Rendering a Taxing New Tide on I.R.C. § 501(c)(3): The Constitutional Implications of H.R. 2357 and Alternatives for Increased Political Freedom in Houses of Worship

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I. INTRODUCTION

Houses of worship have been a fixture in America's sociopolitical process since our quest for independence, and they surely will continue to play an important role in both mainstream and alternative methodologies.1 Indeed, the nation's courts and laws have worked to uphold the rights of religious entities-and all charitable organizations-to participate in the political process, and simultaneously to uphold the separation of Church and State that protects sacred entities from government intrusion, and the government from delicate religious entanglements.2 However, questions continue to abound regarding the exact nature and scope of political activity in which houses of worship may participate, particularly in light of the emergence of the Religious Right in the mid-1980s.3

Such questions have increased greatly thanks to the Houses of Worship Political Speech Protection Act,4 ("H.R. 2357") sponsored by U.S. Representative Walter B. Jones (R-North Carolina). The legislation would allow tax-exempt houses of worship to intervene directly in partisan political campaigns by endorsing and opposing candidates for public office.5

Because there was no likelihood that the Senate would consider this piece of legislation before the 107th Congress adjourn[ed], Jones asked that it be brought before the House under a "suspension of the rules," a parliamentary procedure that can be used to expedite consideration of legislation, but which requires a two-thirds vote for passage.6

Although the bill was defeated by a vote of 239 to 178, Jones promised his supporters, "the very first day of the 108th Congress, my very first action will be to re-introduce the [Act] . . . we will win this battle."7

If the Jones legislation is eventually passed, will it pass constitutional scrutiny under the religion clauses of the First Amendment of the United States Constitution, or will it be considered overbroad because it would give houses of worship a power that other tax-exempt organizations would still lack? There is no question that the religion clauses of the First Amendment permit church leaders to engage in various sociopolitical matters from the pulpit in light of the Supreme Court's previous holdings regarding a "profound national commitment to the principle that debate on public issues . . . be uninhibited, robust, and wide-open."8 The line between Church and State is blurred as supporters discuss the restoration of the church's First Amendment rights, empowering preachers to discuss politics freely.9 Opponents say the bill would politicize congregations, and create rifts between religious leaders and congregations.10

Despite Representative Jones's and other conservative legislators' views to the contrary, the political activity prohibition does not need to be removed from Internal Revenue Code § 501(c)(3)11 because the Internal Revenue Service ("IRS") already permits churches and other nonprofit organizations to engage legitimately in a variety of sociopolitical and moral issues that receive substantial protection under the First Amendment. Church and State must remain separate from one another to serve the interests of religious freedom and societal pluralism, and this does not include the direct intervention of churches in electoral politics. Although the current federal election laws offer better alternatives to remedying potential flaws in the political activity prohibition than the Jones legislation, my analysis will ultimately reveal that the imposition of the political activity prohibition should remain as it currently is written in the Internal Revenue Code.

The first section of this Note will trace the history of (and challenges to) the political activity prohibition and the reasons why then-Senator Lyndon Baines Johnson sought its inclusion in the Internal Revenue Code. This will lead to a general discussion of the political emergence of the Religious Right in the early 1980s, with a particular emphasis on its agenda and how that agenda was incorporated into H. …