FFRF Sues the IRS to Enforce 501(c)(3) Electioneering Restrictions

Remember last week when I said I’d probably give the Freedom From Religion Foundation an upvote every week? Well…

I’m just going to use this graphic for them from now on. They’ve earned it.

If I could adorn it with sparkly glitter and blinky neon lights without risking an epileptic seizure or migraine, I’d probably do it.

 Yesterday, FFRF sued the Commissioner of the Internal Revenue Service. No shit. And yes, they sued because the IRS won’t friggin’ enforce the rule about churches electioneering. Basically, this is a claim of a sort of nonfeasance or dereliction of duty, something that isn’t very common. By not doing his job – by not enforcing the law – FFRF says that the Commissioner of the Internal Revenue Service has violated the Equal Protection Clauses of the Constitution.

FFRF wants a declaratory judgment against the Commissioner – in other words, a judgment that says that the Commissioner has done wrong. It has asked for an injunction against the Commissioner’s refusal to enforce the law, which is a convoluted way of saying that it wants the court to issue an order requiring the Commissioner to enforce the law. (I know – why couldn’t they just say that?) FFRF also wants the court to order the Commissioner of the IRS to designate someone as a high-level official who can take the complaints from IRS Form 13909 and investigate them.

The lawsuit asserts that under the administration of Commissioner Shulman, the Internal Revenue Service, under the direction of the IRS “has followed and continues to follow a policy of non-enforcement of the electioneering restrictions of §501(c)(3) against churches and other religious organizations.”  You tell ‘em, FFRF!

And the complaint continues: “As a result, in recent years, churches and religious organizations have been blatantly and deliberately flaunting the electioneering restrictions of §501(c)(3), including during the presidential election year of 2012.” Ya think? Just to be certain that the court is aware of the kinds of things that are going on, FFRF lists a few of them:

  • Illinois Bishop Daniel Jenky required that a partisan letter be read by every celebrating priest in the diocese to congregants the weekend before the recent Presidential election;
  • On October 7, 2012, more than 1500 clergy, in a deliberate and coordinated display of noncompliance with the electioneering restrictions of §501(c)(3), including prominent megachurches, flagrantly violated the law against churches electioneering;
  • The Billy Graham Evangelistic Association, one of the most prominent and respected religious ministries in the country, ran blatantly partisan full-page ads in October of 2012 in the Wisconsin State Journal;
  • Just prior to the November 6, 2012 election, the Billy Graham Evangelistic Association also ran blatantly partisan ads in the the New York Times, USA Today, the Wall Street Journal, and more than a dozen national and battle ground state newspapers
  • The Association also published expressly partisanship on its website just prior to the election;
  • Open and notorious violations of the electioneering restrictions of §501(c)(3) by churches and other religious organizations have been occurring since at least 2008, with churches recording their own partisan activities and sending the evidence to the IRS.

Did you catch that last bit? In case you hadn’t heard, the churches are violating the law and taunting the IRS by sending proof of their blatant disregard for the law to the IRS themselves! And the IRS sits there with its thumb up its ass and does nothing but admire the wallpaper.

Understandably, FFRF, which itself is a 501(c)(3) organization, is somewhat miffed by this, and in the lawsuit it said so. Why does FFRF have to obey the law but these religious organizations do not? This is religious discrimination. Selective non-enforcement of the law based on religious criteria violates the Establishment Clause and the Equal Protection Clause, and, to add insult to injury,

The preferential tax-exemption that churches and other religious organizations obtain, despite noncompliance with electioneering restrictions, amounts to more than $100,000,000,000 annually in tax-free contributions made to churches and religious organizations in the United States.

I don’t know how or where FFRF came up with that number, but if it’s true, that’s about thirty-five billion – with a B – dollars in lost tax revenue. Money that we owe China. Money that would sure help with deficit reduction.

FFRF wants a level playing field, and an end to the preferential treatment. It demands that the law be enforced. By not enforcing the law with respect to religious institutions, the government is effectively giving religion a $35,000,000,000 tax subsidy. And that, ladies and gentlemen, is establishment of religion.

A private attorney, Richard Bolton, is representing FFRF on this one. Bolton is a respected civil rights lawyer in Madison, Wisconsin, where FFRF is located. I would imagine he’s going to be getting a lot of hate mail in the near future, so let’s give him some love, shall we? Thanksgiving is coming next week, and he’s someone we might just want to thank.

You can read FFRF’s own press release and the complaint against the IRS on the FFRF website. If you aren’t a member of FFRF already, it’s time to join. Even if you don’t join, please donate. FFRF isn’t electioneering, so contributions to it will remain tax-deductible. The Freedom From Religion Foundation works tirelessly to protect our rights. They deserve some love, too.



Got a legal question? Email me at anne@aramink.com. I’m a lawyer, but there’s only a 2% chance I’m licensed in your state. Whether I answer your question or not, sending me an email or reading this blog post does not create an attorney-client relationship between us. You can see my regular blog at www.aramink.com, where I write book reviews, ruminate on Life, the Universe, and Everything, and occasionally – frequently – rant about Stuff.

About Anne

Civil rights activist Anne Orsi is one of the spokespeople for the Arkansas Society of Freethinkers and is the primary organizer of Reason in the Rock, a conference on science, secularism and skepticism. Got a question? Email her at anne@aramink.com. She's a lawyer but may not be licensed in your state. Sending her an email or reading her blog posts does not create an attorney-client relationship. Find Anne on Twitter as @aramink, and read her regular blog at www.aramink.com.

  • invivoMark

    Just FYI:

    If you become a member of FFRF (cost $40), you can enter into a drawing for an autographed Why Evolution Is True book: http://whyevolutionistrue.wordpress.com/2012/11/15/we-get-revenge-the-ffrf-sues-the-irs-for-failure-to-enforce-tax-laws-on-churches/

    Yeah, that’s my not-so-sneaky way of enticing people to sign up. Does this count as my good deed for today? :-)

  • RuQu

    I have no idea what this sentence is trying to say:

    “The lawsuit asserts that under the administration of Commissioner Shulman, the IRS has Internal Revenue Service, under the direction of the IRS”

    • http://www.aramink.com Anne

      Proofreading error. Corrected. Apologies.

      • RuQu

        I guessed as much, just didn’t have a better way of bringing it to your attention. We’ve all been there.

        Keep up the good work.

  • Drew

    Please correct me if I’m wrong but isn’t this simply posturing? Won’t the IRS simply do what it’s done before when people take them to court and get the suit dismissed by claiming sovereign immunity?

    • http://www.aramink.com Anne

      Sovereign immunity applies to torts – negligence and the like. It doesn’t apply in this case, where the government is being requested to do its job.

      • baal

        I’m interested in their standing. I suppose I could go read the complaint.

        • baal

          Ok, I read it. The standing is there but I could see them getting bounced for it. For the non-lawyers, before you can sue you need a plaintiff who has been harmed. This was a huge problem for the illegal spying on citizens by the us fedgov cases as secret spying can’t be a ‘known’ harm, QED, you lack standing to sue. in the FFRF case, they assert the harm is that as a 503(c) they are barred from electioneering as churchs are but enforcement of the electioneering is done on a discriminatory basis and the sole factor in the discrimination is religion. It’s possible that they’ll need to find a church that’s will to join as plaintiff and that church would have to be one that does not electioneer (or one that does and pays taxes).

          • cpolito

            I think if they really want to get solid footing for standing they need a 501(c)(3) organization that actually had the anti-electioneering provision enforced against it. Right now, I could see this case getting tossed because the FFRF’s harm is speculative and only potential. At this point they’re only claiming that if they did electioneer then the IRS would strip their tax-exempt status. Without some evidence to that effect it’s nothing more than speculation.

          • Anonymous

            Churches Are “Automatically Tax-Exempt”

            According to IRS Code § 508(c)(1)(A):

            Special rules with respect to section 501(c)(3) organizations.
            (a) New organizations must notify secretary that they are applying for recognition of section 501(c)(3) status.
            (c) Exceptions.
            (1) Mandatory exceptions. Subsections (a) and (b) shall not apply to—
            (A) churches, their integrated auxiliaries, and conventions or associations of churches.

    • RuQu

      The current reason, as Anne explained in a previous blog, is that Congress never redefined who had authority to start the investigations after the IRS reorganized to not have regional directors. However, the original law did enable the head of the IRS and the Secretary of the Treasury to start investigations, as well as the regional directors.

      By filing the lawsuit and providing a large pile of evidence, they give the head of the IRS the “reasonable belief” that there was a violation which is needed to initiate the investigation. Once those are initiated, he can delegate that to the appropriate office in the new non-regional organization scheme.

      This wouldn’t normally warrant the attention of someone so high, and it shouldn’t, but until Congress acts this is likely the best chance to get something done.

  • Joe

    Okay, I think that churches should pay up in taxes and I hate using religion to get political gain as much as any other atheist, so don’t take this the wrong way, but…

    FFRF is going to lose this case. It will be thrown out because they won’t have standing. This will make it harder to win cases like this in the future because this sets bad precedent- the court will look back to this case and see that it was thrown out, causing future attempts to be thrown out. Even if people in the future have a better chance of getting the case to court or actually have standing, it will be that much harder because of this bad precedent.

    This isn’t the first time FFRF has taken up an unwinnable case and lost. http://rationalwiki.org/wiki/Freedom_From_Religion_Foundation#Legal_Wins_and_Losses

    It is morally right to fight against religious encroachment into public life and violations of the law, however it is practically foolish to try to go to court when you are not %100 certain you will win the case. Foolish and harmful. FFRF does more harm than good when they pull stunts like this because the bad precedent hurts the secular movement in the long run.

    • Benjamin

      You need to read the complaint. They establish their standing well enough therein.

  • Rob

    It’s really hard to take an article seriously when it contains phrases like “ya think,” “friggin’,” and “you tell ‘em.”

    • Brian

      Isn’t that just you trying to overlook the facts of the article and imposing your own level of standards on what you would accept as reliable and/or intellectual reporting?

      Obviously some sort of standard has to be met but I do not think barring any sort of informal writing in journalism should be included in that standard. Use of full sentences without any large grammatical errors or containing easily overlooked/fat fingered errors is fine in my books.

    • Kodie

      The law doesn’t have to be dry.

  • Jay

    I have been asking for this and begging for someone to come forward regarding 501c3s, Churches and politics. THANK YOU THANK YOU THANK YOU! Sue the pants OFF!

  • JohnJ

    Ummm…Obama has the SAME type policy for illegals…going to sue him as well?

    • JohnZ

      What are you trying to say? Obama is allowing “illegals” (whatever that is supposed to mean) to preach politics to their congregations? I guess we should sue him, that’s completely out of line!

      Or are you trying to draw some tortured parallel between the casual acceptance of illegal immigrants in this country and this topic? Because really, this country was founded on immigration. And not founded on a lot of things other people will tell you it was. People get here through all kinds of methods, and occasionally do the things that most of America believe are beneath them. I think it’s a fact and we need to deal with it rationally and humanely.

      But hey, you sue away. Perhaps if you waste all of your money and time on that, the rest of us will be able to continue talking about interesting things in your absence.

  • JohnJ

    LOL..CASUAL acceptance…its out an out ALLOWING illegals to enter with NO punishment. It is allowing a flow of illegals across our boarders that…last time I checked HE SWORE to protect…Its something you BETTER care about…I venture to guess you don’t care about the BILLIONS lost every year to illegals and their children…HEY its just money taken from someone elses pocket…right!?

    • Zinc Avenger (Sarcasm Tags 3.0 Compliant)

      Hey, that’s really interesting. Do you have some links we could look at?

      • JohnJ

        First of all..would it REALLY matter if I did…second…its not hard to find illegals and its WIDELY reported on even ABC and NBC news that Immigration officials aren’t doing their jobs.

        • Zinc Avenger (Sarcasm Tags 3.0 Compliant)

          Why do you expect to be taken seriously when you refuse to engage in discussion when addressed politely? Do you just want to “show those…LIBS what I THINK of…THEM…!”

          Fine, troll.

          Random capitalization makes you look like an unhinged lunatic yelling words in the middle of spoken sentences. Random use of ellipsis (that’s the “…” you seem to think is a substitute for punctuation) makes you come across as suffering from some sort of narcolepsy which causes you to fade out for a moment mid-rant. However, you used an apostrophe – and in the right place too! Have a participation trophy.

          • JohnJ

            Feel better?