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Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition. Even Against Churches

62 Pages Posted: 9 Jan 2015 Last revised: 5 Mar 2016

Samuel D. Brunson

Loyola University Chicago School of Law

Date Written: January 7, 2015

Abstract

In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the I.R.S. was to revoke its exemption.

While simple in theory, in practice, the I.R.S. rarely penalizes churches that violate the campaigning prohibition, and virtually never revokes a church’s tax exemption. And, because no taxpayer has standing to challenge the I.R.S.’s inaction, the I.R.S. has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.

This argument makes the normative case that, notwithstanding the I.R.S.’s administrative discretion and the inability of taxpayers to challenge its nonenforcement in court, the time has come for the I.R.S. to begin enforcing the campaigning prohibition. Failing to do so harms the Rule of Law, the taxpaying public, and churches themselves. Moreover, the moment is correct for enforcement, as Pulpit Freedom Sunday has virtually eliminated the I.R.S.’s search costs, people are more aware than ever that churches are violating the prohibition, and, in the aftermath of the Supreme Court’s Citizens United decision, the campaigning prohibition may represent the final regulatory barrier between charities and politicking.

Even if enforcing the campaigning prohibition is the right thing to do, it would potentially be unpopular, and could provoke a backlash against the I.R.S. After making the normative case for enforcement, then, this Article provides a strategy for enforcement that will allow the I.R.S. to explain what it is doing and why to the general taxpaying public, and will further permit the I.R.S. to avoid the appearance of partisanship. Ultimately, enforcement will allow the I.R.S. to responsibly administer the tax law, will permit the question of the prohibition’s constitutionality to get in front of the judiciary, and will demonstrate dedication to the Rule of Law.

Keywords: federal income tax, 501(c)(3), campaigning prohibition, church, public charity, rule of law, administrative discretion, I.R.S., enforcement, pulpit freedom sunday, excise tax, judicial review, revocation

Suggested Citation

Brunson, Samuel D., Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition. Even Against Churches (January 7, 2015). University of Colorado Law Review, Vol. 87, 2016; Loyola University Chicago School of Law Research Paper No. 2015-003. Available at SSRN: https://ssrn.com/abstract=2546453 or http://dx.doi.org/10.2139/ssrn.2546453

Samuel D. Brunson (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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