In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the IRS was to revoke its exemption.
While simple in theory, in practice, the IRS rarely penalizes churches that violate the campaigning prohibition and virtually never revokes a church's tax exemption. And, because no taxpayer has standing to challenge the IRS's inaction, the IRS has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.
This Article makes the normative case that, notwithstanding the IRS's administrative discretion and the inability of taxpayers to challenge its nonenforcement in court, the time has come for the IRS to begin enforcing the campaigning prohibition. Failing to do so harms the rule of law, the taxpaying public, and churches themselves. Moreover, the moment is correct for enforcement, as the difficulty and cost of finding violations has fallen dramatically over the last several years. People are more aware than ever that churches are violating the prohibition, and, in the aftermath of the Supreme Court's Citizens United decision, the campaigning prohibition may represent the final regulatory barrier between charities and politicking.
Even if enforcing the campaigning prohibition is the right thing to do, it would potentially be unpopular and could provoke a backlash against the IRS. After making the normative case for enforcement, this Article provides a strategy for enforcement that will allow the IRS to explain what it is doing and why to the general taxpaying public, and will further permit the IRS to avoid the appearance of partisanship. Ultimately, enforcement will allow the IRS to responsibly administer the tax law, permit the question of the prohibition's constitutionality to get in front of the judiciary, and demonstrate dedication to the rule of law.
Samuel D. Brunson,
Dear IRS, It Is Time to Enforce the Campaigning Prohibition. Even Against Churches,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol87/iss1/4