Doug asks: "Is there any reason to think that the IRS is pursuing cost-free endorsements by secular non-profits? If not, there is no discrimination to trigger Marty’s Establishment Clause argument about current enforcement policy. I have never seen any account of such a case against a secular non-profit."
I agree -- if the IRS were to look the other way whenever (c)(3)'s of all stripes endorse candidates, then that wouldn't violate the First Amendment. But is there any reason to think that other (c)(3)'s, i.e., other than churches, engage in such widespread, conspicuous violations of the law, let alone that the IRS turns a blind eye to them? Not a rhetorical question: I'm genuinely unaware of any such phenomenon, and would be grateful for any further information. On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > Unless there has been some recent change in IRS policy that I don’t know > about and that Marty does not suggest, the Amendment is not limited to > “express” endorsements. The IRS jawboning, which is its only enforcement > effort, describes many things that it views as implicit endorsements, such > as voter guides that focus on issues of concern to the church, or > comparisons of candidate positions to church positions. These are > summarized in the CRS report he links to. > > > > There is an ambiguity at the end of the paragraph that begins “notably.” > Contributions to the 501(c)(4) would not be tax deductible. Creating the > 501(c)(4) would not change the status of the original 501(c)(3). > > > > The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as > applied to political expenditures. The hard issue of cost-free endorsements > in sermons was not presented. > > > > Is there any reason to think that the IRS is pursuing cost-free > endorsements by secular non-profits? If not, there is no discrimination to > trigger Marty’s Establishment Clause argument about current enforcement > policy. I have never seen any account of such a case against a secular > non-profit. > > > > The real problem with what Marty anticipates from the EO is this: Since > the IRS already has an implicit policy of non-enforcement with respect to > cost-free endorsements, the only possible effect of the EO is to direct > non-enforcement with respect to political expenditures of money. And that > would open up an enormous loophole in campaign finance regulation and in > the rule that political expenditures are not tax deductible. > > > > A House Subcommittee is holding hearings this morning on the bills to > repeal or amend the Johnson Amendment. > > > > Shameless plug: I wrote about the Johnson Amendment here: > https://www.christiancentury.org/article/dont-repeal- > johnson-amendment-fix-it > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Thursday, May 4, 2017 8:56 AM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Johnson Amendment E.O. > > > > FYI: > > > > https://takecareblog.com/blog/what-s-all-this-fuss-about- > the-johnson-amendment > > > > Please let me know if you notice any mistakes, thanks. > > > > -- > > Marty Lederman > > Georgetown University Law Center > > 600 New Jersey Avenue, NW > > Washington, DC 20001 > > 202-662-9937 <(202)%20662-9937> > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
