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Self-directed tax plan could allow churches to participate in politics

A Florida law professor has a solution to the controversial ban on political activities for churches

My head hurts thinking about the ban on political activities for charities, especially when churches are involved. The mix of politics and religion is lethal to more than just family gatherings. It is a death knell for rational debate whenever the two subjects arise, as they do when pastors endorse candidates from the pulpit.

The mix is so toxic that the IRS seems stymied. When it warns churches each election cycle about making endorsements or hosting candidates, the churches claim their First Amendment rights of speech and religion are under attack. If the IRS does not act to rein in the preachers, equally strong voices declaim against a government subsidy of political activity (through a tax exemption), against an unconstitutional establishment of religion (again, through the church’s tax exemption) and against favoritism of churches over other charities. The discussion usually ends there and nothing changes.

But now, somebody has thought outside the box. He is W. Edward Afield III, a law professor at a Catholic law school in Florida, and he has an idea for a new tax on charities that could be a path out of the polemical morass. He describes it all in the Nevada Law Review. His basic idea is to lift the ban on politicking for churches (and any other charities) that agree to pay tax on their incomes. Taxing churches is usually a lead balloon kind of idea, so Afield tweaks it by allowing the church to tell the government how to spend the tax money it pays. For example, a church might agree to be taxed, but only if the taxes were used to pay for health care or to feed the hungry or to support another church-supported activity. He calls this a “self-directed tax.”

His plan gets a bit more involved because he wants to keep the income tax deduction for donors to the now tax-paying churches. I guess he fears, reasonably, that donations would decrease without it, which would, in turn, mean less income for the church, less tax to the government and less funding for the church’s chosen federal programs. So, he tweaks the taxdeductible donations by also making them self-directed. In other words, when I donate to the church (or other charity), I can direct that the income tax paid on my donation be spent by the government for certain programs, just as the church can.

No doubt there are significant problems with Afield’s modest proposal, and you’ve probably already got a list in mind of your own as you read this. But the huge appeal of this out-of-the-box thinking is that with only one or two strokes of the tax writing pen, it sweeps away (or nearly so) the fundamental constitutional and policy complaints about the current inadequate system.

If a church is paying taxes, no one can argue that it is being subsidized by the government. (I’m ignoring the church’s point that the exemption is not a subsidy from the get-go because that point is lost in the emotional debate anyway.) If the church is not getting a tax break, no one can argue that we’ve taken even a single step toward “establishing” a government religion. Finally, if a church can preach politics from the pulpit without fear of government reprisal, no one can claim the church’s First Amendment rights of speech and religion are infringed. What is there left to complain about? Fundamentally, I mean.

We can argue about whether the proposal is revenue neutral, for example, and whether it should be. Or the difficulties of linking up both donors’ and churches’ “self-directed” tax choices with those of the government. Or even whether the right of a church to direct its tax payments is enough of an offset to the burden of taxation in the first place. The main point, to me, is that the debate is not only unclogged, it is shifted to the middle ground where almost all political questions are resolved. Let the talking begin.

Bruce D. Collins is corporate vice president and general counsel of C-SPAN, based in Washington, D.C. Email him at collins@c-span.org.

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