Electing To Campaign; The IRS Is Watching

January 6, 2012       Gary Morton      

When the president of Catholic Answers posted an e-letter on the nonprofit’s Web site eight years ago questioning whether Sen. John Kerry (D-Mass.), a Catholic, should receive communion at Mass because of his support for abortion, the organization believed he was simply stating an opinion about the then-presidential candidate’s stance on an issue important to Catholics.

The e-letters referred to a Voter’s Guide, which discussed church teachings on what Catholic Answers considers five “non-negotiables.” Even though it did not identify specific candidates — the Internal Revenue Service (IRS) thought Catholic Answers overstepped its bounds into the political arena.

The IRS levied small excise taxes totaling $102.23. When the organization contested the decision in court, the IRS refunded the fine, which effectively ended the case. But Catholic Answers, based in San Diego, Calif., this past October asked the U.S. Supreme Court to consider the case and to rule on the regulations and the IRS’s tactics.

While Catholic Answers will provide a voter’s guide through Catholic Answers Action, as it has in past elections, for the 2012 presidential election, spokesman Jimmy Akin said the organization might not comment on how a Catholic candidate’s views compare to official church teaching, as it did with Kerry. Akin cited what he called a “chilling effect” on free speech caused by ambiguity over what is banned and IRS tactics that end court challenges without a clarification of what the tax code regulations mean.

“The IRS is de facto violating our free speech rights,” he said, since nonprofits often do not understand what they can or cannot do.

The case illustrates the dangers nonprofits face this coming election year, concerns that are compounded by the rise in use and types of social media messages the organizations might use. What might seem to be an innocent comment to supporters could be considered political speech by the IRS.

Gary Bass, executive director of the Bauman Family Foundation and founder of OMB Watch, both in Washington, D.C., said the ambiguity of the restrictions on nonprofits could lead some organizations to muzzle their views on topics such as health care, the right to life or to choice in abortion, and gun control, even if those are their primary concerns.

Catholic Answers is one of more than 250 organizations investigated by the IRS because of activity during the 2004, 2006 and 2008 election cycles. More than half were found to be valid complaints; seven of those nonprofits lost their tax-exempt status. The IRS listed 133 cases of what it considers substantiated political activity by nonprofits during the 2008 election season, including 16 cases where it found that an “organization endorsed candidates on its website or through links on the website.”

Social media increases fears for nonprofits regarding what the IRS could determine to be de facto endorsements even when the group’s resources, such as its computer equipment, are not used and the action takes place after hours and away from its facilities, according to Susan Brown, public policy director of the Minnesota Council for Nonprofits in St. Paul, Minn. One concern is that a key employee, readily identified within the community with the organization, might post an endorsement on a personal Facebook page, Twitter account or blog. Given the community’s identification of the person with the nonprofit, would that endorsement constitute de facto support by the organization?

“It’s a balancing act,” Brown said. “In the nonprofit sector we believe deeply in community and voter involvement, and do not want to squelch people’s ability to participate,” yet the nonprofit wants to protect its tax-exempt status for donations.

Bass described that scenario as “potentially a dicey issue. There’s a core First Amendment issue that needs to be protected. If the individual is extremely clear that his time is on his own time and all the resources of the blog [or post] … are the individual’s own cost, that’s a First Amendment right to express his or her point of view.”

For more on this, please go to http://www.thenonprofittimes.com/article/detail/electing-to-campaign-4296