Bench Memos

Everything You Own Is a Gift of the State

That, at least, is the position taken by the editors of Bloomberg View.  In an unsigned editorial dated yesterday, they comment on the campaign called “Pulpit Freedom Sunday” (scheduled for this Sunday, October 7), in which pastors around the country are encouraged to be as politically candid as they please, up to and including endorsing and opposing candidates for public office explicitly.  According to the Bloomberg editors, this runs afoul of “the law” that grants an exemption from federal taxation to any church that “does not participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for political office.”

You might get the impression that “the law” the editors quote is an act of Congress.  It is not.  It is a set of regulations promulgated by the Internal Revenue Service as a gloss on Section 501(c)3 of the tax code.  And it is this gloss that the pastors involved in the campaign, supported by the seasoned religious-freedom litigators of the Alliance Defending Freedom, mean to challenge, if the IRS has the nerve to take them on.

There are a number of interesting questions here, all of which the Bloomberg editors manage to avoid.  Is the IRS rule restricting the political speech of religious and other charitable and educational nonprofits a reasonable and appropriate interpretation of the bland terms of the relevant statute, which neither say nor imply anything at all about the political activities of 501(c)3 groups?  Could Congress say what the IRS has presumed to say in Congress’s name, without running afoul of the First Amendment’s speech and religion clauses? 

Perhaps the answer to both questions is yes.  It may be that nothing in the freedom of religion demands, in principle, the exemption of churches from taxation.  But the historic tax exemption for churches is not predicated on their being held to some standard of apolitical conduct.  It is predicated on the proposition that freedom of religion is so fundamental, and individual and institutional conscience so precious, that the state has no jurisdiction over churches, the setting in which free consciences find their space and vitality to act.  At least one finds this argument strongly present in a prominent strain of the founders’ thought on freedom of religion.  The state cannot tax churches, in short, because churches make a higher claim on their members than does their allegiance to the state as citizens, and the government of a free republic is formed on a recognition of this principle.

None of these interesting matters occurs to Bloomberg.  Instead the editors indulge the statist (not to say totalitarian) presumption that everything anyone owns, or earns, or is given, is in principle the property of the all-powerful state.  Only on this premise can they bizarrely call the tax exemption for churches “a taxpayer subsidy,” which must not “be used for partisan political activity.” 

By this reasoning, every ordinary citizen who puts a bumper sticker on his car to support Obama or Romney is receiving a “taxpayer subsidy” for his political speech, precisely to the extent that each April 15 he is able to report to the IRS that he is keeping one red cent of his own income.

For Bloomberg View, “[t]his is not a battle for free speech,” because the pastors can of course choose between their free speech on politics or their tax exemptions.  Their point, of course, is to challenge that very proposition, in court if necessary.  But by the Bloomberg editors’ reasoning, the government could monitor all of us to determine what we are saying and doing in the political arena, and raise our taxes according to how “political” we are in word and deed.

No one, of course, can possibly think this way who recalls that the state is our servant, created to represent us, not our master, conjured into being to bend us to its purposes.  Nice to know where Bloomberg stands on this question.


The Latest