Nine years ago in this column I wrote that the tax code ran roughshod over the First Amendment speech and religion rights of charities because it prohibited them from participating in any political campaign on behalf of any candidate for public office. I argued the First Amendment should easily trump a mere line in the tax code in favor of fundamental rights.

Now there's legislation pending in Congress with about 165 co-sponsors in the House that would heed my call, at least for churches. It's called the Houses of Worship Free Speech Restoration Act. As one who accepts the definition of politics as the art of the possible (rather than the ideal), I could hail this legislation as a step in the right direction. Let's give the churches their speech rights; we'll worry about all the other charities later.

But this is a bad bill.

It sounds reasonable, as the bill's advocates say “to free the pulpit” and “to end the absurdity” of the tax code's restriction on the right of thousands of churches and their millions of faithful to participate in campaigns. They say it's foolish to keep churches muzzled as political campaigns increasingly take up issues of morality and faith. “Where is the logic in that?” they ask.

The logic is found, ironically, in the First Amendment itself and in the interplay of other aspects of tax-exempt law. It isn't simple, as I now realize and admit, but it's fair.

The Houses of Worship Act, if passed, would give preferential treatment to religious non-profits. Churches would be able to campaign and endorse candidates, but all other charities wouldn't. Such discrimination against non-religious charities amounts to a blatant violation of the Establishment Clause of the First Amendment. It also violates the equally fundamental guarantee of equal protection under the law provided in the 14th Amendment. Taken together, those are pretty severe obstacles.

Of course, the churches might easily overcome both obstacles were they to advocate for free speech rights for all charities, but they aren't doing that.

Another problem with the bill is more prosaic. It would create an entirely new source of money flowing into political campaigns, a good portion of which would come in the form of an indirect tax subsidy based on the tax deductibility of donations to the churches. Besides running contrary to campaign finance reform legislation by creating another source of so-called “soft money,” it also would likely be politically unsustainable in today's highly partisan climate.

And the bill seeks to solve a problem that isn't quite as dire as its advocates would have us believe. The code doesn't prohibit charities, including churches, from engaging in political activities or advocacy in general, or even litigation to advance their views. The rule only prohibits political campaign activities. This is a subtle, yet significant, distinction. Churches can, and have, spent considerable sums on public education, get-out-the-vote drives to their members and similar political activities during the campaign season. Clearly, they have exercised their First Amendment rights. The pulpit hasn't been muzzled nearly so much as some have claimed.

Yet, when the First Amendment is invoked, few of its adherents, including me, are willing to accept any restraints on speech. Many ministers and priests say they want to be able to “name names” in their sermons to identify the politicians they support or decry. How else, they ask, will their flocks know where they stand? Why can't they name names?

Part of the answer is that naming names is political campaign activity, and current law prevents the churches from participating directly in campaigns. The rest of the answer is that the First Amendment accepts many restraints on speech if they serve an important interest (the prohibition on yelling “Fire!” in a crowded theater, for instance). Given the Establishment Clause and Equal Protection problems alone–not to mention the indirect tax subsidy problem–losing the right to name names from the pulpit seems like a reasonable restraint on tax-exempt churches.

There is an easy solution, however. If a church feels it absolutely must become a religious and political organization, there is nothing in the Constitution or the tax code to prevent it from doing so. It need only give up its tax exemption.

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