Understanding the Lobbying Efforts of a Church: How Far Is Too Far?

I do not know whether all the Americans have a sincere faith in their religion,- for who can search the human bearti - but I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a class of citizens, or to a party, but it belongs to the whole nation, and to every rank of society. Alexis de Tocqueville1 I. INTRODUCTION The same song plays on the jukebox. It's the one that comes on every four years or so, beginning with thundering from small-town pulpits, reverberating in media channels, even finding its way to the annals of various law reviews. But the tune dies on the lips of Internal Revenue Service agents; barely an echo can be heard in the federal courts. The tune of the § 501(c)(3) lobbying restriction may become a bit catchier if it were clear exactly what it meant. That clarity can be provided by understanding and then perhaps modifying the lobbying restriction on religious organizations that currently exists under § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). Such a modification to the lobbying restriction is both feasible and practical. Feasible, because courts have recognized the ability of government to restrict the lobbying activities of churches.2 Practical, because (1) a modification would provide a safe harbor to churches that are "chilled" from entering the political arena under the current framework,3 and (2) it would allow for better enforcement. Religion, as de Tocqueville and others have recognized, plays an essential role in defining American Democracy. But how expansive should that role be and what restrictions, if any, should be imposed? These questions are particularly acute in the context of politics because religious issues often arise in political situations. For example, the elections of 2008 included referendums on gay marriage,4 the adoption of children by gay couples,5 stem cell research,6 and limits on abortion.7 On one hand, what is at stake for churches is the preservation of the moral fabric of society. On the other hand, at least from a tax perspective, they risk the potential loss of tax-exemption status under § 501. 8 This Comment focuses on how to best address the tension between a church's right to free speech and the potential for excessive entanglement between church and state through the lobbying restriction. An analysis of the origin of the lobbying restriction demonstrates that Congress has placed a meaningful restriction on church activities. Although a restriction on church lobbying helps prevent excessive entanglement between church and state, the restriction's ambiguity makes adequate enforcement by the Internal Revenue Service ("IRS" or the "Service") difficult and at the same time discourages lobbying that would be beneficial for the church and society. A two-tiered approach - the first tier drawing clear lines to encourage some lobbying and strengthen enforcement and the second tier incorporating elements of the current approach to help prevent avoidance - is a possible solution. Part II of this Comment discusses the background of the lobbying restriction on religious organizations and how lobbying, even in furthering a tax-exempt purpose, can violate the law. Part III evaluates whether any type of restriction on lobbying by churches is necessary, or alternatively, whether there should be an absolute restriction on lobbying. Part IV discusses whether the current framework applies the correct approach to churches. Part V evaluates possible alternatives to the current approach. Part VI offers a brief conclusion. II. BACKGROUND Many churches see the need to advocate moral reforms through government policies.9 But just because churches are not lobbying for economic gain, and rather are attempting to improve society, does not necessarily shield churches from the § 501(c)(3) restraint on lobbying. By definition, a charity that qualifies for tax exemption - regardless if it is a religious organization - is not in business to derive a profit. …