This is not censorship

Apparently, a bunch of preachers plan on endorsing candidates from the pulpit today, intentionally endangering their congregations' tax-exempt status. 

This stunt is designed to challenge the "censorship" of the Internal Revenue Code. You see, churches, like all other organizations exempt from taxation under Sec. 501, are not allowed to engage in political advocacy if they want to maintain their tax-exempt status.  This has, from time to time, been labelled government "censorship".  The author of the piece I quote claims it violates the first amendment.

Except that it doesn't.  There is absolutely nothing in the tax law that prohibits any kind of speech.  What the tax law does do is offer certain types of organizations that Congress has defined as being formed without a profit motive for the public good an exemption from taxation as a matter of legislative grace. If it were not  for this provision, every non-profit, including churches, would be subject to income taxes.

In exchange for this rather wonderful benefit, Congress asks these organizations to make some trade-offs. One of those trade-offs is to refrain from partisan political activities.  Whether you think this is good policy or not, the idea that it's "censorship" or violates the First Amendment is just loony.  Censorship is taking active steps to prevent certain viewpoints from getting out.  The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Presumably the author thinks that stripping tax-exempt status from churches violates either the establishment of religion clause (though I doubt this) or, more likely, the freedom of speech clause.  How, exactly though, are either clause violated here?  Certainly denying tax-exempt status doesn't lead to an establishment of religion.  Nor does it prohibit the free exercise of religion. Even if you believe that supporting a candidates is part of your religion, no one's telling you that you can't do that. There just saying that if you do, you can't be exempt from tax. Being exempt from tax isn't a right, it's a privilege that Congress doesn't have to offer. The same goes for the free speech clause. No one's telling you what you can and can't say. They are saying that if you perform certain types of speech, we're not going to give you this benefit.

Again, you can reasonably differ on whether or not this is good policy, but offering people a benefit if they refrain from certain activities isn't censorship or a violation of their rights.  It's making a deal with them. If they don't want the deal, that's fine. They can do whatever they want.

If these ministers believe that speaking their mind is more important than their congregation being exempt from tax, then they should give up their tax-exempt status. These people though want the benefits of the deal without doing their part.

Update: Glenn Reynolds makes a similar point.  He would deal with the whole issue by chunking tax-exempt status completely (or keep it for only those providing direct services).  Personally, I find the idea of taxing churches distasteful, but that's hardly a policy position.

Another Update: David Heddle isn't impressed either.

Comments

[Mean Dean]

Wow, I blogged about this situation just this past Friday - glad to see I'm not the only one who sees the "Pulpit Initiative" as financially suicidal 'die by the sword' recklessness.