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Saving the Preachers: The Tax Code's Prohibition on Church Electioneering

43 Pages Posted: 28 Nov 2012  

Nicholas P. Cafardi

Duquesne University - School of Law

Date Written: 2012

Abstract

Churches, like other 501(c)(3) organizations are subject to a prohibition on electioneering. This prohibition has survived decades of constitutional challenges because the tax exemption that 501(c)(3) organizations enjoy is a privilege and not a right. This article examines the claim of churches that they have a right to intervene in elections contrary to existing IRS regulations based on the free exercise clause and the Religious Freedom Restoration Act, and finds such claims wanting.

The article explains that tax exemption and the ability to attract tax deductible gifts are a form of government and taxpayer subsidy. This subsidy exists for 501(c)(3) organizations because Congress believes that their charitable activities promote the public welfare and are worthy of subsidy. On the other hand, Congress did not wish to subsidize the political activities of tax exempt organizations, hence the prohibition. The rules prohibiting electioneering are rather lenient and very rarely have churches lost their exemption. Finally this article explains that this prohibition on electioneering has been very beneficial because it has helped maintain the separation of church and state that is fundamental to our nation.

Keywords: electioneering, political speech, tax exempt, churches, RFRA, Religious Freedom Restoration Act, tax, separation of church and state, Internal Revenue Code Section 501(c)(3)

Suggested Citation

Cafardi, Nicholas P., Saving the Preachers: The Tax Code's Prohibition on Church Electioneering (2012). Duquesne University Law Review, Vol. 50, p. 503, 2012; Duquesne University School of Law Research Paper No. 2012-16. Available at SSRN: https://ssrn.com/abstract=2181557

Nicholas P. Cafardi (Contact Author)

Duquesne University - School of Law ( email )

600 Forbes Avenue
Pittsburgh, PA 15282
United States

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