One of the lawsuits the FFRF has going is against the IRS for failing to enforce the law that forbids churches (and every other non-profit organization) from endorsing candidates in elections. The federal judge in that case has allowed a church to intervene and add itself as a defendant in that case.
Section 501(c)(3) of the Internal Revenue Code exempts entities that are organized and operated exclusively for religious, charitable, scientific, or other specified purposes from having to pay federal income taxes. A condition of this exemption is that the entity not participate or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office. 26 U.S.C. § 501(c)(3). The plaintiff in this case, the Freedom from Religion Foundation, alleges that the Internal Revenue Service has a policy of not enforcing this condition to tax-exempt status against churches and religious organizations. At the same time, the Foundation alleges, the IRS enforces the condition against other tax-exempt organizations. The Foundation, which is itself a § 501(c)(3) organization, contends that the IRS’s policy of disparate treatment violates its rights under both the Establishment Clause and the equal-protection component of the Due Process Clause of the Fifth Amendment. For relief, the Foundation seeks a declaratory judgment stating that the IRS’s alleged policy of providing preferential treatment to churches and religious organizations is unlawful, as well as an injunction requiring the IRS to abandon that policy. The IRS denies that it has a policy of not enforcing § 501(c)(3)’s electioneering restrictions against churches and religious organizations.
Before me now is a motion to intervene filed by Father Patrick Malone and the Holy Cross Anglican Church. The church is a tax-exempt organization that does not obey the electioneering restrictions of § 501(c)(3). In particular, Father Malone, the vicar of the church, regularly makes statements during worship services and church gatherings in which he urges members of the congregation to vote for or against certain candidates for public office. Id. ¶¶ 11–12, 20. So far,however, the IRS has not taken any action in response to the church’s activities. Id. ¶ 29. But the church and Father Malone are concerned that if the Foundation obtains the relief it seeks in this lawsuit, then the IRS will be required to “punish” them for having engaged in political activity. Id. ¶¶ 25–26. Thus, the church and Father Malone claim that they have an interest in this suit and seek to intervene as defendants. They seek intervention as of right under Federal Rule of Civil Procedure 24(a)(2) or, in the alternative, permissive intervention under Rule 24(b)(1)(B). If allowed to intervene, the movants would argue that they have a legal right to participate in political campaigns without forfeiting their tax-exempt status. The movants contend that their position is supported by the Religious Freedom Restoration Act (“RFRA”) and the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment.
Still, in litigating this lawsuit, the Foundation will advance legal arguments that if accepted would impair or impede the movants’ interests. The Foundation intends to argue that any policy of non-enforcement of § 501(c)(3)’s electioneering restrictions against churches and religious organizations violates the Establishment Clause. The movants contend that the IRS’s enforcing those restrictions against churches and religious organizations would violate the Establishment Clause. So if the Foundation prevails, a cloud would be cast over the movants’ argument that the Establishment Clause prevents the IRS from enforcing the electioneering restrictions against churches and religious organizations. The movants should be permitted to intervene in this case for the purpose of protecting their argument.
This is really interesting. It transforms the case a bit. Rather than being a challenge to the IRS’ non-enforcement of that law, it now becomes a case about whether the electioneering restrictions in the IRS code are constitutional at all. And frankly, I’ve got mixed feelings on that question. I don’t really see a good argument for why non-profits should not be allowed to endorse candidates, whether they are churches or not. And there’s so many loopholes in the law that it’s essentially worthless. The churches, and lots of other non-profits, do endorse candidates even if they don’t do it explicitly, and everyone knows it. They do it by putting out “voter guides” with a list of issues that they care about and a rating of the candidates on those issues. It’s an endorsement without an endorsement.