ASIN: 0807077224
“Free at last . . . Free at last.” So said former Clinton advisor Vernon Jordan last year to the cheers and applause of those at a meeting of the National Urban League.
On that occasion, however, Mr. Jordan was not referring to civil rights advancements for blacks – rather, he was celebrating his freedom from the choke collar attached to a very short leash held by the federal government on the free speech rights of this country’s charitable organizations.
Mr. Jordan said that when he was the President of the Urban League he often felt “enslaved” by the rules and regulations applicable to “charitable” entities given tax-free status under Internal Revenue Code §501(c)(3). But now, because he is no longer an “official” associated with the Urban League, he feels, in his words, “emancipated” to freely express his political views. And so he did - and perhaps wrongly. He used the podium set before the Urban League’s national assembly to negatively critique both President Bush and his policies.
Under the IRS’s rules, regulations and guidelines, a §501(c)(3) organization “may not participate at all in campaign activity for or against political candidates” and “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of, or in opposition to, any candidate for elective public office.” Further, leaders of such organizations cannot make “partisan” comments in any official organization publications or at official functions, and “indirect participation” in a political campaign includes such things as contributing funds to a campaign or issuing position statements on behalf of, or in opposition to, any candidate.
The penalty for an infraction can be quite severe. It may result in “denial or revocation of tax-exempt status and the imposition of certain excise tax.” Moreover, in some, if not all, such cases the imposition of taxes may be imposed retroactively on all income the organization has received since its inception. In short, revocation could equate to automatic bankruptcy for the organization.
Why is this a problem? Because most faith-based organizations (i.e. churches) in this country are tax exempt under §501(c)(3), and consequently their valuable input into the political debate surrounding many grave social issues is effectively silenced -- issues of immense importance not only to both these organizations and their members but to our Nation’s cultural future as well -- issues such same-sex marriage, abstinence education, gender orientation legislation, hate speech legislation, stem cell research, abortion, late-term abortion and, perhaps most importantly, the social policy predispositions of the judicial nominees and politicians that will determine the outcomes of these issues.
The threat made to churches that would violate this mandate of political silence is real. One editorial commentator recently put it this way: “Either religious leaders must confine their public actions to religious matters or forfeit the tax-free status of religious individuals and organizations.” Moreover, there now exist groups that are actively seeking to enforce this threat, such as Americans United for Separation of Church and State and the Mainstream Coalition. Their members (Gestapo?) are sent to monitor the services of various churches for inappropriate or unlawful “political content”. And in those instances that these monitors perceive that a speaker has crossed the line, a complaint seeking revocation of the church’s tax exemption is filed with the I.R.S.
At the same time, however, the free speech rights of those who would oppose faith-based views are not subject to any similar restraint. For example, at the Democratic Convention in Boston and the events leading up to it, Christians and their views were repeatedly attacked publicly by, among others, Howard Dean, Bill Maher, Alec Baldwin, Ben Affleck, Rob Reiner, Linda Ronstadt and Ron Reagan, Jr. And, in response, the silence of the churches was deafening due to the vulnerability caused by their tax exemptions if they were to do otherwise and speak out in defense of their beliefs.
How can this inequality be rectified? First, by acknowledging that the 501(c)(3) choke collar imposed upon churches is self-imposed by churches that seek and maintain tax exempt status. The alternative? Bite the bullet and offer to pay taxes in exchange for the right to freely express and defend one’s individual and corporately held opinions and beliefs.
For new or recently formed churches this should be virtually painless. For churches that have been in existence longer, however, this might threaten their very survival if forfeiture of the exemption would result in retroactive taxation of the church back to its beginning. But even so there still exists a tremendous opportunity.
Consider the publicity that would be generated if one such church were to publicly offer to forfeit its exemption and commence paying taxes as of the current tax year, if the I.R.S. would waive the retroactive tax penalty and thereby permit the church to avoid bankruptcy? In essence, the church would be offering to render unto Caesar what is Caesar’s (taxes) and to render to God what is God’s (obedience to his commandments and precepts). And, in reality for church leaders the alternative to making this offer could be grim. For example, they may ultimately find themselves before the God they were to worship and trust having to explain their silence in the face of 40,000,000 deaths and find that the loss of a tax exemption as an excuse is unacceptable to that God.
Moreover, consider the earthly benefits of making such an offer to the I.R.S. Perhaps the first headline would read:
“CHURCH REQUESTS I.R.S. PERMISSION TO PAY TAXES IN ORDER TO ELIMINATE GOVERNMENT’S INTRUSION UPON THE CHURCH’S OTHERWISE UNALIENABLE RIGHT TO FREE SPEECH”
The real question, however, is whether the next day’s headline would read:
“I.R.S. DENIES REQUEST TO PAY TAXES MADE BY CHURCH SEEKING FREE SPEECH RIGHTS”
For is not the real question whether the power to silence the views and opinions of churches has a value to the government and the churches’ political opponents that is greater than the value of any taxes such churches would pay due to forfeiting their exemptions.
Yet, even if that is the case, then at least we might all be brought to a future appreciation of one true, yet subtle, purpose for which churches are offered the exemption in the first place: to effectively secure their silence.
© 2005 Clifford C. Nichols
Cliff Nichols is an attorney practicing criminal defense/entertainment law in Santa Monica, California. He may be contacted regarding this editorial at either (310) 917-1083 or www.cliffnicholslaw.com or join his blog at www.thedailystand.com
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