“Thou shalt not endorse candidates for public office” is probably the First Commandment of 501(c)(3) organizations. Former judge Roy Moore is big on commandments. There was a big controversy about him displaying the ten commandments in his courtroom. That didn’t end well. Anyway, the Foundation for Moral Law, which he founded and his wife presides over, stands accused of violating the rules about endorsing a candidate – specifically Roy Moore himself who is in a Republican run-off primary for the Senate seat that Jeff Sessions left when he became attorney general. President Trump and the Republican establishment are backing Luther Strange, who is now holding the seat on an interim basis.
The charge was made by the Campaign Legal Center in the form of a letter to the IRS requesting an investigation. Asking the IRS to look into a charity backing a right wing political candidate is probably not the best use you can make of your time, but I should probably describe the players before I score the game. They are both 501(c)(3) organizations so you can see a lot of their financial data. Here is Form 990 for CLC and Form 990 for FML
About Campaign Legal Center
The campaign legal center is a nonpartisan organization that focuses on election law. It was founded by Trevor Potter. Mr. Potter was appointed to the Federal Election Commission by the first President Bush. He served as general counsel to John McCain’s 2000 and 2008 campaigns. Here is what they say about themselves.
The Campaign Legal Center is committed to protecting our democratic system. A healthy democracy requires an engaged citizenry and functioning civic processes that allow citizens’ voices to be heard and that ensure public officials can be held accountable. We employ a variety of strategies to protect and improve the democratic process—litigating in courts to defend pro-democracy policies and challenge anti-democracy policies, participating in regulatory agency proceedings to interpret and enforce the law, and drafting pro-democracy laws and policies and advocating their adoption. We engage in this work at every level of government—municipal, county, state and federal.
Encouraging the IRS to look at violations of rules against 501 organizations engaging in politics is definitely in CLC’s wheelhouse, but compared to Crossroads GPS which they took on several years ago, FML is pretty small time.
Foundation for Moral Law
I think one way of characterizing FML would be that if you want to say “Merry Christmas”, they have your back. I thought of them as kind of a foil of the Freedom From Religion From Foundation. Here is an example of something FML has taken on:
The Foundation for Moral Law took strong issue with a letter from Americans United for Separation of Church concerning a sign in the Union City, Indiana Police Department Building.
The sign simply reads: “John 15:13 Greater love hath no man than this, that a man lay down his life for his friends.” In its January 27 letter, Americans United demanded that the sign be removed because it allegedly constitutes an official endorsement of religion.
The Foundation responded on February 16, citing numerous federal cases which hold that publicly-displayed sayings like “With God All Things Are Possible” and “In God We Trust” are protected by the First Amendment
Some of the things FML backs strike me as less benign.
The Foundation for Moral Law argued to the Alabama Supreme Court that Alabama courts should not be forced to recognize a California court order stating that an Alabama mother, now married to a man, must allow her former lesbian lover in California visitation rights with the mother’s biological child. The State of Alabama is not required by the ‘full faith and credit clause’ of the U.S. Constitution to recognize something which is directly contrary to its law and public policy and to the federal Defense of Marriage Act.
What I do like is that we live in a country where things like this get sorted out in the courts. Here is a rundown of FML’s cases for you to pick your favorite from.
The Complaint
This extract from the letter that will give you a sense of what CLC is complaining about:
On May 10, 2017, FML sent an email to subscribers titled, “Foundation for Moral Law First Quarter 2017 Report.” The email newsletter stated that “the specially appointed Alabama Supreme Court released its decision in Chief Justice Moore’s case, and they affirmed the sentence suspending him from his office without pay for the rest of his term. But God, in His sovereignty and grace, has opened another door for Chief Justice Moore to run for higher office! What the enemy meant for evil, God worked for good.” FML’s newsletter also provided updates on Moore’s speaking engagements, suggesting FML still considers him as playing an active role in the entity. The May 10 newsletter concluded with a section titled “UPDATE on Our Founder: Chief Justice Moore’s Appeal and Future.” In bold, underlined, italicized font, FML’s newsletter stated:
The press and the public have been wondering for some time now whether the Chief Justice is going to run for a higher office, such as governor or senator. After prayerful consideration and consultation with many advisors, Chief Justice Moore will announce on Wednesday, April 26, that he will be running for U. S. Senate, replacing Senator Jeff Sessions who is now the U. S. Attorney General! At the Foundation, we believe that God, in His timing, vindicates the righteous. We believe that God has opened the door for Chief Justice Moore and we believe that he is going to win!
There is more, but it is pretty much in the same vein. FML is kind of updating supporters on what the founder is up to – you know running for the Senate and all – and they are wishing him well.
I spoke with Attorney Matthew Clark of FML. He provided me with the same response that he had given to reporters a few days ago
The Foundation for Moral Law has and will always abide by the rules set forth by the Internal Revenue Service. The CLC’s sudden interest in the Foundation is politically-motivated, and we suggest they abide by the rules for political engagement to which they are supposedly so committed.
Is There A Violation?
Coming up on the 2008 election the IRS issued Revenue Ruling 2007-41 which sought to illustrate what constituted participating and intervening in campaigns by describing 21 hypothetical situations. The activity that CLC is complaining about probably falls somewhere between two situations, one of which represents intervention (Situation 4) and one of which does not (Situation 12).
Situation 4. President B is the president of University K, a section 501(c)(3) organization. University K publishes a monthly alumni newsletter that is distributed to all alumni of the university. In each issue, President B has a column titled “My Views.” The month before the election, President B states in the “My Views” column, “It is my personal opinion that Candidate U should be reelected.” For that one issue, President B pays from his personal funds the portion of the cost of the newsletter attributable to the “My Views” column. Even though he paid part of the cost of the newsletter, the newsletter is an official publication of the university. Because the endorsement appeared in an official publication of University K, it constitutes campaign intervention by University K.
Situation 12. University X is a section 501(c)(3) organization. X publishes an alumni newsletter on a regular basis. Individual alumni are invited to send in updates about themselves which are printed in each edition of the newsletter. After receiving an update letter from Alumnus Q, X prints the following: “Alumnus Q, class of ‘XX is running for mayor of Metropolis.” The newsletter does not contain any reference to this election or to Alumnus Q’s candidacy other than this statement of fact. University X has not intervened in a political campaign.
Of course, it is complicated. Roy Moore was the founder of FML and his wife runs it. So it is reasonable to let supporters know what is going on with him. Endorsing him is another matter of course. Here is the statement that CLC highlighted.
The press and the public have been wondering for some time now whether the Chief Justice is going to run for a higher office, such as governor or senator. After prayerful consideration and consultation with many advisors, Chief Justice Moore will announce on Wednesday, April 26, that he will be running for U. S. Senate, replacing Senator Jeff Sessions who is now the U. S. Attorney General! At the Foundation, we believe that God, in His timing, vindicates the righteous. We believe that God has opened the door for Chief Justice Moore and we believe that he is going to win!
The one thing that is missing in my mind to make that an endorsement is any encouragement for supporters to go out and vote for Roy Moore. Arguably, their is an implicit message that you really don’t need to worry about it. God is taking care of it and if it works out that Roy Moore doesn’t win then God will have an even better job lined up for him. On the other hand if God is backing a candidate, you probably should vote for him, so maybe it is an endorsement.
What’s The Point?
Paul Streckfus picked this up in the EO Tax Journal 2017-186 reprinting CLC’s letter. His comment was:
My initial reaction to the complaint letter to the IRS, reprinted below, was why do these groups even bother. We know the IRS isn’t about to open an examination of an organization with clout, lest it have severe political repercussions. But then I thought, if the IRS’ EO Division refuses to do audits in even the most egregious situations, why do we even have an EO Division? Shouldn’t we just turn off the lights If the EO Division will never take on a controversial case and move the employees elsewhere?
Of course we know any strong action by the EO Division would probably be negated by the Offices of Chief Counsel and Appeals and the Department of Justice. One more reason why we have to remove all the bureaucratic clutter that results in lowest-denominator decision-making.
This, in a way, confirms Matthew Clark’s criticism of the CLC. CLC cannot really expect that the IRS will do anything in response to this complaint, making its publication, arguably, political intervention on its part in an internecine struggle within the Republican Party.
Other Coverage
The story was picked up by Breitbart which framed it as Soros-Backed Organization Attacking Moore As Battle With Luther Strange For Senate Seat Heads To Tuesday Vote. The Jennifer and Jonathan Allan Soros Foundation is listed as a contributor on the CLC website. That’s what makes them “Soros-backed”.
Alabama Senate Hopeful Roy Moore’s Charity May Run Afoul with the IRS was the headline at Alabama Public Radio,
The Campaign Legal Center is urging the IRS to open their own investigation. They could potentially strip the foundation’s tax-exempt status or impose excise taxes on the group. The Foundation for Moral Law says they abide by IRS rules, and accuse the CLC’s interest as politically motivated
I have to say that the tax geek consensus on the chance that the IRS will take any action on this matter is on the none side of “slim and none”.