I. Introduction
"The NAACP
has always been nonpartisan, but that doesn't mean we're noncritical.
For as long as we've existed, whether Democrats of Republicans have
occupied the White House, we've spoken truth to power."[1] With these
words, Chairman Julian Bond, head of the National Organization for the
Advancement of Colored People (NAACP), began the keynote address of the
organization's 95th annual convention in Philadelphia in July of 2004.
He went on: "We must guarantee the irregularities, suppression,
nullification and outright theft of black votes that happened on
election day 2000 never, ever happen again . . . You cannot win this
race by ignoring race . . . We know that if whiles and nonwhites vote
in the same percentages as they did in 2000, Bush will be re-defeated
by 3 million votes."[2]
Soon after this speech was made, and its contents made publicly
available on the official website for the NAACP, the IRS began an
investigation claiming that the speech made by Bond in his capacity as
Chairman constituted intervention in a political campaign, an activity
prohibited for organizations operating as charitable under section
501(c)(3) of the Internal Revenue Code.[3][4] Intervention in a
political campaign can carry with it a penalty as high as complete
revocation of tax-exempt status. At the very least, a charitable
organization which has intervened in a political campaign must pay an
excise tax on the amount of money spent by the organization on the
activity.[5]
II. Backstory
As
of March of 2006, the NAACP has declared its intentions to engage the
IRS's claims in federal court and argue that the statements of its
Chairman were not campaign activity, but rather constitutionally
protected speech concerning important issues of public policy.[6] In
addition to questioning the validity of the claims, the NAACP also
questions the agency's motivations: "We remain concerned that the IRS's
decision to audit the NAACP, particularly the timing of the
commencement of this audit, was motivated by politics rather than
grounded in the federal tax law."[7] It is the NAACP's goal to "defend
the principles at stake and demand better treatment on behalf of the
countless organizations in our sector that need clear guidance in this
area."[8]
III. The Nature and Boundaries of the Political Campaign Limitation
The justifications underlying the prohibition on political campaign
intervention are borne out of the notion that the government is not,
and should not be in the business of subsidizing political campaigning,
even indirectly through deductible contributions.[9] Beyond this, one
might also argue that the province of the charitable world should
remain untainted by the political world. The political campaign
limitation has already passed Constitutional muster; so long as the
limitation only declines to subsidize political speech.[10] The
Supreme Court has determined that a charitable organization may
exercise its voice in the political arena by way of the creation of a
related section 501(c)(4) organization (an organization which may not
receive deductible donations), and therefore, there is no meaningful
First Amendment violation.[11]
IV. IRS Guidance in the Area of the Political Campaign Limitation – An Oxymoron?
The standard regarding what constitutes intervention in a political
campaign is loosely defined in both the Code and regulations.
Charitable organizations, therefore, are by and large left to rely upon
case law and Revenue Rulings as the predominant sources of specific
guidance on the issue. For example, a charitable organization is not
prohibited from engaging in neutral, educational speech regarding
political campaigns.[12] However, when the "format" or "content" of a
statement or publications ceases to be neutral in any way, it becomes a
prohibited intervention in a political campaign.[13] In a February
publication seemingly directly aimed at the NAACP investigation and
resultant opposition, the IRS tried to shed some additional light on
the topic: "The political campaign intervention prohibition is not
intended to restrict free expression on political matters by leaders of
organizations speaking for themselves, as individuals. Nor are leaders
prohibited from speaking about important issues of public policy.
However, for their organizations to remain tax exempt under section
501(c)(3), leaders cannot make partisan comments in official
organization publications or at official functions of the
organization."[14]
V. Does the NAACP have a case?
It strikes this author that the NAACP seems to be gearing up for a
due process argument. Given the organization's expressed concern that
the IRS was acting out of political motivation rather than through
routine application of auditing procedures, it appears that they will
try to frame the situation as one in which they were singled out as an
example during a time when many charitable organizations may have been
pushing the campaign limitation envelope. The argument does not strike
this author as without merit. Putting aside this as yet
unsubstantiated argument, however, it does not seem that the NAACP has
much of a case at all. In admonishing NAACP members and more
importantly, the public generally (through use of its website) that
they "must guarantee [that what happened in the 2000 election] never,
ever happen again,"[15] and in particular by mentioning Bush by name,
Chairman Bond has at very least toed the line of what separates
protected discourse on matters of public policy from prohibited
campaign intervention. The counter-argument is that the Chairman's
words could be construed only to reflect his concern that the ballot
abnormalities of the 2000 election not be repeated. While not a losing
argument on its face, it is very difficult, at least for this author,
to construe the Chairman's words as being non-partisan in light of the
fact that he went on to discuss other Bush administration policies
concerning the war in Iraq, the economy, and the state of civil rights,
among others.[16]
VI. Conclusion
Is every charity's work inherently apolitical? Should it be? Can a
charitable organization which was at the forefront of the civil rights
movement even attempt accomplishment of its goals without engaging in
uncensored political discourse? These are the difficult questions.
The easy answer the law gives is that these organizations can through
related uncharitable organizations, but not using tax deductible
donations.
[1] Lisa Getter, IRS Investigating NAACP for Criticism of President, THE L.A. TIMES, Oct. 29, 2004, available at http://www.truthout.org/docs_04/printer_1030041.shtml.
[2] Id.
[3] Mike Allen, NAACP Faces IRS Investigation, THE WASHINGTON POST, Oct. 29, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/A7433-2004Oct28.html.
[4] Charitable status is available to "any community chest, fund, or
foundation, organized and operated exclusively for . . . educational
purposes . . . which does 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 public
office." 26 U.S.C.A. §501(c)(3) (West 2006).
[5] 26 U.S.C.A. §4955 (West 2006).
[6] NAACP.org, NAACP Will Challenge the IRS Threat in Federal Court (Mar. 30, 2006), at http://www.naacp.org/news/2006/2006-03-30.html.
[7] Id.
[8] Id.
[9] See Branch Ministries, Inc. v. Rossotti, 211 F.3d 137, 143 (C.A.D.C. 2000).
[10] See generally Regan v. Taxation with Representation
of Washington, 481 U.S. 540 (1983) (Blackmun, J., dissenting). Though
this case dealt with the First Amendment as it pertains to restrictions
on lobbying imposed on charitable organizations, it has been applied as
persuasive in political campaign cases such as the above-cited Branch
Ministries, Inc.
[11] See id.; see also Rossotti, 211 F.3d at 143.
[12] Rev. Rul. 78-248, 1978-1 C.B. 154.
[13] Rev Rul. 80-282, 1980-2 C.B. 178.
[14] Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3) Organizations (February 17, 2006), at http://www.irs.gov/newsroom/article/0,,id=154712,00.html.
[15] Getter, supra note 1.
[16] Id.