Cross-posted from Asian Americans for Obama:
A blog called "Central Ohioans Against Terrorism" (COAT) is apparently working itself into a frenzy over information we posted here about voter registration drives organized by Muslim Americans for Obama (MAFO). It apparently even caught the attention of National Review Online. Welcome, "Corner" readers!
COAT claims that voter registration by Muslim Americans for Obama volunteers "flagrantly violate[s] the tax exempt status of these participating mosques...which are strictly prohibited from supporting or endorsing any kind of partisan political activity-even when they claim it is only 'voter registration.'"
We here at AAFO contacted MAFO for clarification, and they informed us that all volunteers were being instructed to engage strictly in voter registration activities and not to advocate in any way for or against a candidate or party. Though we felt pretty confident in our understanding of the law, we double checked and did the legal research again and found virtually unanimous agreement from left to right, atheist to devout, partisan to nonpartisan, that 501(c)(3) tax exempt religious institutions may conduct, sponsor, or host voter registration and get-out-the-vote drives so long as no candidates are endorsed or all candidates are depicted on an equal basis.
COAT apparently did not do its homework, for it shortly added a few "updates" to its post that continued to get both the facts and the law wrong. Go below the fold for our detailed response to each of their points.
Before we dive into the legalese, another quick clarification. Asian Americans for Obama and Muslim Americans for Obama are two entirely separate grassroots organizations. COAT apparently believes we are the same group, since they attribute our clarification language to the event post to MAFO. AAFO sought and received additional clarification from MAFO, which we combined with our legal research for the updated post. We do not speak for MAFO, and vice versa, but we are happy to help spread the word about volunteer opportunities that may be of interest to our activists.
First, a brief overview of federal law. Section 501(c)(3) of the Internal Revenue Code (IRC) governs tax exempt religious institutions. The language in the IRC addressing political activity by 501(c)(3)s is brief:
"Organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes...no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."
The above is admittedly pretty vague; what does it mean to "participate in" or "intervene in" a political campaign on behalf of a candidate? According to legal analysis by the nonpartisan Congressional Research Service, the official research arm of the United States Congress:
"Voter Registration. IRC § 501(c)(3) organizations may conduct nonpartisan voter registration and get-out-the-vote drives. Again, the activities may not indicate a preference for any candidate or party. Factors that may indicate these activities are neutral include:
- candidates are named or depicted on an equal basis,
- no political party is named except for purposes of identifying the party affiliation of each candidate,
- the activity is limited to urging acts such as voting and registering and to describing the hours and places of registration and voting, and
- all registration and get-out-the-vote drive services are made available without regard to the voter's political preference."
In other words, churches, mosques, temples, etc. may participate in voter registration and get-out-the-vote drives as long as the "activities" do not include telling people which candidate or party to vote for, name or show all candidates equally, don't name any political party except to identify the candidates, limit the activities to encouraging people to register and go vote and provide information on how to do so, and such activities are equally open to all comers, regardless of their political views or preference.
Note that the language specifically mentions activities. That means that it doesn't matter if any or all of the volunteers participating in the activities support a particular candidate or party, so long as they do not make that preference known during the activities and they don't discriminate against people based on their political preference. If the law were otherwise, then any volunteer who registered voters who harbored a fondness for a certain party or candidate would jeopardize a 501(c)(3)'s status, even if the volunteer made sure that no one ever knew her views.
AdvanceUSA, a group that "exists to LOCATE, EDUCATE, and ACTIVATE Americans to advance conservative policy," Project Fair Play of Americans United for the Separation of Church and State, Mathew D. Staver, Dean of Liberty University School of Law, and the California Family Council all agree on the CRS interpretation.
Dean Staver wrote in a 2004 article, "Outside of express endorsement of or opposition to candidates for political offices, pastors and churches may engage in many other permissible activities. Churches may host voter registration drives, be a host site for balloting, or host a forum where candidates address the congregation or answer questions from a moderator."
An IRS Revenue ruling from June 18, 2007, gives this example as a permissible activity:
"B, a section 501(c)(3) organization that promotes community involvement, sets up a booth at the state fair where citizens can register to vote. The signs and banners in and around the booth give only the name of the organization, the date of the next upcoming statewide election, and notice of the opportunity to register. No reference to any candidate or political party is made by the volunteers staffing the booth or in the materials available at the booth, other than the official voter registration forms which allow registrants to select a party affiliation. B is not engaged in political campaign intervention when it operates this voter registration booth."
In other words, according to the IRS, religious institutions can register voters as long as volunteers don't reference any candidate or political party and simply provide the opportunity to register and information about elections and voting. Thus, as long as MAFO's volunteers do not use written materials with Obama's name or image, advocate for his election or similar, and confine their activities to registering all eligible voters and providing information about registering and voting, they pose no threat to a religious institution's 501(c)(3) status.
Now to apply the above analysis to each of COAT's points in turn, from top to bottom in their post.
1. Voter registration drives at religious institutions are only legal if the organization providing the volunteers is itself non-partisan.
Nothing in the language of the statute or the interpretation agreed upon by everybody from the IRS to the CRS to Americans United for Separation of Church and State to Jerry Falwell's Liberty University Law School Dean suggests that the organization providing volunteers for voter registration activities hosted by a 501(c)(3) must itself be non-partisan, so long as the voter registration and GOTV activity is strictly non-partisan.
Another way of saying it would be that COAT is half right - the organization providing the volunteers does have to be non-partisan - in the way it conducts its activities. That's because the policy rationale behind the law is to prevent a religious institution using its tax exempt status to benefit a candidate or party. If a group of volunteers who support McCain and a group of volunteers who support Obama both come to the same religious institution and offer to register any and all eligible voters, urge people to exercise their civic duty to vote, and provide election information, all without mentioning McCain or Obama, the end result is the same. The religious institution would not be helping or hurting either candidate any more or less by which group of volunteers showed up. We would encourage both groups to volunteer to register voters in their communities and for all 501(c)(3)s to provide open and equal access to anyone who wants to do so in a legal, non-partisan manner.
2. Because the announcement says these voter registration drives are intended to "get out the vote for Sen. Obama," they are considered partisan and therefore illegal.
First, the exact language from our post is "Muslim Americans for Obama will be working to get out the vote for Sen. Obama, and they need help registering voters!" This is also our language, not theirs. Though the two are related, this does not automatically make the voter registration activity partisan. Those of us who support Sen. Obama and his grassroots campaign believe that real change must be founded on true democracy based on the full participation of every American citizen, so it is our goal to register every eligible voter regardless of his or her views. While we certainly feel that if as many people come out to vote as possible that America will ultimately choose Sen. Obama's vision, we might be wrong. What MAFO has made clear is that even if every single person at a voter registration drive said they were going to eagerly cast their vote for McCain, its volunteers are instructed to register them and provide them the same information as anyone else while keeping silent about that voters particular preferences. And if the law or host requires them to keep silent about their own preferences, they will respect those requirements.
Undeniably, certain populations can be expected to generally support one or another candidate. But registering voters at certain population centers is clearly legal, otherwise Rock the Vote would lose its 501(c)(3) status for going to college campuses and registering young voters (who poll overwhelmingly for Obama) and Priests for Life would lose its status for going to Catholic churches and registering voters. Now if a Rock the Vote volunteer refused to register a certain student because he wore a McCain shirt or a professor because she was "too old," or if Priests for Life refused to register a Jew attending a Catholic mass with a friend, then they would be in trouble. It is legally irrelevant whether Priests for Life subjectively believes that its efforts are going to help a certain candidate in the end, as long as they adhere to the legal guidelines outlined above.
3. The simple fact that this is "Muslim Americans for Obama" makes this partisan political activity, their "clarification" notwithstanding.
This simply isn't true. All the legal analysis cited above agrees that whether voter registration and GOTV activity is partisan depends on factors that indicate the activity is neutral, including whether parties or candidates are mentioned, and if they are, in an equal manner, whether activity is limited to registering voters and providing election information without preference for any candidate or party, and whether the services are made available to every eligible voter regardless of political preference.
Talk to general counsels at the large 501(c)(3) organizations. They're asked to host voter registration volunteers, booths, and activities at their events all the time. And they'll always tell you that if they decide to permit voter registration (it's certainly their choice), they ask that the volunteers, regardless of what organization they represent, hold themselves out as neutral, non-partisan volunteers at such events.
For example, universities will permit College Republicans and College Democrats to conduct voter registration drives on campus property and with campus resources so long as they are equal opportunity. In fact, the university example illustrates that the law is probably even more flexible than we've described so far, since it's clear from a quick look around that voter registration tables at universities run by College Republicans or College Democrats often clearly identify the organization. The IRS has made clear that 501(c)(3)s can even invite a candidate to speak at events "in his or her capacity as a political candidate," as long as equal opportunity is given to all candidates to participate, the organization does not indicate any support or opposition to the candidate, and no political fundraising occurs in connection with the speech.
You'll recall that the IRC statute only discusses political activity generally, not voter registration or political speeches specifically, so it makes logical sense that even partisan voter registration may be permissible as long as the 501(c)(3) institution is simply hosting, not organizing, the volunteers and all parties and candidates are invited and allowed to participate equally, and the institution does not indicate support of or opposition to any of the groups. In MAFO's case, volunteers are not identifying themselves as Obama supporters, so it's even less problematic.
4. MAFO's event postings indicate that some of the voter registration tables are inside the mosques, thus the mosques are sponsoring illegal activity.
We do admit that we were mistaken about the location of some of the voter registration activity, and we apologize for the error. BUT, as we noted in our previous clarification, there is NO legal requirement that voter registration activity not take place on 501(c)(3) property as long as that activity satisfies the requirements of the IRC.
5. It was these kinds of activities that eventually sunk the Christian Coalition's tax exempt status with the IRS.
Simply, completely, and utterly wrong. The Christian Coalition lost its tax exempt status in 1999 as the result of the distribution of "voter guides" in churches that the IRS determined had a partisan bias. These voter guides listed various issues with the candidates' "position" on them, but the language used was often clearly designed to make one position seem much better than the other, thus favoring certain candidates.
For example, a guide produced after they lost tax exempt status stated: "Control of Public Education by Powerful Unions." Bush: Opposes. Gore: Supports.
Critics warned churches that distributing such slanted guides would also jeopardize their tax-exempt status, though notably, no church that did distribute the guides was penalized. (In fact, Dean Staver of Liberty University has noted that as of 2004, no church had ever actually lost its tax exempt status.) Distributing voter guides in general is still permissible as long as they are unbiased.
For veteran voter registrars and volunteers, the above must seem incredibly tiresome (and it should). Those of us with extensive voter registration experience know that before you register voters at someone else's event or property, you find out what the applicable laws and the host's wishes are, and you respect them. That may mean we can put up an "Asian Americans for Obama" sign and wear our Obama shirts while registering voters at a supermarket, or it may mean we take off our AAFO hats and simply register people to vote without discussing politics at the Cancer Society Fun Run.
IRS law is an obscure subject, and we don't expect everyone to have a ready familiarity with it. But what's far more disturbing than a lack of knowledge is the fact that some people are so terrified at the prospect of Americans voting that they are willing to engage in scare tactics and fear mongering to prevent citizens from exercising their most fundamental right - the very foundation of our democracy. These people who claim to cherish our freedoms are willing to go to extraordinary lengths to prevent their fellow citizens from exercising them. It all raises the question, "What are they so afraid of?"
COAT and their ilk can whine, complain, and even threaten, while we ACT.
How you can make a difference today:
1. Register you or someone else to vote.
2. Sign up on the Obama Voter Registration Action Center to help with voter registration events in your community.
3. Attorneys and law students can volunteer for Counsel for Change and attend an Asian American Legal Defense and Education Fund training to help protect voters from intimidation by the likes of COAT.
4. Follow Eugenia's example and donate $5 to the Obama campaign for every troll comment we get.