Never mind!: https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud
On Thu, May 4, 2017 at 11:53 AM, Marty Lederman < martin.leder...@law.georgetown.edu> wrote: > Just came across this from David Saperstein’s testimony > <https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf> > today. He makes the point much better than I did--I would only add that > virtually all of his hypos could be extended beyond the church, to > countless activities of *all *501(c)(3) organizations: > > Let me offer some hypotheticals of the implications of a proposal that > says any statement is allowed that does not involve extra expenses: > > Suppose instead of one sermon, in every scheduled sermon for the half-year > running up to the election, the pastor(s) endorses various candidates and > reiterates those endorsements? > > Suppose in every regular bulletin and regular email over those six months, > the pastor or church leaders focus on endorsements of a party or a > candidate(s)? > > Suppose with the costs of local calls being de minimis these days, they > allow their phones to be used for campaign phone banks? > > Suppose a church has their congregants fill out cards for the offerings > for later tax verification (putting their money and card in an envelope > which they hand in) — and the church then adds envelopes and cards to fill > out for contributions to the candidates they endorse and collect those with > the offerings and someone from the campaign comes by every week and > collects them. > > Or suppose the President of Notre Dame or Catholic University adds a > single sentence to their regular email to their scores of thousands of > alumni : “I believe based on sound religious reasoning you should all vote > for Candidate A and oppose Candidate B.” > > Certainly de minimis but is that how tax deductible money should be used? > In each of these there is no extra funding bulletins or emails, collecting > offerings) what they would normally do. > > Are proponents of this legislation arguing that although you might > disapprove on other grounds, that as far as the law is concerned, this > ought to be allowed because it really doesn’t constitute using tax exempt > and tax deductible funding for partisan political purposes? What is the > cumulative value of the salaries and the overhead of the congregation in > making this electioneering possible? If the church is funded by tax > deductible contributions, are not these contributions subsidizing this > electoral activity? If the church has the benefit of tax exemption to > support its eleomosynary work, does not the tax exemption support > everything the church does including its endorsement activities? Everything > about the church is subsidized by tax exempt and tax deductible money. And > that is as true of one sermon as six months of sermons; of one bulletin as > six months of bulletins. > > > > On Thu, May 4, 2017 at 11:29 AM, Marty Lederman <Martin.Lederman@law. > georgetown.edu> wrote: > >> I'm afraid I don't quite understand Doug's other point, which appears to >> be that the no-political-activity condition should not be construed to >> extend to sermons (or Congress should amend the law to exclude sermons) >> because churches don't spend money on sermons. But of course churches >> spend money on sermons--indeed, that is among the functions *for which* *they >> are afforded tax benefits*. The government subsidizes the "religious" >> activities of churches, for the reasons described in *Walz *(i.e., >> they're presumptively analogous to the also-benefited charitable, >> educational, etc., activities of other organizations within the class). >> Paying for clergy is certainly within that category of activities that are >> afforded the tax benefits. But Congress has decided that although it's >> perfectly happy to pay for other sermons by clergy--just as it pays for >> plenty of speech by other nonprofits--it doesn't want to subsidize >> specifically partisan endorsements, by churches or any other (c)(3)s. >> >> 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-boun...@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 <(202)%20662-9937> >> >> > > > -- > Marty Lederman > Georgetown University Law Center > 600 New Jersey Avenue, NW > Washington, DC 20001 > 202-662-9937 <(202)%20662-9937> > > -- 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.
