Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice

Distributive justice plays a starring role in many fundamental tax policy debates, from the marginal rate structure to the choice of base to the propriety of wealth transfer taxes. In contrast, current tax scholarship on the charitable tax subsidies generally either ignores or explicitly disavows distributive justice concerns. Instead, it focuses on the efficiency and pluralism-enhancing advantages of having charities provide public goods instead of or in addition to the government. While identifying these advantages is a necessary and important contribution to our understanding of charitable giving policy, avoidance of distributive justice concerns ignores the very purpose of charity: voluntary redistribution. After all, it’s called the charitable deduction, not the public goods deduction. As a result, the current body of work on the charitable tax subsidies is incomplete: it purposely under-theorizes what is “good” for society in order to avoid making value judgments about which projects should be subsidized. Although this sounds appealing, completely avoiding such judgments is both impossible and counterproductive. Current scholarship thus excessively under-theorizes the good, creating confusion about the charitable tax subsidies in both theory and practice. Explicitly addressing distributive justice—in addition to pluralism and efficiency—will enhance our understanding of the subsidies for three reasons. First, existing scholarship is incomplete and inconsistent for  Associate Professor, University of Colorado School of Law. I would like to thank Anne Alstott, Ellen Aprill, Rob Atkinson, Lily Batchelder, John Colombo, Victor Fleischer, Henry Hansmann, Heidi Hurd, Mitchell Kane, Lloyd Mayer, Katie Pratt, Rob Reich, Adam Rosenzweig, Pierre Schlag, Richard Schmalbeck, Ted Seto, Dan Shaviro, Larry Solum, Peter Wiedenbeck, Ekow Yankah and Larry Zelenak for insightful comments, as well as participants in the 2007 Junior Tax Scholars‘ Workshop; the May 2008 University of Illinois Center on Law and Philosophy Roundtable on Philanthropy, Distributive Justice and Morality; the 2008 AALS Panel on Non-Profits and Democracy; and workshop participants at Chicago-Kent, Loyola-Los Angeles, the University of San Diego, and Washington University in St. Louis. I would also like to thank Scott Bienek, Katherine Chamberlain, and Ben Christenson for wonderful research assistance, and the University of Illinois Summer Research Grant Program, which financed most of this project. Washington University Open Scholarship 506 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 87:505 generally ignoring distributive justice issues. It is incomplete because it does not adequately identify which projects deserve a subsidy; it is inconsistent because it implicitly contains value judgments that have distributive justice implications but that are unacknowledged (and often disavowed) by their proponents. Second, popular criticisms of the charitable tax subsidies raise distributive justice issues that have not been adequately addressed. And lastly, the law governing the charitable tax subsidies is itself confused on the role of distributive justice. Extending our understanding of the subsidies in this manner has three benefits. First, it will help the efficiencyand pluralism-minded scholars better address how to structure the tax subsidies to best promote efficiency and pluralism. Second, a better understanding of distributive justice will help us assess existing justice-related criticisms of the subsidies. And lastly, because our society currently spends a great deal of resources subsidizing charity, such a discussion will help us allocate our resources in a more systematic fashion. A cynic is a man who Knows the price of everything And the value of nothing —Oscar Wilde