Marty and I agree (although I wouldn't say "thankfully" across the board). http://mirrorofjustice.blogs.com/mirrorofjustice/2017/05/quick-reaction-on-the-trump-religious-liberty-eo.html
----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu> SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.com ----------------------------------------------------------------------------- ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu> Sent: Thursday, May 4, 2017 12:55:16 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. 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<mailto: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.leder...@law.georgetown.edu<mailto:martin.leder...@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<mailto: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<tel:(434)%20243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto: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<mailto: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<tel:(202)%20662-9937> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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<tel:(202)%20662-9937> -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937<tel:(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.
