* Associate, Mayer, Brown & Platt, Chicago, Illinois; Lecturer in Law, University of Chicago Law School. I thank Greg Barton, David Fuller, Rick Garnett, Christine Lambrou Johnson, Michael Mosher, Mike Paulsen, and John Schmidt for thought-provoking discussions and insights as I prepared this article.
1 See Editorial, Keeping the Faith, WALL. ST. J., Aug. 2, 2000, at A22.
2 The O’Reilly Factor: Personal Story: Preachers and Politicians (FOX News broadcast, Aug. 9, 2000) (available at 2000 WL 6331313).
3 See 26 U.S.C. � 501(c)(3) (1976) (stating that, to qualify as a charitable entity, an organization must “not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office”).
4 See Jo Mannies et al., Republican National Convention 2000: Church Endorsing Bush May Be Violating Tax Law, St. Louis Post-Dispatch, Aug. 2, 2000, at A11.
5 For the sake of convenience, I use “church” in this Article as a shorthand for all houses of religious worship, and sometimes for all religious organizations.
6 See, e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam) (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” (quoting Roth v. United States, 354 U.S. 476, 484 (1957)); Mills v. Alabama, 384 U.S. 214, 218 (1966) (noting the “practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. . . . of course includ[ing] discussions of candidates”).
7 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
8 Id. at 273; see also First National Bank v. Bellotti, 435 U.S. 765, 784–86 (1978).
9 See, e.g., Thomas Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986); Michael W. McConnell, Why is Religious Liberty the “First Freedom”?, 21 Cardozo L. Rev. 1243 (2000).
10 Capitol Square Review & Advisory Bd. v. Pinnette, 515 U.S. 753, 760 (1995).
11 See, e.g., Regan v. Taxation with Representation, 461 U.S. 540, 547 (1983) (“Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes.”); Madden v. Kentucky, 309 U.S. 83, 87–88 (1940) (“The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . [T]he presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.”).
12 In this Article, I address the legal issues raised when religious officials and the like speak of politics. I have elsewhere addressed the legal issues raised when political officials (and in particular judges) speak of religion. See Michael Stokes Paulsen & Steffen N. Johnson, Scalia’s Sermonette, 72 NOTRE DAME L. REV. 863 (1997). On that topic, see also Theresa S. Collett, The King’s Good Servant, But God’s First: The Role of Religion in Judicial Decisionmaking, 41 S. TEX. L. REV. 1277 (2000); Sanford Levinson, The Confrontation of Religious Faith and Civil Religion: Catholics Becoming Justices, 39 DEPAUL L. REV. 1047 (1990).
13 26 U.S.C. � 501(c)(3). See also Bruce R. Hopkins, Charity, Advocacy, and the Law 16 (1992).
14 See 26 U.S.C. � 501(c)(3). See generally Hopkins, supra note 13, at 130.
15 See 26 U.S.C. � 501(c)(2).
16 26 U.S.C. � 501(c)(3) states that to qualify for tax-exempt status, corporations must be “organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals . . . .”
17 In addition to restrictions imposed by the Internal Revenue Code, tax-exempt charitable entities are also subject to restrictions imposed by federal election law. See Federal Election Campaign Act of 1971, 2 U.S.C. � 431-55 (1999 Supp.).
18 26 U.S.C. � 501(c)(3).
19 Id.
20 See Edward McGlynn Gaffney, Jr., On Not Rendering to Ceasar: The Unconstitutionality of Tax Regulation of Activities of Religious Organizations Relating to Politics, 40 DePaul L. Rev. 1, 3 (1990).
21 See generally Hopkins, supra note 13, � 5.6 at 181–97.
22 Direct lobbying involves communicating a specific view on “specific legislation” to legislators, their staffs, and/or other governmental officials that participate in the formulation of legislation. Treas. Reg. � 56.4911–2(b)(1)(ii) (1990); see also 26 U.S.C. � 4911(d)(1)(B) (1976). This “includes the presentation of testimony at public hearings held by legislative committees, correspondence and conferences with legislators and their staffs, and publication of documents advocating specific legislative action.” See Hopkins, supra note 13, � 5.4 at 137–38.
23 Grass roots lobbying involves communicating a specific view regarding legislation to members of the general public and urging them to take specific action regarding that legislation. Treas. Reg. � 56.4911–2(b)(2)(ii). See also Hopkins, supra note 13, � 5.4 at 138.
24 See 26 U.S.C. �� 491, 501(h) (1994); Treas. Reg. � 1.501(h)-1(a)(3) (1990). See generally Hopkins, supra note 13, �� 5.3–5.10 at 133–228.
25 See Hopkins, supra note 13, � 5.5 at 170 (summarizing these and other categories of “activities excluded from the term ‘influencing legislation’”).
26 Gaffney, supra note 20, at 3.
27 See Hopkins, supra note 13, � 14.4 at 394–407 (explaining the various interpretive difficulties arising under this provision); Christian Echoes Nat’l Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir. 1972) (upholding revocation of the tax exemption of an organization that did not formally endorse or oppose candidates for office, but used publications and broadcasts to criticize incumbents and candidates, with little regard to whether this activity took place in the context of a political campaign).
28 See generally Hopkins, supra note 13, at chap. 14.
29 See generally id. at � 5.2 at 131–32 & � 14.2 at 392–93.
30 78 Cong. Rec. 5861 (1934); see also id. at 5959 (statement of Senator La Follette).
31 See Hopkins, supra note 13, � 14.2 at 392. See generally Patrick L. O’Daniel, More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning By Churches, 42 B.C. L. Rev. 733 (2001).
32 100 Cong. Rec. 9604 (1954) (statement of Sen. Johnson) (explaining only that the purpose of the amendment was to “deny[] tax-exempt status to not only those people who influence legislation but also to those who intervene in any political campaign on behalf of any candidate for public office”).
33 See generally, O’Daniel, supra note 31.
34 See id.
35 See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 61 (1989) (noting that the Court “owe[s] some deference to Congress’ judgment after it has given careful consideration to the constitutionality of a legislative provision”); Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (explaining that the presumption of constitutionality applies with greater force “when . . . Congress specifically considered the question of the Act’s constitutionality”).
36 See Douglas Laycock, A Survey of Religious Liberty in the United States, 47 Ohio St. L. J. 409, 437 (1986) (observing that where “the government argues that the church . . . is not performing a religious function . . . [it] implicitly asserts that the government can define the scope of the church’s mission”).
37 See generally Legislative Activity By Certain Types of Exempt Organizations, Hearings Before the House Ways and Means Comm., 92nd Cong., 2d Sess. 282 (1972) [hereinafter Legislative Activity] (Statement of John W. Baker) (“Some religious entities believe that their religious faith commits them to a complete withdrawal from the secular world. Others are compelled by their faith into an active participation in nearly every aspect of that secular world. If they are to be good stewards of their religious influence these people sincerely believe they must be involved in the formulation of public policy.”).
38 See Jodi Wilgoren, Just Before Election, Politics and Religion Mix Easily at a Michigan Church, N.Y. Times, Nov. 6, 2000, at A23 (“There is a long and proud tradition linking politics and the black church, and never is it more apparent than on the Sunday before Election Day, as candidates for offices large and small parade across pulpits, urging people to vote—for them.”); id. (noting that President Clinton summoned 100 black ministers to the White House “for help in getting out the vote”).
39 See id. (quoting the pastor of “a church steeped in politics” as stating from the pulpit: “We stand on the shoulders of forebears who stood up . . . of forebears who weren’t afraid to challenge that which is wrong. . . . [E]ven during slavery, our forebears were still able to say, ‘I look to the hills from whence cometh my help.’”).
40 See Richard W. Garnett, A Quiet Faith? Taxes, Politics, and the Privatization of Religion, 42 B.C. L. REV. 771, 802-03 (2001) (discussing the prophetic voice of the church in light of 1 Kings 18:17).
41 See, e.g., S. Ahlstrom, A Religious History of the American People 650, 699 (1972); G. Barnes, The Anti-Slavery Impulse, 1830–1844 (1933); Charles S. McCoy, The Churches and Protest Movements for Racial Justice, in Religion and Social Conflict 37, 39 (Robert Lee & Martin E. Marty eds., 1964).
42 See Gaffney, supra note 20, at 10–11.
43 See Barbara B. Zikmund, Biblical Arguments and Women’s Place in the Church, in The Bible and Social Reform 85–104 (Ernest R. Sandeen ed., 1982).
44 See Ahlstrom, supra note 41, at 870–71.
45 See Stephen L. Carter, The Culture of Disbelief: How American Law & Politics Trivialize Religious Devotion 10 (1993) (noting that “the mass protest wing of the civil rights movement . . . was openly and unashamedly religious in its appeals as it worked to impose its moral vision on, for example, those who would rather segregate their restaurants”).
46 See, e.g., War No More? Options in Nuclear Ethics (J. Walters ed. 1989).
47 See, e.g., Dan Van Ness, Crime and Its Victims: What We Can Do (1986); Crime and the Responsible Community (J. Stott & N. Miller eds. 1980).
48 See generally James A. Reichley, Religion in American Public Life (1985); Gaffney, supra note 20, at 9–10, 16 (observing that “religious organizations have played a prominent role in the debates over social issues of the highest moment,” that “[f]rom the beginning of the American experience there has been a vivid connection between religion and politics,” and that there has been “a constant interaction between religion and politics on all the large issues confronted in American politics”).
49 Johann Baptist Metz, The Church and World in the Light of a “Political Theology,” in Theology of the World 114 (1971) (emphasis added), quoted in Gaffney, supra note 20, at 17.
50 Presbyterian Church (U.S.A.), God Alone is Lord of the Conscience: A Policy Statement Adopted by the 200th General Assembly 48 (1989) [hereinafter God Alone].
51 Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 367 (1996) (“Civil society is composed of those more or less spontaneously emergent associations, organizations, and movements that, attuned to how societal problems resonate in the private life spheres, distill and transmit such reactions in amplified form to the public sphere.”).
52 See Edmund Burke, Reflections on the Revolution in France 44 (J.M. Dent ed., 1910) (describing the “little platoons” in which people learn social obligations); Richard W. Garnett, The Story of Henry Adams’s Soul: Education and the Expression of Association, 85 Minn. L. Rev. 1841, 1869–71 (2001) (discussing the mediating and values-shaping role of religious institutions).
53 See generally Alexis de Toqueville, Democracy in America (Philips Bradley ed., Alfred A. Knopf 10th prtg. 1966)(1835); Steffen N. Johnson, Expressive Association and Organizational Autonomy, 85 Minn. L. Rev. 1639, 1666–68 (2001).
54 See generally Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2000) (describing and lamenting the decline in civic and political engagement in America).
55 William A. Galston, The Legal and Political Implications of Moral Pluralism, 57 Md. L. Rev. 236, 247 (1998) (“[T]here seems little doubt that [religious organizations] have fostered political education and engagement to an extent few other kinds of associations can match, at a time when most social forces are pushing toward political and civic disengagement. As a general matter, then, the liberal democratic polity should not casually interfere with organizations that don’t conduct their internal affairs in conformity with broader political norms.”) (footnote omitted).
56 Thomas L. Shaffer, Review Essay: Stephen Carter and Religion in America, 62 U. Cin. L. Rev. 1601, 1604 (1994) (reviewing Carter, supra note 45).
57 See Shaffer, supra note 56, at 1609–17 (defining three traditions: (1) “the Gathered Church,” which “teaches believers to get together and then get out of the way”; (2) “the Church of Christendom,” which “is in service to the civil order, but . . . need not worry about the state’s becoming an idol, because the state itself is Christian”; and (3) “the Witnessing Church,” which “bear[s] witness to the state on the church’s terms” and “fashions its arguments . . . so that they will be heard and understood by nonbelievers as well as believers”).
58 See Influencing Legislation by Public Charities, Hearing Before the House Ways and Means Comm., 94th Cong., 2d Sess. 81–82 (1976) (statement on behalf of the National Council of Churches of Christ in the U.S.A.) [hereinafter Influencing Legislation]. For the statement of one NCC member denomination, see God Alone, supra note 50.
59 See Legislative Activity, supra note 37, at 99 (statement of John W. Baker) (“Each of the affiliates of the National Jewish Community Relations Advisory Council regards its program as an expression of the tenets of the Jewish faith which it is organized to advance. Their activities are inspired by the Prophets’ mandate to pursue justice. They believe that mandate governs [their lives] in all its aspects and requires those who adhere to the principles of Judaism to let their views be heard in support of justice for all.”).
60 See Influencing Legislation, supra note 58, at 90 (statement of the United States Catholic Conference).
61 Cf. Matthew 22:21 (“[R]ender unto Caesar the things that are Caesar’s; and to God the things that are God’s.”).
62 Cf. Acts 4:18–20 (New American Standard Version) (“And when [the governing authorities] had summoned [Peter and John], they commanded them not to speak or teach at all in the name of Jesus. But Peter and John answered and said to them, ‘Whether it is right in the sight of God to give heed to you rather than to God, you be the judge; for we cannot stop speaking what we have seen and heard.’”); Daniel 3:8–18.
63 Luke 14:28.
64 Cf. John Courtney Murray S.J., We Hold These Truths: Catholic Reflections on the American Proposition ix–x (1960) (“The question is sometimes raised, whether Catholicism is compatible with American democracy. The question is invalid as well as impertinent; for the manner of its position inverts the order of values. It must, of course, be turned round to read, whether American democracy is compatible with Catholicism.”).
65 Contra Legislative Activity, supra note 37, at 305 (statement of J. Elliott Corbett) (“[T]he first amendment guarantees of ‘the free exercise’ of religion should not permit the state to tell the church when it is being ‘religious’ and when it is not. The church must be permitted to define its own goals in society in terms of the imperatives of its religious faith. Is the Christian church somehow not being religious when it works on behalf of healing the sick, or for the rights of minorities, or as peacemaker on the international scene? No, the church itself must define the perimeters of its outreach on public policy questions.”) (emphasis added).
66 CARTER, supra note 45, at 147.
67 See, e.g., Rosenberger v. Rector of Univ. of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”); accord R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83, 391–92, 395 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117–18 (1991); Police Dept. of Chi. v. Mosley, 408 U.S. 92, 96 (1972).
68 R.A.V., 505 U.S. at 382; accord Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–43 (1994).
69 See Simon & Schuster, 502 U.S. at 117–18 (quoting Arkansas Writers’ Project v. Ragland, 481 U.S. 221, 231 (1987)).
70 As discussed below, Regan v. Taxation with Representation, 461 U.S. 540 (1983), and subsequent decisions, indicate that the Court does not view the lobbying restriction as imposing a content-based restriction on speech. See infra notes 77–86 and accompanying text.
71 New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
72 Rosenberger, 515 U.S. at 828 (holding that “the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression”); accord Arkansas Writers’ Project, 481 U.S. at 230; FCC v. League of Women Voters, 468 U.S. 364 (1984); see also Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) (observing that government “may not design a subsidy to effect [a] serious and fundamental restriction on advocacy”). Cf. Frederick Schauer, Principles, Institutions, and the First Amendment, 112 Harv. L. Rev. 84, 102 (1998) (“It is, of course, unconstitutional for the state to condition tax exemptions, welfare benefits, and some forms of non-policy public employment on refraining from engaging in otherwise protected speech unrelated to the purpose of the governmental program. But what looks like an unconstitutional condition from one angle may look strikingly like government speech, or government support of its own activities and policies, from another.”).
73 502 U.S. at 115.
74 357 U.S. 513 (1958).
75 Id. at 518.
76 See Simon & Schuster, 502 U.S. at 117–18 (quoting Arkansas Writers’ Project, 481 U.S. at 231).
77 461 U.S. 540 (1983).
78 Id. at 546.
79 Id. at 545.
80 See id. at 549 (rejecting as “not the law” the argument “that strict scrutiny applies whenever Congress subsidizes some speech, but not all speech”); id. (“We have held in several contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.”).
81 Id. at 550.
82 See Arkansas Writers’ Project, 481 U.S. at 228; accord Simon & Schuster, 502 U.S. at 117; Lethers v. Medlock, 499 U.S. 439, 463 (1991).
83 See Rosenberger, 515 U.S. at 830 (rejecting the argument that the First Amendment bars only “ideologically driven attempts to suppress a particular point of view”); R.A.V., 505 U.S. at 391–92.
84 There are some statements to that effect in the Court’s opinion in TWR, but they are oblique, seem to focus on the absence of discriminatory intent, and appear in the equal protection portion of the Court’s analysis. See 461 U.S. at 548 (“We find no indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect. The sections of the Internal Revenue Code here at issue do not employ any suspect classification.”). As noted in the text, the absence of discriminatory intent or motive does not insulate content-based discrimination from challenge under the First Amendment.
85 515 U.S. 819, 834 (1995).
86 It is not my position, however, that the campaigning restriction is viewpoint-based, as the restriction applies to statements supporting or opposing candidates. 26 U.S.C. � 501(c)(3).
87 Michael McConnell has described this notion as one of “political disestablishment.” See generally Michael W. McConnell, Political and Religious Disestablishment, 1986 BYU L. Rev. 405 (1986).
88 See Everson v. Bd. of Educ., 330 U.S. 1, 28 (1947) (Rutledge, J., dissenting) (quoting the Virginia Bill for Establishing Religious Freedom (1786)).
89 For constitutional purposes, I have no quarrel with the proposition that a tax exemption is a form of “subsidy.” See Regan, 461 U.S. at 544 (“Both tax exemptions and tax-deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income.”). But cf. Edward A. Zelinsky, Are Tax “Benefits” for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities?, 42 B.C. L. Rev. 805 (2001) (“In the final analysis, tax exemption does not subsidize churches, but leaves them alone.”); id. at 837 (“An exemption is a subsidy only if it deviates from a normative tax base. . . . The reflexive invocation of the ‘subsidy’ label, explicitly or implicitly, thus assumes away the key issue, i.e., whether tax exemption is a proper acknowledgment of the sovereignty of sectarian institutions. If so, the resulting tax benefits are not subsidies since they implement, rather than deviate from, a normative tax base.”). Such an understanding of subsidies accords with the notion that the denial of a benefit may constitute a penalty. See, e.g., Speiser, 357 U.S. at 513; Simon & Schuster, 502 U.S. at 117-18. And what matters most is that terms such as “subsidy” and “exemption” are used consistently (i.e., with reference to a consistent baseline). See generally William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968).
That said, treating “exemptions” as “subsidies” has certain statist connotations, since it seems to presume that everything that is not taxed is not taxed as a matter of legislative grace. Moreover, I question whether most Americans think of tax exemptions as subsidies, and the Supreme Court itself has rejected the notion that a religious organization’s participation in a generally available tax exemption amounts to a “subsidy” of that organization for Establishment Clause purposes. See Walz v. Tax Comm’n, 397 U.S. 1, 674–75 (1970) (“Granting tax exemptions to churches necessarily operates to afford an indirect economic benefit and also gives rise to some, but yet a lesser, involvement than taxing them. . . . The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state.”). Resolution of this issue, however, is beyond the scope of this Article.
90 431 U.S. 209, 234 (1977).
91 Id. at 235-36. The Court’s ruling also rested on its conclusion that much of the expressive political activity of the union was not “germane” to its purpose as exclusive bargaining representative of the employees. Id. at 235. This standard has proven difficult to apply. See Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991); see also Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 232 (2000) (noting the Court’s “difficulties” in determining “what expressive activity was or was not germane to the mission of the association”).
92 496 U.S. 1, 16 (1990).
93 529 U.S. 217 (2000).
94 Id. at 221.
95 Id. at 227.
96 Id. at 223.
97 Id. at 231.
98 Southworth, 529 U.S. at 232.
99 Id. at 231, 229.
100 Id. at 233.
101 See “Tax-Exempt Entities” and “Other Entities,” listed on the Exempt Organization Business Master File, by Type of Organization and Internal Revenue Code Section, Fiscal Years 1996-1999, 1999 IRS Data Book, available at http://www.irs.gov/ prod/tax_stats/ soi/other_ia.html (File No. 99DB27EO.XLS) (Table 26) (visited June 19, 2001) (noting the approval of 52,773 applications for tax-exempt status as 501(c)(3) corporations).
102 See Southworth, 529 U.S. at 232.
103 A discussion of the Establishment Clause dimensions of this issue is beyond the scope of this Article. See generally Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987) (holding that provisions that single out religious entities for a special exemption or benefit must relieve a burden on religious exercise).
104 Related to the government’s interest in preventing deductions for contributions to political candidates is its interest in regulating efforts to influence the political process for private gain. This is sometimes referred to as an interest in preventing “corruption.” See generally Buckley v. Valeo, 424 U.S. 1, 26 (1976) (discussing the state’s interest in preventing corruption and the appearance of corruption). For example, the Supreme Court has held that Congress may constitutionally regulate campaign contributions on the theory that they unduly influence politicians (and thus threaten the integrity of the democratic process). See id. (“To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.”); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) (expressly reaffirming Buckley). The prospect of candidates vying for endorsements of influential tax-exempt organizations could potentially raise similar issues. See 78 Cong. Rec. 5861 (1934) (statement of Sen. Reed) (describing the lobbying restriction as designed to restrict charitable donations “made to advance the personal interests of the giver of the money,” but conceding that the restriction went “much further than the [Committee on Finance] intended”).
105 I am not suggesting that a church is not functioning as a church simply because it is engaged in political activity. See supra Part II. My point is simply that the church’s religiously motivated political activities may nonetheless be subject to regulation, depending upon the strength of the state’s public policy interests.
106 It is established that expenditures on political activities such as lobbying are subject to taxation in various circumstances. See Cammarano v. United States, 358 U.S. 498, 512-13 (1959) (rejecting First Amendment challenge to provision disallowing the deduction of lobbying expenditures as business expenses); cf. Buckley, 424 U.S. at 26.
107 26 U.S.C. � 501(c)(3) (1994).
108 Cf. Luke 13:32 (wherein Jesus Christ refers to King Herod as a “fox”).
109 I have elsewhere argued that holding someone out as a leader itself conveys a message that one approves of that person’s character. See Johnson, supra note 53, at 1662–64.
110 26 U.S.C. � 501(c)(3).
111 Id.
112 See Buckley, 424 U.S. at 26 (expressing concern regarding the existence of “large contributions . . . given to secure a political quid pro quo from current and potential office holders . . . .”).
113 See, e.g., Mark 10:17–23; Isaiah 61:1–3.
114 Cf. Good News Club v. Milford Cent. Sch., 121 S. Ct. 2093, 2099 (2001) (“We disagree that something that is ‘quintessentially religious’ or ‘decidedly religious in nature’ cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint.” (emphasis added)).
115 It merits reemphasis that however great the government’s interest in requiring tax-exempt churches to refrain from campaigning—an issue, I have noted, about which people can reasonably disagree—the basis for that interest cannot be that churches have no legitimate interest in participating in the political process. See supra Part II and accompanying text; see also Garnett, supra note 40, at 783-93 (arguing that it is not within the competence of government to define the proper scope of the religious sphere). Rather, the government’s interest in regulating the political campaign activity of churches is valid only to the extent that it applies to all tax-exempt entities that engage in such activity.
116 See Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000) (upholding revocation of the tax exemption of a church that placed full-page advertisements in USA Today and the Washington Times urging opposition to then-Governor Bill Clinton’s presidential candidacy and soliciting contributions for further advertisements); Christian Echoes Nat’l Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir. 1972) (upholding revocation of the tax exemption of an organization that used broadcasts to criticize incumbents and candidates).
117 See Deirdre Dessingue, Prohibition in Search of a Rationale: What the Tax Code Prohibits; Why; To What End? 42 B.C. L. Rev. 903, 928-29 (2001).
118 An “excess benefit transaction” is one in which a tax-exempt corporation provides an economic benefit for the use of certain “disqualified persons,” such as those who are (or recently were) “in a position to exercise substantial influence over the organization.” See 26 U.S.C. � 4958 (1994).
119 Id.
120 See generally Excise Taxes on Excess Benefit Transactions, 66 Fed. Reg. 2144, 2155 (Jan. 10, 2001).
121 H.R. Rep. No. 104-506, at 59 n.15 (1996) (“In general, the intermediate sanctions are the sole sanction imposed in those cases in which the excess benefit does not rise to a level where it calls into question whether, on the whole, the organization functions as a charitable or other tax-exempt organization. In practice, revocation of tax-exempt status, with or without the imposition of excise taxes, would occur only when the organization no longer operates as a charitable organization.”).