IRS was sure of itself, it would be enforcing the law more. The fact that they are content to merely allow the law to chill speech rather than take enforcement action speaks volumes. > > Laws that governments are scared to enforce are often unconstitutional. Cite for 4 or 5? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 26, 2012, 6:59pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/170 "2012-10-26T18:59:34Z")
> [@Richard\_Parker](#): > > If they take it on free speech alone, then they’d have to invalidate the whole framework. That’s what I think is quite unlikely. Unlike Citizens United which concerned regulation of political speech, this would involve differential taxing of organizations that engage in political speech. The difference is rather important, and requires them to go out on much thinner ice, in my opinion. I dunno - I think I could make a halfway convincing argument myself. An economic burden on political speech as opposed to other kinds of speech is a burden on political speech. Political speech is an exceedingly important and significant kind of speech in a democracy, and burdening it interferes with the proper working of a democracy. And burdens on speech of any kind need the strongest of justifications. Etc. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 26, 2012, 7:04pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/171 "2012-10-26T19:04:52Z")
> [@adaher](#): > > Can the government make tax exempt status conditional on not engaging in certain kinds of political speech? I doubt it. Is that better? It can make _employment_ conditional on not engaging in certain kinds of political speech. Even if it can’t, the result will be that 501(c)3s are no longer tax-exempt, not that they may engage in any speech they want. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 26, 2012, 7:05pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/172 "2012-10-26T19:05:41Z")
> [@RTFirefly](#): > > I dunno - I think I could make a halfway convincing argument myself. An economic burden on political speech as opposed to other kinds of speech is a burden on political speech. Political speech is an exceedingly important and significant kind of speech in a democracy, and burdening it interferes with the proper working of a democracy. And burdens on speech of any kind need the strongest of justifications. Etc. In the abstract you can make that argument. In the actual legal doctrine, there is a clearer divide between regulating something and incentivizing it. The Court has routinely differentiated law that actually regulate speech from taxing and spending (and not just in speech, but in many different doctrines). My rhetorical question to \*\*adaher \*\*above is a good example. Rust v. Sullivan stands for the proposition that the government may withhold money from doctors who counsel or advise patients that abortion is an option. The Court basically says that where the government chooses to spend its money has no First Amendment implications. I think that’s probably wrong as a categorical principle, but finding the edges of it is no easy task. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 26, 2012, 11:53pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/173 "2012-10-26T23:53:33Z")
> [@Bricker](#): > > Sure. But consider for a longer moment the precise meaning of “cost efficiency” in this context. Do you make an example of a struggling pastor in a minority neighborhood, or a pastor of a megachurch, whose fight will include a cadre of lawyers with the time and the money backing to bury the IRS in paper and move the fight into the court system? > > The decision to proceed on a “cost-effective” basis has, as an unintended consequence, the greater risk for those without resources to fight. I say that’s an undesirable state of affairs. > [@Measure\_for\_Measure](#): > > I had not considered that angle: good point. I guess I would distinguish between 2 sorts of challenges to the law. If the law was broken inadvertently, then your example is troubling. If it was done intentionally, but without the plan of pushing the case to the appellate level and beyond, then your example is troubling as well. > > But if you’re going to make a test case of something (eg [Griswold v Connecticut](https://en.wikipedia.org/wiki/Griswold_v._Connecticut) according to Robert Bork’s SC testimony) then methinks you better get the big guns lined up ahead of time. Heck, if it’s a perfect test case, the big guns will come to you - consider Gideon v. Wainwright (cite: [Anthony Lewis](https://en.wikipedia.org/wiki/Gideon%27s_Trumpet)). > > IANAL, but I suspect you could give multiple troubling examples outside of my test case scenario. It has not been my experience that the IRS shies away from confronting monied interests, it would severely undercut their ability to be effective. The IRS has a pretty long history of independence. One of the lions of the tax bar recently passed away and he is a shining example of how independent the IRS was and is. [Donald Alexander - Wikipedia](http://en.wikipedia.org/wiki/Donald_Alexander) The Scientologists seem to be the only folks the IRS can’t seem to handle. > [@Shodan](#): > > What does that have to do with the question? Where in the Bible does it say that life begins with the first breath? > > Regards, > Shodan The bible at least at one point states that John the Baptist recognizes Jesus as the son of God while they are both still in the womb. > [@RTFirefly](#): > > ISTM that given that they were willing to decide _Citizens United_ on free-speech grounds, this would be small potatoes by comparison. And I see this dispute’s avenue to the Supreme Court as being about burdens on free speech rather than freedom of religion. This isn’t about free speech, this is a special pleading by the church implying that even without the 501(c)(3) exemption, they would be exempt from taxes. The problem is that without the 501(c)(3) donations would not be deductible. > [@adaher](#): > > If the IRS was sure of itself, it would be enforcing the law more. The fact that they are content to merely allow the law to chill speech rather than take enforcement action speaks volumes. > > Laws that governments are scared to enforce are often unconstitutional. Not in this case. > [@adaher](#): > > Can the government make tax exempt status conditional on not engaging in certain kinds of political speech? I doubt it. Is that better? I think you are wrong. You can condition tax breaks on whatever non-discriminatory basis you want. The reason they don’t revoke tax exempt status is because of the political fallout, not because they have a weak constitutional case. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [October 27, 2012, 1:21am UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/174 "2012-10-27T01:21:10Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It can make _employment_ conditional on not engaging in certain kinds of political speech. > > Even if it can’t, the result will be that 501(c)3s are no longer tax-exempt, not that they may engage in any speech they want. Non profits, especially churches, have been tax exempt since the founding. Then the government added some strings nearly 200 years later, because one Congressman was feeling in a vindictive mood. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [October 27, 2012, 1:22am UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/175 "2012-10-27T01:22:26Z")
Can the government make the home mortgage interest deduction conditional on not engaging in political activity? ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [October 27, 2012, 1:33am UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/176 "2012-10-27T01:33:38Z")
> [@adaher](#): > > Non profits, especially churches, have been tax exempt since the founding. Then the government added some strings nearly 200 years later, because one Congressman was feeling in a vindictive mood. Well, except that we didn’t _have_ an income tax for most of that time, so the whole “non-profit” thing doesn’t really apply since that’s an income tax thing. I’d also like a cite that any “strings” were only added “nearly 200 years later”. I would assume that some sort of proof/filing/restrictions were in place from the beginning. Otherwise, I’d have sure started the “Church of Make Zakalwe More Money” long ago. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 27, 2012, 1:39am UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/177 "2012-10-27T01:39:56Z")
> [@adaher](#): > > Can the government make the home mortgage interest deduction conditional on not engaging in political activity? Now you’re getting closer to the real question. Does the answer to that one seem obvious to you? Did the answer to the anti-abortion doctor subsidies seem obvious? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [October 27, 2012, 3:13am UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/178 "2012-10-27T03:13:45Z")
The courts have established that basic rights cannot be burdened by taxation, especially when taxation is of a punitive nature or intended to chill the exercise of those basic rights. that’s why Republicans can’t tax abortion out of existence. And it’s why the government can’t use the tax power to ban political speech by religious organizations. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [October 27, 2012, 3:16am UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/179 "2012-10-27T03:16:09Z")
> **[MINNEAPOLIS STAR AND TRIBUNE COMPANY, Appellant v. MINNESOTA COMMISSIONER OF...](https://www.law.cornell.edu/supremecourt/text/460/575)** While exempting periodic publications from its general sales and use tax, Minnesota imposes a “use tax” on the cost of paper and ink products consumed in the production of such a publication, but exempts the first $100,000 worth of paper and ink consumed in any calendar year. Appellant newspaper publisher brought an action seeking a refund of the ink and paper use taxes it had paid during certain years, contending that the tax violates, inter alia, the guarantee of the freedom of press in the First Amendment. The Minnesota Supreme Court upheld the tax. Held: The tax in question violates the First Amendment. Pp. 579-593. (a) There is no legislative history, and no indication, apart from the structure of the tax itself, of any impermissible or censorial motive on the part of the Minnesota Legislature in enacting the tax. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 distinguished. Pp. 579-580. (b) But by creating the special use tax, which is without parallel in the State’s tax scheme, Minnesota has singled out the press for special treatment. When a State so singles out the press, the political constraints that prevent a legislature from imposing crippling taxes of general applicability are weakened, and the threat of burdensome taxes becomes acute. That threat can operate as effectively as a censor to check critical comment by the press, thus undercutting the basic assumption of our political system that the press will often serve as an important restraint on government. Moreover, differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression, and such goal is presumptively unconstitutional. Differential treatment of the press, then, places such a burden on the interests protected by the First Amendment that such treatment cannot be countenanced unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve without differential taxation. Pp. 581-585. And this one was struck down despite the legislature not having censorious motives. The IRS rule on non-profits IS actually meant to censor. A similar case is about to come up regarding the 2nd amendment. The Cook County board wants to get cute and tax guns out of existence: > **[TheBlaze](https://www.theblaze.com/tag/top-official-proposes-bullet-tax-to-curb-chicago-violence-then-taunts-pro-gun-groups-youre-welcome-to-sue)** > > News and entertainment for people who love America. Cook County Board President Toni Preckwinkle submitted a proposed budget on Thursday that would impose a tax of a nickel for each bullet and $25 for each firearm sold in the nation’s second-largest county, which encompasses Chicago. Preckwinkle’s office estimates the tax will generate about $1 million a year, money that would be used for various county services including medical care for gunshot victims. Law enforcement officials would not have to pay the tax, but the office said it would apply to 40 federally licensed gun dealers in the county. Through last week, the city reported 409 homicides this year compared to 324 during the same period in 2011. Although the violence still doesn’t approach the nearly 900 homicides a year Chicago averaged in the 1990s, officials say gang activity was largely to blame for a rash of shootings earlier this year. Preckwinkle insists the ordinance is far more about addressing gun violence than raising money for a county that faces a budget shortfall of more than $260 million. “The violence in Cook County is devastating and the wide availability of ammunition only exacerbates the problem,” she told the board Thursday. So this tax’s very purpose is to burden 2nd amendment rights. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 27, 2012, 3:42pm UTC](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603/180 "2012-10-27T15:42:44Z")
> [@adaher](#): > > Non profits, especially churches, have been tax exempt since the founding. Then the government added some strings nearly 200 years later, because one Congressman was feeling in a vindictive mood. The tax exempt status of the churches themselves is not the issue here. It’s whether their donors can deduct gifts to the churches from _their_ taxes. Donations to political campaigns are not deductible. That’s the whole point of the 501(c)(3) - those donations are deductible. [Previous page](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603.md?page=8) [Next page](https://boards.straightdope.com/t/pastors-will-challenge-irs-rules-prohibiting-political-endorsement/635603.md?page=10)