“The ban on political campaign activity by charities and churches was created by Congress more than a half century ago. The Internal Revenue Service administers the tax laws written by Congress and has enforcement authority over tax-exempt organizations. Here is some background information on the political campaign activity ban and the latest IRS enforcement statistics regarding its administration of this congressional ban.”
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
.
Civil Action No. 95-0724 (PLF)
.
BRANCH MINISTRIES, INC., et al., Plaintiffs,
v.
CHARLES O. ROSSOTTI,
Commissioner, Internal Revenue Service, Defendant.
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Opinion
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This case is about the decision of the Internal Revenue Service to revoke the status of plaintiff Branch Ministries as an organization exempt from taxation pursuant to 26 U.S.C. § 501(c)(3). Before any discovery was conducted, the government filed a motion to dismiss or for
summary judgment. Plaintiffs sought discovery on their claim that they were victims of selective prosecution, and the Court granted plaintiffs’ motion to compel. The case now is before the Court on the renewed motion of the government for summary judgment and on plaintiffs’ cross-motion for summary judgment. Upon consideration of the cross-motions, the Court concludes that the government has established that there are no material facts in dispute and that it is entitled to judgment as a matter of law.
.
…
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3. Political Expression Claims
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Plaintiffs argue that the IRS engaged in content-based viewpoint discrimination in
violation of their Fifth Amendment right to equal protection and in violation of their First Amendment right to free speech. The Fifth Amendment equal protection claim mirrors plaintiffs’ Fifth Amendment selective prosecution claim.
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Plaintiffs contend that the IRS targeted the Church for revocation because the Church had expressed its political views. Because plaintiffs have failed
to provide any evidence of similarly situated churches that have not had their Section 501(c)(3) status revoked, see supra at 11-14, plaintiffs’ Fifth Amendment claim fails.
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“Congress is not required by the First Amendment to subsidize lobbying.” Regan
v. Taxpayers With Representation, 461 U.S. 540, 546 (1983). Plaintiffs contend, however, that churches are different. Plaintiffs maintain (1) that churches are open fora, (2) that the IRS decision to revoke the Section 501(c)(3) status of the Church constitutes viewpoint
discrimination, and (3) that the IRS therefore must demonstrate a compelling interest in order to
justify the revocation. See Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45-46 (1983). There are a number of problems with plaintiffs’ argument. First, it is not at all clear that private churches in fact can be deemed open public fora. See id. (citing, as examples of open fora, numerous public or government spaces).
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Second, even if a church is an open forum, that would be irrelevant to the revocation at issue in this case. The Section 501(c)(3) status of the Church was not revoked on the basis of any expressive activity that occurred on the property of the Church, the purportedly
“open” forum. Instead, the Section 501(c)(3) status was revoked because the Church took out a full-page advertisement advocating against a partisan political candidate. In this case, the relevant forum is the channel of communication, the newspaper advertisement itself, rather than the
property of the Church, the messenger. See Cornelius v. NAACP Legal Defense and Ed. Fund, 473 U.S. 788, 800-02 (1985) (“in defining the forum we have focused on the access sought by the
speaker. . . . [where plaintiffs] seek access to a particular means of communication,” the channel of communication rather than the physical site is the relevant forum). Even if the property of the Church itself is considered an open forum and the IRS could not constitutionally revoke the
Section 501(c)(3) status of a church on the basis of statements made in the church, the IRS clearly may revoke the tax-exempt status of any organization that publishes an advertisement in
opposition to a candidate for public office. See Regan v. Taxpayers With Representation, 461U.S. at 546.
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Finally, plaintiffs contend that the IRS viewed the Church as “militant right” and
that revocation of its Section 501(c)(3) status therefore constituted viewpoint discrimination. See Pls’ Motion for Summ. J. at 30. As discussed supra at 14-16, however, plaintiffs have
provided absolutely no evidence that the IRS revoked the Section 501(c)(3) status of the Church on the basis of its political views. Plaintiffs therefore have failed to establish a First Amendment violation. An Order consistent with this Opinion shall be issued this same day.
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SO ORDERED.
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PAUL L. FRIEDMAN
United States District Judge
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