A thousand years ago theologians pondered how many angels could sit atop the head of a pin. The answer is still a bit unclear, but the God business doesn’t seem to be suffering from lack of certainty on the point.
These days the IRS is pondering how many clicks of the mouse it takes to lose your freedoms of speech and religion, but nobody in the non-profit sector is willing to wait a thousand years to find out. In fact, tax-exempt organizations of all kinds would like an answer well before the 2008 election cycle heats up any more.
Mouse clicks are linked to speech and religion rights because the tax code contains an absolute prohibition on charities, including churches, becoming involved directly or indirectly in political campaigns. Yet nearly every church and charity has a Web site that can be linked to literally millions of other Web sites, some of which may be Web sites for political candidates or Web sites of other organizations actively involved in a political campaign–as fundraisers, for example. If the connection between the so-called 501(c)(3) organizations and the political sites is too close, the IRS could strip the organizations of their tax-exempt status or subject them to excise taxes for improperly engaging in political campaigns.
Thus, if the number of clicks it takes to get from a charity’s Web site to a political site is too few, its ability to speak freely (or, in the case of a church, to practice its religion) is harmed in some way, or even eliminated. That’s why all eyes are on the IRS to tell us how many clicks of the mouse are too few.
The much hoped for “two-click” rule is not likely, according to John Pomeranz, a partner at Harmon, Curran, Spielberg & Eisenberg in Washington, D.C., who specializes in non-profit law. He says everybody would love to have a bright-line test that says two clicks away from a charity’s site is enough to insulate it from the electioneering going on at another site. But if it were that simple, the IRS wouldn’t have been studying the issue for the past seven years.
He suggests that if the IRS comes up with more clarity on this point this summer, as is expected, it will boil down to more guidance about the context of a charity’s links. In other words, the IRS is likely to tells us only that whether a charity’s Web site links amount to unlawful electioneering will depend on that old formulation, “facts and circumstances.”
As appealing as a “two-click” rule would be, it cannot address all the different facts and circumstances out there. For example, no one would believe the League of Women Voters to be electioneering if its Web site had a one-click link to John McCain’s campaign site and to the Web site of every other presidential candidate.
Then there is the case of a charity linking to a site of an environmental group to give its donors detailed information about a joint project with the latter. What happens if three months later the environmental group endorses a candidate for senator and the endorsement is one click away from the page describing the joint project? That would be just two clicks away from the charity. And, should the charity even be subject to a penalty when unbeknownst to it a previously acceptable mission-related link becomes unlawful due to the conduct of the operators of the other site? Maybe the charity should get some slack in that case, but do charities have a duty to monitor their links? If so, how frequently and for how long?
Non-profits are nervous about all of this because enforcement of the no-politicking rule is complaint-driven, and no charity wants to get a complaint. As Pomeranz observed, charities live on their halos, and they don’t want their halos tarnished by a series of complaints that could have been avoided by clear rules. Meanwhile, they will be wary of linking. The word is that these political activity rules are a priority at the IRS right now. Let’s hope so. The election season is heating up.
Bruce Collins is the corporate vice president and general counsel of C-SPAN, based in Washington, D.C.