Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal

Already at this point it should be apparent that [section] 501(c)(3) does not simply confine "nonprofits." This anodyne label may suffice for calculating taxes, but not for evaluating the constitutional questions. More to the point constitutionally, [section] 501(c)(3) targets idealistic organizations for restrictions on their freedom of speech and petitioning. Nonprofits--especially religious, educational, and charitable organizations--are devoted to pursuing ideals, in contrast to profit or other selfish interests. Section 501(c)(3) thus generally targets idealistic organizations, in contrast to business, labor, and other organizations representing types of self-interest. The idealistic organizations that matter here are religious. In singling out religious organizations for restrictions on their petitioning and political speech, [section] 501(c)(3) limits the ability of many religious Americans to bring their religious concerns into politics. The section excludes churches from the political process and it thereby also excludes Americans who rely on their churches to protect their religious interests in the political realm. (95) Of course, notwithstanding [section] 501(c)(3), many churches and other idealistic organizations do their best to participate in politics. In a 2004 IRS study of one hundred and ten [section] 501(c)(3) organizations, it became apparent that 68% had engaged in prohibited campaign activities. (96) Most violations, however, were innocent. For example, many violations were based on misunderstandings of IRS interpretations or were anomalous or were promptly corrected after they were pointed out. (97) In other words, where the IRS interpretations were clear to the organizations, they usually complied. (98) The study thus actually confirms the degree to which churches and other idealistic organizations are constrained by [section] 501(c)(3). To the extent the law is clear, it largely keeps them from campaigning or substantially petitioning. Both in law and in reality, [section] 501(c)(3) substantially excludes such organizations from central modes of political participation. B. Justifications Of course, there are considerations that may seem to justify [section] 501(c)(3)'s restrictions. These considerations are familiar from the constitutional debate over the section, and they cannot excuse the section's violations of the First Amendment. (99) Yet even if they were persuasive on the constitutional question, they cannot explain away the exclusion. Merely Conditions on Spending. A standard constitutional justification for [section] 501(c)(3)'s constraints is that they are merely conditions on spending. The conditions argument, however, does not show the constitutionality of the speech and petitioning restrictions, and more to the point here, it does not justify the exclusion. As will be shown in detail elsewhere, [section] 501(c)(3)'s limits are grossly unconstitutional. (100) They sweepingly restrict speech and petitioning by religious and other idealistic organizations, regardless of the amount of the supposed subsidy, and even when there is no subsidy. They therefore are grossly disproportionate and nongermane and thus are precisely the sort of conditions that Supreme Court doctrine treats as unconstitutional. (101) Accordingly, notwithstanding that the Supreme Court has upheld [section] 501(c)(3)'s restriction on petitioning, it is difficult to understand how its petitioning and speech restrictions are really constitutional. (102) Imagine that the government actually offered money to churches and other idealistic organizations on account of their public service, but required in exchange that they silence themselves in campaigns and substantially in petitioning. This clearly would be unconstitutional, but it at least would leave churches free to speak without a direct penalty. Section 501(c)(3), in contrast, is much worse, for it gives churches and other idealistic organizations a choice between silence or paying a tax--indeed, a choice between silence or paying a tax to which they otherwise have never been subject. …