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Bench Memos

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Correcting a Bad Mistake



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One thing seems to be certain in the world of blogging–well, at least for me: the speed at which one produces copy that is (for the most part) unseen by others before publication means that sooner or later, one will get something badly wrong.  Here’s my turn, and my error is compounded by the foolish pride I took in presuming to correct others, when I was wrong myself!  I owe Bench Memos readers, and the editors of Bloomberg View and NRO, an apology for an error in a posting here nearly two months ago, titled “Everything You Own Is a Gift of the State.”

In it I criticized a Bloomberg View editorial that cited the tax law provision that says churches and other nonprofits may not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for political office.”  I claimed, wrongly, that the words just quoted came not from the governing statutory provision of the tax code but were a gloss on 25 U.S.C. §501(c)3 contained in IRS regulations.  Nope, the words were in fact straight out of the tax code itself, as I should have known, as I probably did know on any other day, and I cannot think now how I came to think otherwise on October 4, nor how I failed to correct myself soon afterwards.  Ouch.  This must be a hat trick for boneheadedness, and I hope no one relied on me for information based on that posting.  I will certainly take more care in future.

I do stand by the rest of my point from that day, that there is something bizarre about the argument Bloomberg’s editors made that the tax exemption for churches and other nonprofits must be conditioned on their refraining from political speech, or else taxpayers would be “subsidizing” their politics.  This, as I noted, is tantamount to saying that every penny the government does not take from us in taxes is actually a gift from the state to us.

I will also take this occasion to note that the Freedom From Religion Foundation is suing the IRS for not vigorously enforcing the exemption conditions of Section 501(c)3; that the Alliance Defending Freedom has been trying to get a case going that would result in the invalidation of this infringement of freedom of speech and religion; and that ADF’s Erik Stanley has published an excellent recent article exploring the reasons this statutory provision should be found unconstitutional, and discussing the tangled mess the IRS has made.



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