* Professor of Law, Boston University School of Law.
1 I.R.C. � 501(c)(3) (1986).
2 See generally Henry B. Hansmann, The Role of Nonprofit Enterprise, 89 Yale L.J. 835, 835 (1980).
3 The Internal Revenue Code separately imposes excise taxes on amounts paid by private foundations to influence legislation or to influence any election. The definition of private foundations excludes churches. See I.R.C. � 4945 (1986).
4 Regan v. Taxation with Representation, 461 U.S. 540, 545–46 (1983); see also Cammarano v. United States, 358 U.S. 498, 513 (1959).
5 Taxation with Representation, 461 U.S. at 545–46.
6 Christian Echoes Nat’l Ministry, Inc. v. United States, 470 F.2d 849, 854–55 (10th Cir. 1972). Congress later allowed certain exempt organizations to elect to engage in lobbying activities deemed insubstantial, as measured by the organization’s expenditures for that function. See I.R.C. � 501(h) (1986). The legislation excluded churches and related organizations from the election, on the ground that church groups had raised objections based on First Amendment rights. The legislative history specifically said that Congress had neither approved nor disapproved the statements or holdings of the Christian Echoes case. Staff of Joint Comm. on Taxation, 94th Cong., General Explanation of the Tax Reform Act of 1976 at 415–16, reprinted in 1976–3 C.B. 1, 427–28 (vol. 2).
7 Branch Ministries v. Rossotti, 211 F.3d 137, 145 (D.C. Cir. 2000), aff’g 40 F. Supp. 2d 15 (D.D.C. 1999).
8 Id. at 140.
9 See I.R.C. � 7611 (1986).
10 Branch Ministries v. Rossotti, 211 F.3d 137, 145 (D.C. Cir. 2000), aff’g 40 F. Supp. 2d 15 (D.D.C. 1999).
11 See id. at 142–44.
12 The court cited Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 391 (1990) and Hernandez v. Comm’r, 490 U.S. 680, 700 (1989) for this proposition.
13 See Branch Ministries, 211 F.3d at 142.
14 Id. at 144–45.
15 Id. at 144.
16 Id. at 144–45.
17 See id. at 142–44.
18 Treas. Reg. � 1.501(c)(3)–1(c)(3)(1990) defines the term “action organization” to include entities a substantial part of the activities of which include lobbying or which participate in election campaigns.
19 Deductibility, although not as charitable gifts, sometimes may be available for donations to certain exempt organizations, such as chambers of commerce. Treas. Reg. � 1.162–28 (1995) requires allocation of expenses to nondeductible lobbying activities.
20 See 461 U.S. 540, 552–54 (1983) (Blackmun, J., concurring).
21 Treas. Reg. � 1.501(c)(4)–1(a)(2)(ii)(1990).
22 For example, special postal rates.
23 See Hernandez v. Comm’r, 490 U.S. 680, 689–92 (1989).
24 Section 504 bars an organization formerly treated as exempt under section 501(c)(3), but which lost its exemption by reason of political activity, from qualifying for exemption under section 501(c)(4). Section 504(c) contains a special exception for churches. Treas. Reg. � 1.501(h)–3(d)(1990) allows an organization that lost its section 501(c)(3) exemption because lobbying was a substantial activity to reapply for exemption in any taxable year after the first year in which exemption was denied.
25 211 F.3d at 142.
26 I.R.C. � 508(c)(1)(A) (1986).
27 Boris I. Bittker & George K. Rahdert, The Exemption of Nonprofit Organizations from Federal Income Taxation, 85 Yale L.J. 299, 299 (1976); Evelyn Brody, Of Sovereignty and Subsidy: Conceptualizing the Charity Tax Exemption, 23 Iowa J. Corp. L. 585, 585 (1998).
28 See William D. Andrews, Personal Deductions in an Ideal Income Tax, 86 Harv. L. Rev. 309, 344–75 (1972). See generally Edward A. Zelinsky, Are Tax “Benefits” for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities, 42 B.C. L. Rev. 805 (2001).
29 For a description of recent electoral practices, see generally Randy Lee, When a King Speaks of God, When a God Speaks to a King: Faith, Politics and the Constitution in the Clinton Administration, 63 Law & Contemp. Probs. 391 (2000).
30 211 F.3d 137 (D.C. Cir. 2000).
31 397 U.S. 664, 673–77 (1970).